Dismissed

Mallikarjuna Hugar S/O. Ayyappa Hugar, v. Manohar S/O. Hanumanthappa Iliger

Karnataka HC17 Mar 2021CRL.A/2547/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal under Section 378 Cr.P.C. filed by the complainant against an acquittal in a Section 138 NI Act case. The Court held that the complainant failed to discharge the initial burden of proving the legally recoverable debt and that the accused never admitted the signature on the cheque, warranting acquittal.

What did the court decide?

The appeal was dismissed as it was devoid of merits; the acquittal of the respondent was upheld.

Mallikarjuna Hugar S/O. Ayyappa Hugar, Vs Manohar S/O… — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF MARCH 2021

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G.UMA

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CRIMINAL APPEAL NO.2547/2012

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BETWEEN:

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MALLIKARJUNA HUGAR S/O. AYYAPPA HUGAR, AGE: 49 YEARS, OCC: AGRICULTURIST, R/O: RAYAR ONI, GANGAVATHI, TQ: GANGAVATHI, DIST: KOPPAL.

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...APPELLANT

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(BY SRI: B SHARANABASAWA, ADV.)

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AND:

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MANOHAR S/O. HANUMANTHAPPA ILIGER, AGE: 54 YEARS, OCC: BUSINESS AND FORMER PRESIDENT, TALUKA BLOCK CONGRESS COMMITTEE, BADAMI, DIST: BAGALKOT. NOW R/AT: WEEKLY MARKET, WARD NO.7, BEHIND SBH, GANGAVATHI, DIST: KOPPAL.

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…RESPONDENT

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(BY SMT: ANUSHA SANGAMI, ADV. FOR SRI: S.K.KAYAKMATH,)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER DATED 29.11.2011 PASSED BY THE PRL. CIVIL JUDGE & JMFC, GANGAVATHI IN C.C.NO.451/2008 AND CONVICT THE RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF N.I. ACT, BY ALLOWING THE ABOVE APPEAL.

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THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant-complainant is before this Court assailing the impugned judgment of acquittal dated 29.11.2011 passed in CC No.451/2008 by the learned Principal Civil Judge and JMFC, Gangavati, (for short ‘the Trial Court’), acquitting the respondent-accused for the offence punishable under Section 138 of Negotiable Instruments Act, (hereinafter referred to as ‘the N.I.Act’ for the sake of brevity).

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Brief facts of the case are that, the complainant filed a private complaint in

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P.C.R.No.4/2006 before the Trial Court against the accused for the offence punishable under Section 138 of the N.I.Act. It is stated that on 16.9.2005, accused had borrowed a hand-loan of Rs.70,000/- to

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meet his family necessity agreeing to repay the same within 15 days. Subsequently, the accused failed to repay the loan amount. But, however, he issued the cheque bearing No.809058 dated 07.11.2005 for Rs.70,000/- towards repayment of legally recoverable debt and assured that cheque will be honored on of presentation. Accordingly, the complainant presented the cheque for encashment through his banker. The cheque came to be dishonored for the reason that there was insufficient funds in the account of the accused. The complainant got issued legal notice informing the accused about the dishonor of cheque, and calling upon him to repay the cheque amount. The said notice was served on the accused, but he has not chosen to repay the cheque amount, nor he has issued the reply. Thereby, the accused committed the offence punishable under Section 138 of the N.I. Act and requested the Trial Court to take cognizance of the offence and to initiate legal action.

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After taking into consideration the materials on record, the Trial Court took cognizance

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of the offence and C.C.No.451/2008 was registered against the accused for the above said offence. The accused appeared before the Trial Court and pleaded not guilty for the charges leveled against him. Thereafter, the complainant got examined PWs.1 to 3 and got marked Exs.P1 to P5 in support of his contention. Accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. and examined himself as DW1. Exs.D1 to D16 were marked during cross examination of PW1. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the complainant is not successful in proving the guilt of the accused for the offence punishable under Section 138 of the N.I. Act. Accordingly, acquitted the accused by extending the benefit of doubt. Being aggrieved by the said judgment of acquittal passed by the Trial Court, the complainant is before this Court.

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Heard Sri.B. Sharavanabasawa, learned counsel for the appellant and Smt.Anusha Sangami,

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learned counsel for Sri.S.K.Kayakamath, learned counsel for the respondent. Perused the materials including the Trial Court records.

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Learned counsel for the complainant submitted that the complainant has made out specific case of lending Rs.70,000/- to the accused and in discharge of legally recoverable debt, accused No.1 issued Cheque-Ex.P1. Admittedly, the said cheque belongs to the accused and was dishonored as there was insufficient funds in the account of the accused. Accused has not raised any defence nor probabalised the same. The complainant produced all relevant documents and during cross examination, nothing has been elicited from him to disbelieve his version. Thereby, the complainant is successful in proving the guilt of the accused for the offence punishable under Section 138 of the N.I. Act. The Trial Court committed an error in not considering these facts and circumstances. Therefore, the impugned judgment of acquittal passed by the Trial Court is liable to be set

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aside and prays for allowing the appeal and to convict the accused for the above said offence.

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Per contra, learned counsel for the accused/respondent supporting the impugned judgment of acquittal passed by the Trial Court submitted that the complainant though contended that he had lent hand-loan of Rs.70,000/- to the accused, failed to prove the same. Exs.D1 to D16 came to be marked during cross examination of PW1. These documents show that the complainant is a money lender without having any licence and he makes use of the blank cheques to file false complaints and suit for recovery of the amount. According to the complainant, this is the first transaction, where the complainant lent Rs.70,000/to the accused and the accused had issued the cheque in question. But during cross examination, he specifically admitted that the accused had lodged the complaint with Gangavathi Police on 07.04.2006. He also admits that the accused had filed the complaint with Assistant Registrar of Cooperative Societies

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against the complainant. Under such circumstances, it is clear that the complainant after making use of the blank cheques which were was given by the accused when he had availed loan of Rs.5000/- on the earlier instances and misused the same by filling it up with imaginary figures. Under such circumstances, the complainant has failed to discharge his initial burden to prove the existence of legally recoverable debt and also issuance of cheque by the accused. The Trial Court has taken into consideration all these facts and circumstances and proceeded to acquit the accused. There are no illegality or perversity in the impugned judgment of acquittal. Hence, learned counsel for the appellant prays for dismissal of the appeal as devoid of merits.

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In view of the rival contentions urged by learned counsel for both the parties, the point that arises for my consideration is:

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“Whether the appeal is liable to be allowed?”

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My answer to the above point is in ‘Negative’ for the following:

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REASONS

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It is the specific contention of the complainant in the private complaint that the accused had availed loan of Rs.70,000/- on 16.09.2005 to meet his family necessity. Towards discharge of the said loan, the cheque dated 07.11.2005 was issued by the accused, drawn on State Bank of Hyderabad, which is as per Ex.P1. The said cheque is admittedly dishonoured as there was insufficient funds in the account of the accused. During cross examination of PW1, he denied that he is doing money lending business and lending the amount to several persons and also filed several complaints. However, he admitted Exs.D1 to D16, which were tendered to him by the learned counsel for the accused. The complainant admitted that he had lent money to so many other persons and also filed complaints and suits to recover the loan amount.

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It is pertinent to note that the complainant

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admitted during cross examination that the accused had lodged the complaint dated 07.04.2006 against

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him with Gangavathi police. He further admits that on 15.04.2006, accused had lodged another complaint with the Assistant Registrar of Cooperative Societies, but strangely neither complainant nor the accused have produced those documents. However, since initial burden of proving existence of legally recoverable debt is on the complainant, he should have explained as to why the accused had lodged the complaint on 07.04.2006 with Gangavathi police and another complaint dated 15.04.2006 with the Assistant Registrar of Cooperative Societies.

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It is pertinent to note that the accused has taken a defence that, during 2002, he had availed hand-loan of Rs.5,000/- from the complainant and the complainant while lending loan amount, had deducted the interest and had paid a portion of the amount. Subsequently, the accused had repaid the said amount. The accused had issued blank cheque even without his signature and blank pro-note to the complainant. But inspite of repaying the loan amount, those documents were not returned by the

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complainant. Of course, this contention of the accused is denied by the complainant. However, the question arises as to why the accused had lodged the complaint dated 07.04.2006 with Gangavathi police and another complaint on 15.04.2006 with Assistant Registrar of Cooperative Societies. The complainant has not explained about these complaints, even after admitting filing of the said complaints. When the complainant stated during cross examination that loan amount of Rs.70,000/- on 16.09.2005 was the first transaction he had transacted with the accused, the question of accused filing complaint with the police against the complainant would not have arisen. It is not the contention of complainant that the accused had filed the complaint with Gangavthi Police, in respect of the present transaction. Under such circumstances, the defence taken by the accused that he had borrowed hand-loan from the complainant and had given blank cheque assumes importance and it is for the complainant to explain these facts and circumstances.

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The tenor of cross examination of PW1 by

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the learned counsel for the accused discloses that the accused has categorically denied his signature found on the cheque-Ex.P1. But the complainant has not taken any steps to prove the signature of the accused found on the cheque- Ex.P1. The Trial Court record discloses that the accused had never admitted his signature found on the cheque- Ex.P1. Under such circumstances, heavy burden lies on the complainant to establish his contention that the accused had issued the cheque in question in his favour. Therefore, I am of the opinion that the complainant has failed to discharge his initial burden of proving lending of loan amount to the accused and issuance of cheque-Ex.P1 by the accused towards discharge of the legally recoverable debt. When the complainant has not discharged his initial burden, the accused is not required to take any defence or probabalise the same. Under such circumstances, I am of the opinion that the complaint filed by the complainant against the accused alleging commission of the offence

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punishable under Section 138 of the N.I. Act, is liable to be dismissed as the complainant has not discharged his burden to prove the commission of offence by the accused beyond reasonable doubt. As a result of which, the accused is entitled for the benefit of doubt and he is to be acquitted.

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I have gone through the impugned order of acquittal passed by the Trial Court. It has taken into consideration these facts and circumstances and has arrived at a right conclusion in acquitting the accused. I do not find any reason to interfere with the same. Hence, I answer the above point in ‘Negative’.

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Accordingly, the appeal being devoid of merits

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is dismissed.

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Sd/JUDGE

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Vmb/kgk

Mallikarjuna Hugar S/O. Ayyappa Hugar, v. Manohar S/O. Hanumanthappa Iliger

Case brief

What is this about?

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Mallikarjuna Hugar S/O. Ayyappa Hugar, v. Manohar S/O. Hanumanthappa Iliger

Case brief

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