The High Court dismissed the criminal appeal filed by a complainant challenging the acquittal of the respondent accused. The court held that the cheque was not issued for a legally enforceable debt as the complainant failed to prove his financial capacity to advance the loan amount.
The criminal appeal filed under S. 378(4) Cr.P.C. stands dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.1227 OF 2019 (A)
BETWEEN:
…APPELLANT
(BY SMT. SPOORTHY HEGDE N., ADVOCATE)
AND:
Digitally signed by SOWMYA D Location: High Court of Karnataka
(BY SRI. VIJAYAKUMAR S.C., ADVOCATE)
…RESPONDENT
CRL.A. FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 29.04.2019 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC HOSADURGA IN C.C.NO.134/2017-
NC: 2023:KHC:45747 CRL.A No. 1227 of 2019
ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S.138 OF N.I.ACT AND ETC.,
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 378(4) of Cr.P.C.
by the appellant/complainant challenging the judgment of acquittal passed by the Principal Civil Judge and JMFC, Hosadurga, in C.C. No.134/2017, dated 29.04.2019.
That the accused is well acquainted with the complainant for a long time and he approached the complainant on the last week of September 2016 for a hand loan of Rs.10,00,000/- for his family necessity. The complainant has advanced hand loan of Rs.10,00,000/- to
the accused for a period of two months. When the complainant sought for repayment of the loan amount paid to the accused, the accused has issued a cheque bearing No.787267 dated 02.12.2016 of State Bank of Mysore, Channagiri Branch for a sum of Rs.10,00,000/-. When the said cheque was presented for encashment, the same was returned with endorsement as 'funds insufficient'. Then the complainant has got issued a statutory notice to the accused but, the accused did not respond the same. Hence, he filed a complaint under Section 200 of Cr.P.C. before the learned Magistrate.
brother of accused was examined on behalf of the complainant as P.W.2. The complainant has also placed reliance on 12 documents marked at Exs.P.1 to P.12. After conclusion of the evidence of the complainant the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him and case of the accused is of total denial. He did not choose to lead any oral or documentary evidence in support of his defence.
appreciating the oral and documentary evidence, the learned Magistrate has acquitted the accused for the offence under Section 138 of N.I. Act by exercising his powers under Section 255(1) of Cr.P.C.
the complainant/appellant is before this Court by way of this appeal.
NC: 2023:KHC:45747 CRL.A No. 1227 of 2019
counsel for the appellant and the learned counsel for the respondent. Perused the records.
the land along with his brother and the delivery challan produced were said to have been issued by one Akram Basha of Hosadurga but, these delivery challans were from Chennai. The complainant claims that he planted fifteen hundred Pomegranate plants and he purchased those Pomegranate plants from one Subbanna, Bajjappana Hatti, Hosadurga. But, no documents have been produced. He would contend that the evidence of P.W.2 is not trust worthy as relationship between accused and P.W.2 are strained, though they are brothers. It is contended that the cheque was issued for maintenance to be paid to the mother and the said cheques have been misused. As such, he would contend that the learned Magistrate has appreciated the oral and documentary evidence in proper prospective and has rightly acquitted the accused, which does not call for any interference.
NC: 2023:KHC:45747 CRL.A No. 1227 of 2019
"Whether the judgment of acquittal passed by the learned Magistrate is perverse, arbitrary or erroneous so as to call for any interference by this Court"?
Chennai. But, the complainant in his cross-examination claimed that he has sold the Pomegranates to one Akram Basha of Hosadurga. He never asserted that he has sold the Pomegranates through the Commission Agent, Chennai. Even the author of Exs.P.6 to P.8 is not examined and hence, Exs.P.6 to P.8 does not establish the claim of the complainant regarding his financial status.
6. “Cheque”. —A “cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.
Explanation I. —For the purposes of this section, the expressions—
(a) “a cheque in the electronic form” means “a cheque drawn in electronic form” by using any computer resource and signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system; or with electronic signature, as the case may be:
(b) “a truncated cheque” means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substituting the further physical movement of the cheque in writing.
Explanation II. —For the purposes of this section, the expression “clearing house” means the clearing house managed by the Reserve Bank of India or a clearing house recognised as such by the Reserve Bank of India.]
Explanation III. —For the purposes of this section, the expressions “asymmetric crypto system”, “ computer resource”, “digital signature”, “electronic form” and “electronic signature” shall have the same meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000).
Section 138 of N.I. Act mandates that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability.
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presumption under Section 139 of N.I. Act cannot be
drawn in favour of complainant in view of these lapses.
circumstances, it is evident that the cheque was not issued towards any legally enforceable debt.
O R D E R
The appeal stands dismissed .
Sd/JUDGE
MS*
List No.: 1 Sl No.: 13
1 issue framed by the court
Whether the judgment of acquittal passed by the learned Magistrate is perverse, arbitrary or erroneous so as to call for any interference by this Court?
4 provisions across 2 enactments
Sri Puttappa
Sri B Rangaswamy
Rajendra Badamikar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
