Criminal Appeal filed by complainant challenging acquittal under Section 138 NI Act. Court held that undisputed part payments rendered the cheque amount not a legally enforceable debt on maturity. Appeal dismissed.
Appeal dismissed. Judgment of acquittal set aside is rejected.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL APPEAL NO. 48 OF 2018
BETWEEN:
SRI. S.N. SANTHOSH KUMAR S/O SRI. S.A. NARAHARI SETTY, AGED ABOUT 48 YEARS, RESIDING AT NO 99, 1ST FLOOR, 3RD CROSS, 3RD MAIN, SILVER OAK STREET, 7TH PHASE, J.P. NAGAR, BANGALORE - 78 (BY SRI. B.J. MAHESH, ADVOCATE)
…APPELLANT
AND:
Digitally signed by SOWMYA D Location: High Court of Karnataka
SRI. R. ANTHONY PRAKASH, S/O T. ROBERT, AGED ABOUT 54 YEARS, REISIDNG AT DOOR NO. 209, ‘C’ LAYOUT, HANUMANTHANAGARA BANNIMANTAPPA LAYOUT, MYSORE -570 015. ALSO AT: SRI. R. ANTHONY PRAKASH, S/O T. ROBERT, AGED ABOUT 54 YEARS, COMMERCIAL OFFICER, HINDUSTAN UNILEVER LIMITED, NO 424, HEBBAL INDUSTRIAL AREA, MYSORE – 570 016.
…RESPONDENT
(BY SRI. B.N. SURESH BABU, ADVOCATE)
THIS CRL.A. IS FILED ISU/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 06.10.2017 PASSED BY THE XXIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE IN C.C.NO.19601/2013ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the complainant 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 XXIII Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.19601/2013 dated 06.10.2017.
April, 2011 he approached the complainant and requested for financial assistance of Rs.2 Lakhs to meet his financial
needs. The complainant has paid the said amount and accused promised to repay the said amount within three months. He did not repay the said amount and later on, he issued a cheque dated 27.05.2013 for a sum of Rs.2 Lakhs, which when presented, returned for ‘insufficient of funds’. Hence, the complainant has filed a complaint.
and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. The plea was recorded and accused denied the same.
also got examined himself as DW1 and he placed reliance on Ex.D1 to Ex.D7.
appreciating the oral and documentary evidence the learned Magistrate by exercising the powers under Section 255(1) of Cr.P.C acquitted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act' for short). Being aggrieved by this judgment of acquittal, the complainant is before this court by way of this appeal.
Lakh was paid and on 02.04.2011, a sum of Rs.2 Lakhs was paid by way of cheque and subsequently, Rs.31,250/cash was also paid and total due is Rs.3,31,250/-, out of which Rs.75,000/- was paid subsequent to the complaint. Hence, he would contend that as on the date of presentation of the complaint, a sum of Rs.2 Lakhs was due and the learned Magistrate has failed to appreciate this aspect in its proper perspective. Hence, he would contend that the judgment of acquittal calls for interference and sought for interference by this court.
accused to the account of the complainant and those payments were not denied and hence, as on the date of the lodging of the complaint, the amount of Rs.2 Lakhs is not at all due and hence, there is no legally enforceable debt. In this context he placed reliance on a decision of the Hon’ble Apex Court in ‘ DASHRATHBHAI TRIKAMBHAI PATEL VS. HITESH MAHENDRABHAI
PATEL’, (2023) 1 SCC 578 . Hence, he seeks for dismissal of the appeal.
knew the accused for past several years and out of this friendship, in April 2011, he advanced a loan of Rs.2
Lakhs. The complainant, at the first instance, nowhere pleaded as to on which date exactly he advanced the loan. This material evidence is completely silent, but in the cross examination, the complainant claims that on 01.02.2011, he paid Rs.1 Lakh, on 02.04.2011, he paid Rs.2 Lakhs and on 23.04.2011, he paid Rs.31,250/- by way of cash and total payment to the accused is Rs.3,31,250/-, but in the complaint nowhere there is an assertion regarding these transactions. Even the complainant nowhere asserted that the amount of Rs.2 Lakhs was paid in April 2011 by way of cheque. However, complainant has placed reliance on Ex.P8 & Ex.P9, which are the account statement of the bank account pertaining to the complainant, wherein it discloses that Rs.1 Lakh was paid on 01.02.2011 and Rs.2 Lakh was paid on 02.04.2011. At the same time, Ex.D6 discloses that on 11.01.2011 a sum of Rs.47,500/- was credited to the account of the complainant. Further, Ex.D7 discloses that on 10.11.2011, again a sum of Rs.7,500/- was credited to his account. Further, Ex.D1 discloses that on 13.12.2011 another sum of Rs.7,500/-
was credited to the account of the complainant. These payments were not disputed by the complainant. Ex.D2 is corresponding to Ex.D6 and Ex.D1 and Ex.D7 also disclose payments. Though the complainant in his crossexamination tried to make out a case of balance of Rs.3,31,250/-, the assertions of the complaint itself discloses that the due was Rs.2 Lakhs as on April 2011 and hence, the contention of the complainant regarding earlier payment was also due cannot be accepted at this juncture. If Ex.D1, D2, D6 and D7 are taken into consideration then, it is evident that the complainant has
paid more than Rs.55,000/- prior to lodging of the complaint and issuance of legal notice. The legal notice came to be issued on 14.06.2013 wherein, there is reference of only Rs.2 Lakhs loan and non payment, but the payment under Ex.D1, Ex.D2 and Ex.D6 establish that there is material payments made to the tune of more than Rs.60,000/-. These are not explained by the complainant and when partial payment has been made prior to presentation of the cheque, legal notice ought to
have been issued towards partial due, but it was issued towards claim in respect of Rs.2 Lakhs i.e., the cheque amount.
“30. In the view of the discussion above, we summarise our findings below:
the above cited decision, it is evident that the complainant was required to get an endorsement of the accused on the part payment on the cheque, but he has not done so and
he never disputed that payment made under Ex.D1, Ex.D2 and Ex.D6. It is also evident that the accused even has made subsequent payments subsequent to lording of the complaint and that has also been admitted. Hence, the major portion is paid by the accused towards the due amount. Even prior to the presentation of the complaint, substantial amount was paid, but the prosecution was made to the whole amount and the whole amount is not a legally enforceable debt as observed in the above cited decision of DASHRATHBHAI TRIKAMBHAI PATEL
referred supra. As such, though a presumption is available in favour of the complainant under Section 139 of the N.I.Act initially, the accused by producing the documents at Ex.D1, Ex.D6 & Ex.D7 rebutted the said presumption to show that there is no legally enforceable debt to the extent of Rs.2 Lakhs as asserted by the complainant.
appreciated the oral and documentary evidence and has rightly acquitted the accused. No perversity or illegality is
NC: 2023:KHC:43254 CRL.A No. 48 of 2018
found in the judgment of acquittal and the complainant has failed to establish the legally enforceable debt referred in the cheque. Under such circumstances, the point under consideration is answered in the negative. In view of the facts and circumstances, the appeal being devoid of merits
does not survive for consideration and needs to be
dismissed. Accordingly, I proceed to pass the following:
O R D E R
Sd/JUDGE
SS
List No.: 1 Sl No.: 15
3 issues framed by the court
Whether the acquittal of the accused for the offence under Section 138 of the Negotiable Instruments Act is perverse, arbitrary, and erroneous requiring interference by this court?
Whether part payments made by the accused prior to the return of the cheque rebutted the presumption of legally enforceable debt under Section 139?
Whether the notice and complaint correctly reflected the legally enforceable debt considering undisputed part payments?
Colour shows how this judgement treated each authority
Dashrathbhai Trikombhai Patel vs. Hitesh Mahendrabhai PatelFollowed¶37
(2023) 1 SCC 578 · Who else cites this
Dashrathbhai Trikombhai Patel vs. Hitesh Mahendrabhai PatelReferred¶51
(2023) 1 SCC 578 · Who else cites this
Dashrathbhai Trikombhai Patel vs. Hitesh Mahendrabhai PatelApplied¶59
(2023) 1 SCC 578 · Who else cites this
5 provisions across 2 enactments
Sri. S.N. Santosh Kumar
Sri. R. Anthony Prakash
Rajendra Badamikar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
