Allowed

Kritapur Chits(P) Ltd.,Gadag v. Swetha W/O Manjunath Solanki

Karnataka HC22 Feb 2024CRL.A/100097/2020

Case brief

AI extract

What is this about?

High Court allowed criminal appeal against acquittal in a cheque dishonour case. It held that the statutory presumption under Section 139 NI Act failed due to the 'signature differs' remark. Without this presumption, the complainant failed to prove legally recoverable debt. The High Court set aside the acquittal and remitted the case for fresh disposal with liberty to lead additional evidence.

What did the court decide?

Impugned judgment of acquittal set aside; matter remitted to Trial Court for fresh disposal with liberty to parties to lead additional evidence.

Kritapur Chits(P) Ltd.,Gadag Vs Swetha W/O Manjunath… — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:4387 CRL.A No. 100097 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

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CRIMINAL APPEAL NO. 100097 OF 2020 (A)

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BETWEEN:

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KRITAPUR CHITS(P) LTD.,GADAG, REGISTERED/ADMINISTERED OFFICE, ALUR GURAPPA GINNING COMPANY COMPLEX, 1ST FLOOR, NEAR BUS STAND, GADAG, REPRESENTED BY ITS AUTHROIZED LEGAL INCHARGE MANJUNATH.N.NILUGAL, AGE:42 YEARS, OCC:PRIVATE EMPLOYEE, R/O GADAG, DIST:GADAG-582101.

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…APPELLANT

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(BY SRI G.N.NARASAMMANAVAR, ADVOCATE)

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AND:

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ANNAPURNA CHINNAPPA DANDAGAL

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Digitally signed by ANNAPURNA CHINNAPPA DANDAGAL Date: 2024.02.23 10:17:59 +0530

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SWETHA W/O MANJUNATH SOLANKI, AGE: 31 YEARS, OCC: BUSINESS, R/O: VIJAYANAGAR, GANGIMADI ROAD, KRUPA CLINIC BUILDING, GADAG-582101.

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…RESPONDENT

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(BY SMT. ARCHANA MAGADUM, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S 378 (4) OF CR.P.C., PRAYING TO CALL FOR RECORDS AND SET ASIDE JUDGMENT AND ORDER OF ACQUITTAL DATED 14/01/2020 PASSED BY THE PRL. CIVIL JUDGE AND JMFC, GADAG IN C.C.NO.2371/2017 AND CONVICT THE RESPONDENT FOR THE OFFENCE PUNISHABLE U/S

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NC: 2024:KHC-D:4387 CRL.A No. 100097 of 2020

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138 OF THE N.I. AND IT IS PRAYED THAT, THIS HONOURABLE COURT BE PASSED TO DIRECT THE RESPONDENT THE PAYMENT OF CHEQUE AMOUNT AND FINE AMOUNT TO THE APPELLANT IN THE EVENT OF CONVICTION AND SENTENCE TO THE RESPONDENT.

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

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JUDGMENT

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This appeal under Section 378(4) of Cr.PC is filed by the complainant with a prayer to set aside the judgment and order of acquittal dated 14.01.2020 passed by the Court of Prl. Civil Judge & JMFC, Gadag, in C.C.No.2371/2007, wherein the respondent has been acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act’).

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Heard the learned Counsel for the parties.

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The complainant/appellant herein had initiated

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proceedings against the respondent herein before the Trial Court in C.C.No.2371/2017 with a prayer to convict the respondent for the offence punishable under Section 138 of the Act. It is the case of the complainant that the respondent is a subscriber to the chit conducted by the complainant and

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3 - NC: 2024:KHC-D:4387 CRL.A No. 100097 of 2020

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towards discharge of legally recoverable debt, the respondent had issued the cheque in question for a sum of Rs.55,452/- in favour of the complainant, and on presentation of the said cheque for realization, the same was dishonoured by the drawee bank with an endorsement ‘drawer’s signature differs’. The complainant, thereafter, issued a legal notice to the respondent and since the respondent failed to repay the amount covered under the cheque inspite of receiving the legal notice, the complainant had filed the complaint before the Trial Court against the respondent for the offence punishable under Section 138 of the Act.

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In the said proceedings, the respondent had appeared before the Trial Court and claimed to be tried. The complainant in order to substantiate its case, had examined its legal incharge – Manjunath N.Nilugal as PW-1 and had got marked five documents as Exs.P-1 to P-5. On behalf of the defence, no evidence was led. The Trial Court, after hearing the arguments addressed on both sides, has acquitted the respondent vide the impugned judgment and order and being aggrieved by the same, the complainant is before this Court.

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4 - NC: 2024:KHC-D:4387 CRL.A No. 100097 of 2020

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Learned Counsel for the appellant having reiterated the grounds urged in the memorandum of appeal, submits that the Trial Court was not justified in acquitting the respondent. He submits that the transaction between the appellant and respondent is not in dispute. The respondent has not raised any defence. She has neither cross-examined the complainant’s witness nor has she entered into the witness box. Therefore, the Trial Court was not justified in acquitting the respondent.

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Per contra, learned Counsel appearing for the respondent submits that the cheque in question was dishonoured by the drawee bank with a shara ‘drawer’s signature differs’. Therefore, the presumption under Section 139 of the Act is not available against the respondent. The appellant has not discharged its burden to prove that the cheque in question was issued by the respondent towards discharge of legally recoverable debt. Accordingly, she prays to dismiss the appeal.

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The complainant had approached the Trial Court contending that the respondent was a subscriber to the chit conducted by the complainant-company and she had received the prize amount of Rs.70,000/- from the complainant.

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5 - NC: 2024:KHC-D:4387 CRL.A No. 100097 of 2020

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However, since she had not paid the monthly subscription amount, there was an overdue in her account and towards payment of same, she had issued the cheque in question for Rs.55,452/-. The said cheuqe on presentation for realization was dishonoured by the drawee bank with a shara ‘drawer’s signature differs’.

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The presumption under Section 139 of the Act arises against the accused only in a case where the accused has not denied the signature found in the cheque and also has not denied that the cheque in question was drawn on the account maintained by the accused in the drawee bank.

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In the case on hand, the cheque in question was dishonoured by the drawee bank with a shara ‘drawer’s signature differs’. Therefore, the presumption under Section 139 of the Act, prima facie, does not arise against the accused. In the absence of a presumption under Section 139 of the Act, the burden is on the complainant to prove that the cheque in question was issued towards legally recoverable debt or other liability. The Trial Court has failed to appreciate this aspect of the matter. The Trial Court has erroneously held that there is a

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6 - NC: 2024:KHC-D:4387 CRL.A No. 100097 of 2020

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presumption available in favour of the complainant and further has held that the complainant also had to discharge the initial burden of proving that the cheque in question was issued towards legally recoverable debt or other liability. This approach of the Trial Court is incorrect.

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The respondent has not raised any defence before the Trial Court. She has not replied to the legal notice nor she has cross-examined PW-1 putting forward her defence. She has also has not entered into the witness box. Learned Counsel for the respondent submits that she has a valid defence. Under the circumstances, I am of the opinion that the impugned judgment and order of acquittal passed by the Trial Court is required to be set aside and the parties are required to be given an opportunity to lead additional evidence, if any, before the Trial Court. Accordingly, the following order:

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The appeal is allowed. The judgment and order of acquittal dated 14.01.2020 passed by the Court of Prl. Civil Judge & JMFC, Gadag, in C.C.No.2371/2007, is set aside. The matter is remitted to the Trial Court for disposing of the complaint afresh in accordance with law. The parties are at

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liberty to lead additional evidence, if any, before the Trial Court. Since they are represented before this Court, they are directed to appear before the Trial Court on 22.03.2024.

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Since the complaint is of the year 2007, the Trial Court shall make endeavour to dispose of the case as expeditiously as possible, but not later than the period of six months from the date of receipt of the certified copy of this order.

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Sd/JUDGE

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KK CT:GSM List No.: 1 Sl No.: 48

Kritapur Chits(P) Ltd.,Gadag v. Swetha W/O Manjunath Solanki

Case brief

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Kritapur Chits(P) Ltd.,Gadag v. Swetha W/O Manjunath Solanki

Case brief

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What did the court decide?

What the court decided

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