The High Court of Karnataka dismissed an appeal under Section 378(4) Cr.P.C. filing against the acquittal of the respondent for cheating and forgery under Section 138 of the N.I. Act. The court found the complainant failed to prove legally enforceable debt.
Appeal rejected; acquittal of respondent affirmed.
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.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.259/2020(A)
BETWEEN:
SRI. A. RAMESH ARUN, MANAGING DIRECTOR, M/S R. ARUNACHALAM PROPERTIES CONSULTANTS AND PROMOTERS PVT. LTD., REGISTERED OFFICE AT NO.201, 2ND FLOOR, ROYAL CORNER, NO.1 AND 2, LALBAGH ROAD, BENGALURU-560 027,
AND AT: NO.183, IN BETWEEN SHAKTI HILL RESORTS AND SHANMUKHA TEMPLE, 4TH STAGE, RAJARAJESHWARINAGAR, BENGALURU-560 098, (REPT BY: MR. A. RAMESH ARUN) (BY SRI. PARTHA .M, ADVOCATE)
….APPELLANT
AND:
SMT. S. GIRIJA SHIVARAM, W/O SRI. G. SHIVARAM, R/A NO.35, 2ND MAIN, 3RD CROSS, ITTAMADU EXTN., BEHIND TERRACE GARDEN, III STAGE, BANASHANKARI, BENGALURU-560 085
…. RESPONDENT
(BY SRI. KRISHNA .S. VYAS, ADVOCATE)
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THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED:08.01.2020 PASSED BY THE XX ADDL.C.M.M., BENGALURU IN C.C.NO.4400/2014-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.11.2023, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’), challenging the judgment of acquittal passed by XX Additional Chief Metropolitan Magistrate, Bengaluru City, in CC.No.4400/2014, dated 08.01.2020.
are referred with the original ranks occupied by them before the trial Court.
as under:
The accused is known to complainant since several years and carrying business in the construction and
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development of properties. The complainant had sold 12 acres of land to the accused and said sale deed was duly registered in the sub-registrar office. It is also alleged that complainant had business transaction in connection with buying, selling and marketing properties. In this connection, the accused has issued a cheque bearing No.003326, dated 27.03.2013 for Rs.25,00,000/drawn on Sri Thyagaraja Co-Operative Bank, Channasandra Branch, Uttarahalli, Bengaluru and when the said cheque was presented for encashment through his banker, the same was returned with an endorsement as “funds insufficient”. As per request of the accused, the complainant represented the said cheque again, but again it was returned for “funds insufficient”. Hence, he has issued a legal notice dated 12.06.2013 which was duly served and accused did not respond to the legal notice. Hence, complaint came to be lodged.
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the accused. Accused has appeared through his counsel and was enlarged on bail. The plea under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) is framed against accused and same is read over and explained to him. Accused pleaded not guilty and claimed to be tried.
appreciating the oral and documentary evidence, the learned Magistrate has acquitted the accused for the offence
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punishable under Section 138 of the N.I. Act by exercising his powers under Section 255(1) of Cr.P.C. Being aggrieved by this judgment of acquittal, the complainant is before this court.
counsel for appellant as well as learned counsel for the respondent. Perused the records.
contend that the cheque and signature have been admitted and presumption is in favour of the complainant. He would also contend that the learned Magistrate has failed to appreciate the oral and documentary evidence in proper perspective and sought for admitting the appeal by convicting the accused/respondent herein.
would support the judgment of acquittal passed by the learned Magistrate.
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the owner of land and 12 acres was sold to accused and total extent of land was 17 acres and 13 guntas. There is no serious dispute of the fact that the complainant was owner of 17 acres and 13 guntas and he sold an extent of 9 acres in favour of accused and 3 acres in favour of other persons at the instance of accused and sale deed were executed. It is also an admitted fact that accused has already paid an amount of Rs.5,04,25,000/- including the consideration amount of Rs.81,00,000/-. Further, accused is required to pay Rs.15,50,000/- towards registration of 5 acres and 13 guntas of additional land.
complainant dodged the registration initially under the ground that same would be done after approval of layout and even after approval of layout, no sale deed has been executed in favour of the accused, but the complainant raised a demand of Rs.1,00,00,000/- in addition on the ground of escalation in prices. It is the specific contention of the accused that, towards the registration of 5 acres and
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13 guntas he has issued blank cheques in the
year 2009, but the same has been misused by creating a Memorandum of Understanding dated 22.09.2009.
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admittedly, regarding 5 acres and 17 guntas no sale deed was executed, but reliance was placed on Memorandum of Understanding. But a Memorandum of Understanding is required to be proved in a civil litigation and liability will be a civil liability. Further, when the sale deed itself is not executed, it cannot be termed as a legally enforceable debt and if there is any breach of conditions of agreement, it is open for the complainant to prosecute the accused before a Civil Court. Hence, it is evident that regarding sale there is no due to the complainant and regarding sale deed dated 27.12.2006, there is no legally enforceable debt. Apart from that, the remaining 5 acres and 13 guntas was not sold in favour of the accused and as such, the question to pay the said amount does not arise at all.
make out a case that sale deed pertaining to 5 acres and 17 guntas were executed in favour of different purchasers and the sale consideration was appropriated by the accused. But that was not the case made out by the complainant. Further, on perusal of memorandum of
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agreement-Ex.D1 it is evident that the complainant was required to execute a General Power of Attorney in favour of accused. But admittedly, till today, no power of attorney was executed in favour of accused to deal with the said property of 5 acres 17 guntas. Then the complainant is not certain as to on what basis he is enforcing the agreement and it appears that a civil litigation was tried to be given a criminal colour.
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the year 2006. In that event, the transaction is clearly barred by law of limitation also. Admittedly, sale deed is executed in the year 2006 and as per admission given by PW1, cheque was issued in 2006 itself. In that event, the question of issuing cheque in 2013 does not arise and PW1 further admitted that from 2006 to 2014, no notice was issued or no correspondence was made regarding due under the cheque that clearly discloses that even if it is held to be a legally enforceable debt, it is barred by the law of limitation.
out a different case and all along it is alleged in the complaint that the cheque was issued towards sale consideration of 2006, but PW1 himself has admitted that the entire consideration under the sale deed of 2006 is received. Now during the course of evidence, a different story tried to be invented regarding cheque being issued under Memorandum of Understanding but there is no such pleading in the complaint. The evidence lead by the complainant is inconsistent and contrary. The admissions
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given by PW1 completely destroys the case of the complainant.
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complaint is also not filed by the Company and complaint should be in the name of Company represented by Managing Director but here it is vice versa. Looking to these facts and circumstances, it is evident that the complainant has not made out any prima facie case for admitting the matter. The learned Magistrate has appreciated the oral and documentary evidence in detail in accordance with law and has rightly acquitted the accused. No illegality or perversity is found in the judgment of acquittal. Hence, the appeal being devoid of any merits, does not survive for consideration and accordingly, it stands
rejected .
Sd/JUDGE
DS
3 issues framed by the court
Whether the appellate court can set aside the acquittal of the respondent under Section 138 of the N.I. Act based on inconsistent evidence and lack of legally enforceable debt.
Whether the limitation period bars the complaint for dishonour of a cheque allegedly issued in 2006 but presented in 2013.
Whether the complaint filed by the Managing Director in his individual capacity on behalf of the company is maintainable.
3 provisions across 2 enactments
SRI. A. RAMESH ARUN
SMT. S. GIRIJA SHIVARAM
RAJENDRA BADAMIKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
