Karnataka High Court
Sri.Sanjay S/O Ekanath More vs Smt.Arati D/O Ravindra Lengade on 27 March, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 100348 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MARCH 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.100348 OF 2019
BETWEEN:
SRI. SANJAY S/O. EKANATH MORE,
AGED ABOUT: 48 YEARS,
OCC: BUSINESS,
R/AT: KELKARBAG,
BELAGAVI.
...APPELLANT
(BY SRI. SHIVAKUMAR APARAJ, ADVOCATE FOR
SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
SMT. ARATI D/O. RAVINDRA LENGADE,
AGED ABOUT: 43 YEARS,
OCC: SERVICE,
R/AT: SAMBRAM HOSPITAL,
36, STAFF QUARTERS, BEML NAGAR,
KGF, DIST: KOLAR - 563 113.
Digitally signed by ...RESPONDENT
MOHANKUMAR B
SHELAR (BY SRI. JAGADISH PATIL, ADVOCATE)
Location: High
Court of
Karnataka,
Dharwad Bench,
Dharwad
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.
SEEKING TO SET ASIDE THE ORDER OF ACQUITTAL PASSED BY THE
VI ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI PASSED IN
CRL. APPEAL NO.61 OF 2019 DATED 19.08.2019 AND CONFIRM THE
ORDER OF CONVICTION PASSED BY VIII JMFC COURT, BELAGAVI
PASSED IN C.C.NO.277 OF 2017 DATED 18/02/2019 AND CONVICT
THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138
OF N.I. ACT BY ALLOWING THE PRESENT APPEAL IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
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CRL.A No. 100348 of 2019
ORAL JUDGMENT
This appeal is filed by the complainant praying to set
aside the judgment of acquittal dated 19.08.2019 passed
in Crl.A. No.61/2019 by the VI Additional District and
Sessions Judge, Belagavi and confirm the order of
conviction passed in C.C. No.277/2017 dated 18.02.2019
by the learned VIII JMFC Court, Belagavi, and convict the
respondent/accused for offence under Section 138 of the
Negotiable Instruments Act (hereinafter referred to as 'the
IPC', for short).
2. The case of the appellant/complainant is as
under:
The appellant/complainant is the permanent resident
of Belagavi and a businessman by profession and was
also a Chairman of Merchantile Co-operative Credit
Society, Belagavi. The accused is a doctor by profession
and having acquaintance with the complainant through
Shri. Shivaji Hande's wife Mrs. Tejaswini Hande, who is the
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friend of the complainant. The accused being in need of
money for starting a hospital at Kolkatta, had approached
the complainant for financial help. The complainant
having acquaintance, had extended help by financing the
accused Rs.15,00,000/- in the year 2009-10 and the same
was received by the accused from time to time in the year
2009-2010. The accused also availed loan from Mercantile
Co-operative Credit Society, Belagavi, for the very project
and the accused has repaid the loan to the Society. The
accused had assured to return the money within four
years. The transaction was not reduced into writing due to
close acquaintance of the accused through Mrs. Tejaswini
Hande. The accused, on repeated requests by the
complainant to repay the loan amount, had issued a
cheque for Rs.15,00,000/- dated 18.04.2015 drawn on
State Bank of India, Shahapur , Belagavi bearing cheque
No.978115. The said cheque came to be presented by the
complainant for encashment. The said cheque has been
returned dishonoured as "payment stopped by drawer".
The complainant got issued a legal notice dated
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06.05.2015 to the accused and the same has been served
on 12.05.2015. The accused did not pay the cheque
amount and gave reply to the legal notice. As the accused
did not pay the cheque amount, the complainant filed a
private complaint against the respondent/accused for
offence under Section 138 of NI Act. The learned
Magistrate taken cognizance and registered C.C.
No.277/2017 for the offence punishable under Section 138
of NI Act. The plea of the accused has been recorded.
The complainant in order to prove his case, has
examined himself as PW.1 and got marked Exs.P-1 to P-6.
The statement of the accused has been recorded under
Section 313 of the Code of Criminal Procedure. The
learned Magistrate, after hearing the arguments on both
sides, has passed the judgment of conviction dated
18.02.2019 in C.C. No.277/2017. The said judgment of
conviction was challenged by the respondent/accused in
Crl.A. No.61/2019 before the learned VI Additional District
and Sessions Judge, Belagavi. The said appeal came to be
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allowed by judgment dated 19.08.2019 and the order of
conviction passed in C.C. No.277/2017 has been set aside
and the respondent/accused has been acquitted of the
offence under Section 138 of NI Act. The said judgment of
acquittal passed by the Appellate Court has been
challenged in the present appeal by the complainant.
3. Heard the learned counsel for the
appellant/complainant and the learned counsel for the
respondent/accused.
4. Learned counsel for the appellant would
contend that the respondent/accused has admitted her
signature on the cheque-Ex.P-1. As signature on the
cheque is admitted, a presumption has to be drawn under
Section 139 of NI Act. The Appellate Court erred in
acquitting the respondent/accused on the ground that
presumption drawn under Section 139 of NI Act has been
rebutted by the respondent/accused. The very fact that
the respondent/accused has borrowed loan in the name of
other person itself indicates that she has borrowed money
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from the complainant through one Umesh Shetty.
Without considering this aspect, the Appellate Judge has
erred in passing the judgment of acquittal. With this, he
prayed to allow the appeal and restore the judgment of
conviction passed by the trial Court.
5. The learned counsel for the respondent/accused
would contend that, there is no legally enforceable debt.
The complainant has not stated either in his complaint or
in any other documents namely, legal notice or in his
affidavit evidence, regarding he giving amount of
Rs.15,00,000/- through the account of one Umesh Shetty
maintained with IDBI bank. The appellant/complainant
has transferred Rs.15,00,000/- to the account of one
Umesh Shetty, there is no liability on the part of the
respondent/accused to repay the said amount. The said
Umesh Shetty has not been examined by the complainant.
Considering all these aspects, the learned appellate Judge
has rightly acquitted the respondent/accused by the
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impugned judgment. With these, he prayed for dismissal
of the appeal.
6. Having heard the learned counsel, the Court
has perused the impugned judgment and the trial Court
records.
7. Considering the grounds urged, the following
point arises for consideration.
Whether the Appellate Court has erred in
reversing the judgment of conviction passed by the
trial Court and acquitting the accused of the offence
under Section 138 of NI Act?
8. My answer to the above point is in the negative
for the following reasons:
9. It is the specific case of the
appellant/complainant that, he lent Rs.15,00,000/- during
the year 2009-2010 to the respondent/accused for starting
a hospital at Kolkatta. It is the further case of the
appellant that, in order to repay the amount borrowed to
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the respondent, the respondent/accused has issued a
cheque-Ex.P-1. The respondent/accused has not denied
her signature on the cheque-Ex.P-1. As the
respondent/accused has admitted her signature on Ex.P.1,
a presumption has to be drawn under Section 139 of NI
Act that the cheque is issued for discharge of the debt.
The said presumption is a rebuttable presumption.
Standard of proof for rebutting the said presumption is
preponderance of probabilities.
10. It is the defense of the respondent/accused
that, she has not borrowed money from the complainant
and the cheque was issued as a security to her loan
account with Mercantile Co-operative Society, Belgaum,
has been misused by this appellant/complainant as he was
a chairman of the said Co-operative Society. The said
defense has been put forth by the respondent/accused in
reply notice/Ex.P-6.
11. The complainant has not stated either in his
notice-Ex.P-3 or in the complaint or in his affidavit
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evidence that he personally transferred Rs.15,00,000/-
through RTGS to the account of one Umesh Shetty
maintained in the name of Durga Associates with IDBI
Bank. PW.1 in his cross-examination has admitted that he
has transferred Rs.15,00,000/- to Umesh Shetty by RTGS.
PW.1 in his cross-examination has stated that there was
no problem for transferring the said amount of
Rs.15,00,000/- to the account of the accused. He has
stated that, as the accused has requested to transfer the
said amount borrowed to the account of her friend. All
these aspects have not been stated by the complainant in
his legal notice, or the complaint or in his evidence
affidavit. Merely because, the respondent/accused has
borrowed loan in the name of others in the Mercantile
Society, it cannot be said that she has also borrowed loan
from the complainant through one Umesh Shetty. The said
Umesh Shetty has not been examined. PW.1 has admitted
that the respondent/accused has also borrowed loan from
Merchantile Society and it is not repaid by her.
Considering all these aspects, it probablise the defense of
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the respondent/accused. Considering the same, the
respondent/accused has rebutted the presumption drawn
under Section 139 of NI Act that the cheque is issued for
discharge of the debt. The appellant/complainant has not
established borrowing of Rs.15,00,000/- by the
respondent/accused. Without considering these aspects,
the trial Court has erred in convicting the
respondent/accused for the offence punishable under
Section 138 of NI Act and the appellate Court has rightly
considered the evidence and held that presumption under
Section 139 of NI Act has been rebutted by the
respondent/accused. Therefore, no grounds are made out
for setting aside the well reasoned judgment passed by
the appellate Court acquitting the respondent/accused.
In the result, the appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
kmv
CT-ASC
