Dismissed

Sri K Suresh Shettigar v. Sri Ganesh Acharya

Karnataka HC8 Dec 2023CRL.A/1295/2019

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed an appeal challenging an acquittal order under Section 130 of the Negotiable Instruments Act. The court held that the complainant's own admissions and pleadings rebutted the presumption of legally enforceable debt, as the cheque amount exceeded the admitted principal and included uncontracted interest.

What did the court decide?

Appeal against acquittal dismissed.

Sri K Suresh Shettigar Vs Sri Ganesh Acharya — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC:44677 CRL.A No. 1295 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL APPEAL NO. 1295 OF 2019

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BETWEEN:

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SRI. K. SURESH SHETTIGAR, S/O SRI. LINGAPPA SHETTIGAR, AGED ABOUT 71 YEARS, R/AT DOOR NO.2-3-86 E 2 INDRAPRASTHA GARADI ROAD, BANNANJE, UDUPI-576 101.

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…APPELLANT

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(BY SRI. PRASANNA .V.R, ADVOCATE) AND:

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Digitally signed by SOWMYA D Location: High Court of Karnataka

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SRI. GANESH ACHARYA, FATHER’S NAME NOW KNOWN TO THE APPELLANT, AGED MAJOR, R/AT NEAR VEERA VITTALA TEMPLE, MATADANGADI, UDYAVARA VILLAGE, UDUPI TALUK AND DISTRICT-576 105.

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…RESPONDENT (BY SRI. HAREESH BHANDARY .T, ADVOCATE) THIS CRL.A FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 23.02.2019 PASSED BY THE III ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI IN C.C.NO.2286/2015 - ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S 138 OF THE N.I ACT.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC:44677 CRL.A No. 1295 of 2019

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JUDGMENT

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This appeal is filed by the complainant / appellant under Section 378 (4) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C' for short) challenging the judgment of acquittal passed by III Additional Civil Judge and JMFC, Udupi in C.C.No.2286/2015 dated 23.02.2019.

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For the sake of convenience, the parties herein are

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referred with original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case are as under:

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That the complainant is a taxi driver and carrying business for many years in Udupi. He has developed intimacy and friendship with accused. In the month of October 2012, the accused persuaded the complainant to pay a sum of Rs.1,50,000/- for his urgent need. In view of the repeated persuasion and the trust reposed upon him, the complainant on 18.10.2012 paid a sum of Rs.1 Lakh and on 30.10.2012 a further sum of Rs.50,000/- was paid. The accused promised the complainant to repay the said amount within 6 months from

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October 2012. After expiry of six months period, accused failed to repay the loan amount and when the complainant insisted for the same, he has issued a cheque bearing No.790098 drawn on Indian Overseas Bank, Manipal dated 12.05.2015 for a sum of Rs.2,25,000/-, which is compounded with interest at the rate of 18% per annum on principal amount of Rs.1,50,000/-. When the said cheque was presented for encashment, it was returned for ‘insufficient of funds’. Thereafter, the complainant got issued a legal notice to the accused and the same was served on the accused, but he did not repay the loan amount. Hence, complainant has filed the complaint under Section 200 of Cr.P.C. against the accused alleging that accused has committed an offence under Section 138 of N.I.Act.

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After recording the sworn statement and after perusing the documentary evidence, the learned Magistrate has taken cognizance of the offence under Section 138 of N.I.Act and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. The plea under Section 138 of N.I.Act is recorded and accused denied the same.

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NC: 2023:KHC:44677 CRL.A No. 1295 of 2019

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The complainant got examined himself as PW1 and placed reliance on 5 documents marked at Ex.P1 to Ex.P5. After conclusion of the evidence of the complainant, the statement of accused under Section 313 of Cr.P.C was recorded to enable him to explain the incriminating evidence appearing against him in the case of the complainant. The case of accused is of total denial.

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After hearing the arguments and after appreciating the oral as well as documentary evidence, the learned Magistrate has acquitted the accused for the offence punishable under Section 138 of N.I.Act by exercising his powers under Section 255(1) of Cr.P.C. Being aggrieved by this judgment of acquittal, the appellant is before this court by way of appeal.

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Heard the arguments advanced by learned counsel for the appellant / complainant and the learned counsel for the respondent / accused. Perused the records.

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The learned counsel for the appellant would contend that the amount was paid on 18.10.2012 and 30.10.2012 by way of bank transfer and the same has not been challenged disputing the advancement of loan. The post dated cheque was

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issued towards discharge of legally recoverable debt including the interest portion for Rs.2,25,000/- and the legal notice though served was not responded and presumption available in favour of the complainant under Section 139 of N.I.Act is not rebutted. It is also asserted by the learned counsel for the appellant that during the cross-examination, the accused has admitted due to the extent of Rs.50,000/- and hence, he would contend that the learned Magistrate has committed an error in acquitting the accused. Hence, he would seek for allowing the appeal by setting aside the impugned judgment of acquittal by convicting the accused.

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Per contra, the learned counsel for the respondent would support the judgment of acquittal passed by the trial court. He would contend that though the accused has admitted availment of loan, the legally enforceable debt is not for Rs.1,50,000/- or Rs.2,25,000/-, but it is only for Rs.50,000/as accused has paid lot of amount in installment. He would also contend that there was no agreement for interest and admission given by the complainant disclose that he himself has written the amount and hence, he would contend that the cheque amount to the tune of Rs.2,25,0000/- is not a legally

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enforceable debt. As such, he would seek for dismissal of the appeal as the presumption stands rebutted in view of the admissions given by the complainant himself.

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Having heard the arguments and perusing the records, now the following point would arise for my consideration:

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(i) Whether the judgment of acquittal passed by the trial court is perverse, arbitrary and erroneous so as to call for any interference by this court?

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It is the contention of the complainant that he has advanced a sum of Rs.1 Lakh to the accused on 18.10.2012 and Rs.50,000/- on 30.10.2012 and in discharge of this debt, the cheque under Ex.P1 came to be issued. The disputed cheque is produced at Ex.P1 and it is drawn for a sum of Rs.2,25,000/-. In the complaint, the complainant no where asserted as to how he made payment of Rs.1,50,000/-. A simple assertion made in the complaint is that he paid the amount in two installment of Rs.1,00,000/- and Rs.50,000/- on 18.10.2012 and 30.10.2012 respectively. Absolutely, neither in the complaint nor in his examination-in-chief, there is no

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assertion that the amount was paid through the banker or post office. However, the complainant has placed reliance on Ex.P5 to show that the amount was paid to the accused by way of cheque on 18.10.2012 and 30.10.2012. This document is not a computer generated document, but it is a certificate given and there is no certification on this that it is as per the records. Even it does not disclose as to who has issued this certificate and whether it is a postal account or a bank account. No pleadings are forthcoming in this regard.

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For the first time in the cross-examination, the complainant has asserted that the amount was paid by cheques. He claims that he has produced the document pertaining to IDBI Bank, but Ex.P5 is not an account statement and only an extract. There is no certification as observed above and in the examination-in-chief, this document was got marked asserting that it is a internet copy taken from the post office, but Ex.P5 is not an internet copy downloaded and complainant could have produced the account statement of IDBI Bank or else he would have examined the author of Ex.P5. Even he has not pleaded regarding payment by way of cheque.

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NC: 2023:KHC:44677 CRL.A No. 1295 of 2019

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Quite contrary to this assertion, in subsequent cross-examination, PW1 states that he paid Rs.1 Lakh in Udupi service bus stand and he never asserts that he paid it by cheque. He further asserts that the balance of Rs.50,000/- was paid in bus stand, but he never claimed that it is again by way of a cheque.

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All along, it is asserted that the accused voluntarily endorsed the figure of Rs.2,25,000/- including Rs.75,000/towards interest portion. Admittedly, no document is produced to show that there is any contract regarding payment of interest. In the absence of any contract, on what basis complainant is claiming interest at the rate of 18% per annum is not at all forthcoming. He further admits in his further crossexamination that he has endorsed Rs.75,000/- excess amount pertaining to interest. When all along it is asserted that the contents of the cheque were written by the accused, but the complainant himself in his cross-examination admits that he written excess amount of Rs.75,000/- towards interest. This admission of complainant completely falsifies the claim of the complainant.

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In the cross-examination, accused has not disputed the transaction and further the complainant specifically asserts that he has not paid the amount on interest. Further, the cross-examination discloses that the accused has not disputed his liability to the extent of Rs.50,000/-. PW1 admits that he visited the house of the accused twice for demanding the amount and when he visited the house for the second time, the accused has lodged a complaint against him. When a suggestion was made to him that before police he has given an undertaking that he was due to the extent of Rs.50,000/-, he denied this aspect and asserts that at the instance of police, he has given such statement. He denied that he received Rs.5,000/- to Rs.10,000/- on many occasions from accused and accused is only due to the extent of Rs.50,000/-.

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All along, the complainant has asserted that he is required to receive Rs.2,25,000/- from complainant, which is the cheque amount and notice was issued demanding Rs.2,25,000/- i.e., the cheque amount only. But the assertions made in the complaint itself discloses that he has advanced actually Rs.1,50,000/-. Admittedly, there is no contract for interest between the parties and under such circumstances,

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question of complainant seeking interest to the extent of Rs.75,000/- does not arise at all. When the cheque amount is more than the liability as asserted by the complainant to the tune of Rs.1,50,000/-, the offence under Section 138 of N.I.Act is not attracted. The cross-examination of the complainant

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and the pleadings in the complaint itself rebut the presumption available in favour of the complainant under Section 139 of N.I.Act. Had the complainant initiated the prosecution only for Rs.1,50,000/- though the cheque was issued for Rs.2,25,000/things would have been different. Admittedly, Rs.2,25,000/- is not a legally enforceable liability. Under such circumstances, question of convicting the accused for the offences punishable under Section 138 of N.I.Act does not arise at all.

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The learned Magistrate has considered all these aspects in its proper perspective and in detail he has analyzed the oral and documentary evidence. He has also considered the number of citations relied by either of the parties and has rightly acquitted the accused. No perversity or illegality is found in the judgment of acquittal so as to call for any interference by this court. Hence, the appeal is liable to be dismissed. As such, the point under consideration is answered

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NC: 2023:KHC:44677 CRL.A No. 1295 of 2019

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in the negative and accordingly, I proceed to pass the following:

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O R D E R

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(i) The appeal stands dismissed.

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Sd/JUDGE

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List No.: 1 Sl No.: 10

Sri K Suresh Shettigar v. Sri Ganesh Acharya

Case brief

What is this about?

What did the court decide?

Sri K Suresh Shettigar v. Sri Ganesh Acharya

Case brief

What is this about?

What did the court decide?

What the court decided

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