High Court dismissed criminal appeal against acquittal in Section 138 NI Act case. Court held appellant failed to prove crucial facts regarding loan date and mode of advancement, rebutting cheque section presumption. Acquittal upheld as possible view.
Appeal filed under Section 378(4) Cr.P.C seeking conviction dismissed; acquittal 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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 93 OF 2018
BETWEEN:
SRI. MARUTI RAO PAWAR, S/O M. NAGOJIRAO, AGED: 46 YEARS, R/O D.NO.1126/2, KUMBARAPETE, DAVANAGERE-577001.
…APPELLANT
(BY SRI. YADUNANDAN N., ADVOCATE FOR SRI. SANTOSH R NELKUDURI, ADVOCATE)
AND:
Digitally signed by SOWMYA D Location: High Court of Karnataka
SMT. PARWIN, W/O JABIULLA, AGED: 36 YEARS, R/O KUNCHUR CAMP, DODDABATI POST, DAVANAGERE TALUK AND DISTRICT-577101.
…RESPONDENT
(VIDE ORDER DATED 11.09.2019, SERVICE OF NOTICE IS HELD SUFFICIENT)
THIS CRL.A. IS FILED U/S 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 04.12.2017 PASSED BY THE III J.M.F.C., DAVANAGERE IN C.C.NO.974/2016 -ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 ON N.I ACT.
NC: 2023:KHC:43127 CRL.A No. 93 of 2018
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 Cr.P.C challenging the judgment of acquittal passed by the Judicial Magistrate First Class, III Court, Davanagere in C.C. No.974/2016, dated 04.12.2017.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them, before the Trial Court.
Rs.1,00,000/- each towards repayment of the loan amount availed in second week of January 2016. When the said cheques were presented for encashment, they were returned with an endorsement as 'funds insufficient'. A legal notice came to be issued, but accused did not respond to the said legal notice and hence, a complaint was lodged under Section 200 of Cr.P.C alleging that the accused has committed an offence punishable under Section 138 of N.I act.
sworn statement and materials on record, has taken cognizance and issued process against the accused. The accused has appeared through his counsel and he was enlarged on bail. The plea under Section 138 of N.I Act was recorded and accused denied the same.
and got marked 7 documents as Exs.P1 to P7. Then the statement of accused under Section 313 of Cr.P.C was
recorded and the case of accused is of total denial. Accused got examined himself as DW1 and got marked document Ex.D1.
the oral and documentary evidence on record, the learned Magistrate, by exercising his powers under Section 255(1) of Cr.P.C, acquitted the accused for the offence punishable under Section 138 of N.I. Act.
discharge of the said amount, the cheque under Ex.P1 came to be issued. He would contend that the cheque and signature on the cheque are admitted and hence, the initial presumption under Section 139 of N.I Act is in favour of the complainant and accused has failed to rebut the same. Hence, he would contend that the learned Magistrate has erroneously acquitted the accused and sought for conviction by allowing the appeal.
"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"?
that he has advanced the loan of Rs.2,00,000/- to the accused in the second week of January 2016, by way of cash. The specific assertion is found in the complaint as well as legal notice and the examination-in-chief.
However, in the cross-examination, he admits that he has advanced the loan to the accused on 22 or 23 of February 2016. All along, it is the specific contention of the complainant that the loan was advanced by way of cash in the second week of January 2016, but the complainant nowhere specified the specific date of advancement of the loan. It is hard to accept his contention that he is not in a position to remember the date of advancement of the loan, though he has advanced huge loan of Rs.2,00,000/but quite contrarily, he claimed in his cross-examination that the loan was advanced on 22 or 23 of February 2016.
The said assertion is completely contrary to the pleadings made in the complaint legal notice and evidence given in examination-in-chief.
NC: 2023:KHC:43127 CRL.A No. 93 of 2018
accepted then, he should have material documents to show that he has advanced the loan by way of cheque. The complainant is not certain whether he has advanced the loan by way of cheque or by way of cash. Even he does not know on which date he advanced the loan.
the disputed cheques are of the same date. There is no explanation on the part of the complainant as to why two cheques were issued and he could have obtained a single cheque for Rs.2,00,000/- instead of obtaining two cheques for Rs.1,00,000/- each. Further he asserts that he is an income tax assessee and all the transactions are shown in his income tax returns, but he has not produced any documents to substantiate his contention and he further admits that he has not shown this transaction in his income tax return.
complainant has nowhere produced any documents to show that the accused is residing in the address shown in the legal notice. Ex.D1 is confronted and the address given in Ex.D1 is completely different from the legal notice. Hence, non-reply to the legal notice does not have any relevancy. Further, the accused has also disputed the financial capacity of the complainant and in view of that, the burden is on the complainant to prove his financial status, but though he claims that he is an income tax assessee, he has not produced any documents to show that he was financially sound to advance the amount of Rs.2,00,000/- by way of cash.
Section 139 available to the complainant stands rebutted. When the view taken by the learned Magistrate is also a possible view, the said view cannot be disturbed by the Appellate Court.
ORDER
Appeal stands dismissed.
Sd/JUDGE
RAK,List No.:1 Sl No.:17
3 issues framed by the court
Whether the judgment of acquittal by the learned Magistrate is perverse, arbitrary or erroneous calling for interference by the High Court?
Whether the presumption under Section 139 of the NI Act stands rebutted due to inconsistent evidence regarding date and mode of loan advancement?
Whether failure to reply to legal notice was material without proof of accused's residence at the notice address?
6 provisions across 2 enactments
SRI. MARUTI RAO PAWAR
SMT. PARWIN
RAJENDRA BADAMIKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
