Allowed

A. Ashok Kumar v. v. Venkatesha

Karnataka HC22 Dec 2020CRL.A/723/2014

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal filed by the complainant against the acquittal of the accused. Overturning the trial court's decision which emphasized the complainant's lack of documentary proof of lending capacity, the High Court held that the accused failed to substantiate the charge of misappropriation of a chit fund cheque. Consequently, the complainant's conviction and sentencing w

What did the court decide?

The judgment of the trial court acquitting the accused is set aside. The complainant is allowed; the accused is convicted under Section 138 NI Act and sentenced to a fine of Rs. 1,80,000/-. Time for p

A. Ashok Kumar Vs v. Venkatesha — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^nd DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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CRIMINAL APPEAL No.723/2014

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BETWEEN:

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A ASHOK KUMAR S/O ANANDA RAO AGED:52 YEARS NEAR DASAPPA HOUSE VIDYANAGAR MYSORE – 570 011. …APPELLANT

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(BY SRI S N BHAT, ADVOCATE)

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AND:

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V VENKATESHA S/O LATE VENAKTAIAH AGED:61 YEARS R/A No.142, 4^TH CROSS TANK ROAD, N.R.MOHALLA MYSORE. AND PRESENT ADDRESS SECURITY OFFICE ST.JOSEPH HOSPITAL BANNIMANTAPA BANGALORE ROAD MYSORE – 570 015. …RESPONDENT

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(BY SRI P NATARAJ, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:7.3.2014 PASSED BY THE IV ADDITIONAL I C.J. AND JMFC, MYSORE IN C.C.No.376/2006- ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT.

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THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal is directed against the judgment dated 07-03-2014 passed in CC No.376/2006 by the

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4th Additional Ist Civil Judge & JMFC, Mysore, wherein, the accused was acquitted in the complaint filed under Section 200 Cr.P.C. for the offence punishable under Section 138 of N.I. Act. Being aggrieved by the same, the complainant has come in appeal.

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In order to avoid confusion and overlapping,

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the parties are addressed in accordance with the rankings held by them before the trial court.

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The substance of the case of the complainant is, accused borrowed a sum of

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Rs.1,75,000/- from the appellant/complainant and for repayment of the said amount, he issued a cheque for Rs.1,75,000/- bearing No.0948032 drawn on Indian Overseas Bank, Yadavagiri Branch, Mysore and the same was presented by complainant/appellant in the Karnataka Bank Limited, Siddartha Layout, it was returned with an endorsement ‘account closed’. Thereafter, complainant issued statutory notice on 22-07-2006 and complied the formalities of the criminal case.

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After recording sworn statement of

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complainant, cognizance was taken against the

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accused for the offence punishable under Section 138

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of N.I. Act. On issuance of summons accused appeared through his counsel and took up the contention admitting the issuance of cheque and signature found on it. However, his defence is that, he has not borrowed any amount from the complainant.

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Learned trial judge was accommodated with the oral evidence of PW-1 Ashok Kumar and documentary evidence of Exs.P1 to P7 on behalf of the complainant. On the other hand, accused got examined himself as DW1 and has not produced any documentary evidence.

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With this, learned trial judge upon conclusion of trial held that accused was not found guilty of the offence and acquitted him. The same is challenged by the complainant in this appeal.

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Learned counsel Sri S.N.Bhat, for

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complainant would submit that the issuance cheque is admitted and the explanation given by the accused can not accepted. The capacity of the complainant to lend is questioned, but he had mobilized the money and lent it to the accused.

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Learned counsel Sri.P.Nataraju, for the accused would submit that firstly, complainant had no capacity to lend money; secondly, there is no transaction between the complainant and the accused and thirdly, accused never borrowed any money from the complainant.

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The learned trial judge has relied upon the following citations:

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(i) G. Veershan Vs. Shivashankar and another reported AIR 2007 NOC 2612;

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(ii) Shiva Murthy Vs. Amruthraj reported in ILR 2008 Karnataka 4629.

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(iii) B.Indramma Vs. Sri. Eshwar reporte din ILR 2009 Karnataka 2331.

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Nodoubt, the presumption under Section

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138 or 139 of N.I. Act, straight away come to the aid

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of the complainant to prove the case, but the circumstances are different.

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The learned trial judge observes that the moment issuance of cheque and signature on the cheque is admitted, one cannot come to a conclusion. Learned trial judge also observes that, the complainant has not produced the documents to state that he had capacity to pay. The capacity to pay concept has to be considered considering the attending circumstances and not through documents. Every villager who has no bank account if he wants to

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lend money he could not be asked to get the pan card and the bank statement. The amount advanced herein is Rs.1,75,000/-.

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Another aspect which I want to focus is,

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there are two sides of denial. One is denial of the averments of the complainant and another one is as to issuance of cheque, lending capacity, legally recoverable debt so on and so forth. This is complete denial and the responsibility is also shouldered on the complainant. But when a specific case or a specific plea is taken by a other party apart from denial, the onus is on him to establish that circumstances. For example, in this case, it is not only denial of the accused makes, on the other hand he tells that he had subscribed for chit business that was run by Mahalakshmi and has issued the cheque and due to the mis understanding between Mahalakshmi and the accused she has given the cheque to the complainant

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to file a criminal case. In this connection, who is that Mahalakshmi, what is her business, how much amount per chit was paid, what was the position of the cheque whether signed or blank and these are not mentioned or not established. The accused fails regarding his stand before the court. I find learned trial judge seriously erred in dismissing the compliant. The said judgment is liable to be set aside.

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In the result, the appeal is allowed. The

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judgment and order dated 07-03-2014 passed in CC No.376/2006 by the learned trial Judge is hereby set aside.

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The complaint of the complainant is allowed. The accused is found guilty for having committed the offence punishable under Section 138 of N.I. Act and he is sentenced to pay a fine of Rs.1,80,000/-. Within two months from today.

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Out of which, Rs.1,75,000/- shall be paid

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to the complainant as compensation and remaining Rs.5,000/- shall be adjusted to the State account. In case of failure to comply the same, the accused shall undergo simple imprisonment for a period of one year.

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At this stage, learned counsel for accused submits that because accused is a Security guard, he has to mobilize the money and three months time may be granted. His submission is accepted. Time limit is extended to three months.

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Sd/JUDGE

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tsn*

A. Ashok Kumar v. v. Venkatesha

Case brief

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A. Ashok Kumar v. v. Venkatesha

Case brief

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