Dismissed

Sri. Sampangi Reddy v. Sri.Nagaraju Hanumantharao Nittur

Karnataka HC4 Sept 2024CRL.A/1141/2015

Case brief

AI extract

What is this about?

In this appeal under Section 378 CrPC, the High Court of Karnataka dismissed the complainant's appeal against the Trial Court's acquittal. The Court found the complainant failed to prove the existence of a legally recoverable debt as he offered no evidence of his financial capacity to lend the claimed sum, thereby failing to meet the burden of proof beyond reasonable doubt despite the presumption

What did the court decide?

The criminal appeal filed by the complainant against the acquittal of the accused is dismissed.

Sri. Sampangi Reddy Vs Sri.Nagaraju Hanumantharao Nittur — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:36301 CRL.A No. 1141 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 1141 OF 2015 (A)

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BETWEEN:

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SRI. SAMPANGI REDDY S/O. LATE C. RAMAIAH AGED ABOUT 56 YEARS NO.153, 3^RD 'B' MAIN 13^TH 'B' CROSS, B SECTOR YELHANKA NEW TOWN BANGALORE - 56.

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…APPELLANT (BY SRI. MANJUNATH H.N., ADVOCATE (ABSENT))

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Digitally signed by NANDINI B G Location: high court of karnataka

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AND:

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SRI. NAGARAJU HANUMANTHARAO NITTUR S/O. HANUMANTHRAYA ANUTHANU PARADISE, NO.55 1^ST FLOOR, 1^ST MAIN, 4^TH CROSS AMCO LAYOUT, KODIGENAHALLI BANGALORE - 92.

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…RESPONDENT

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(BY SRI. B.R. SRINIVASA GOWDA, ADVOCATE (ABSENT))

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2014 PASSED BY THE XVIII A.C.M.M., BANGALORE IN C.C.NO.32361/2011 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.

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THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA

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2 - NC: 2024:KHC:36301 CRL.A No. 1141 of 2015

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ORAL JUDGMENT

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The appellant being the complainant in CC No.32361 of 2011 on the file of the learned XVIII Additional Chief Metropolitan Magistrate, Bengaluru, is impugning the judgment dated 05.07.2014 acquitting the respondent - accused for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'the NI Act').

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For the sake of convenience, the parties shall be

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referred to as per their rank and status before the Trial Court.

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Brief facts of the case are that, the complainant filed the private complaint in PCR No.18034 of 2011 against the accused alleging commission of offence punishable under Section 138 of NI Act. It is contended by the complainant that he has taken voluntary retirement from NGEF, Bengaluru. Accused was known to him since about 3 years. He borrowed an amount of Rs.8,40,000/- from the complainant on 15.03.2010 towards education expenses of his children. He issued post dated cheque bearing No.101433 dated 23.06.2011 for Rs.8,40,000/- and promised to arrange for honoring the same. When the cheque was presented for encashment, the

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3 - NC: 2024:KHC:36301 CRL.A No. 1141 of 2015

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same was dishonored as payment stopped by the drawee. Legal notice was issued informing the accused regarding dishonor of cheque and calling upon him to repay the cheque amount. In spite of service of notice, accused has neither repaid the cheque amount nor replied. Thereby, he has committed the offence punishable under Section 138 of NI Act. Accordingly, he prayed the Trial Court to take cognizance of the offence and to initiate legal action against the accused.

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The Trial Court took cognizance of the offence and summoned the accused. The accused appeared before the Trial Court and pleaded not guilty. The complainant examined himself as PW1 and got marked Exs.P1 to P7 in support of his contention. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. and examined himself as DW1 and got marked Exs.D1 and D2 in support of his defence. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the complainant is not successful in proving the guilt of the accused beyond reasonable doubt. Accordingly, passed the impugned judgment of acquittal. Being aggrieved by the same, the complainant is before this Court.

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4 - NC: 2024:KHC:36301 CRL.A No. 1141 of 2015

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Learned counsel for the appellant is absent. No representation. There was no representation even on the last date of hearing. The order sheet dated 13.08.2024 reads as under:

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"Learned counsel for the appellant is absent. No representation.

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The appeal is of the year 2015. The order sheets dated 21.12.2023, 05.02.2024 and 25.07.2024 discloses that learned counsel for the appellant was absent and there was no representation.

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The appellant is challenging the judgment of acquittal of the respondent for the offences punishable under Section 138 of NI Act. It appears that the appellant is not interested in prosecuting the appeal. However, to afford final opportunity, list this matter on 04.09.2024.”

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In view of the above, his arguments is taken as NIL. Perused the materials on record.

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On going through the materials on record, the point that would arise for my consideration is:

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"Whether the appellant has made out any grounds to allow the appeal and to convict the

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NC: 2024:KHC:36301 CRL.A No. 1141 of 2015

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respondent - accused for the offence punishable under Section 138 of NI Act?"

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My answer to the above point is in the 'Negative' for the following:

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REASONS

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On perusal of the materials on record, it is found that the accused has taken a defence of total denial. It is contended that the blank signed cheque - Ex.P1 had lost and in that regard, he had filed a complaint before the police as per Ex.D1. It is his defence that the complainant must have came in possession of the blank signed cheque and had misused the same. Ex.D1 is dated 15.11.2010 and that is why endorsement from the bank Ex.P2 discloses that the cheque was dishonored as stop payment instruction was received by the payee bank.

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Even though DW1 was subjected to cross examination, nothing has been elicited from him to disbelieve his version. When the accused admits his signature found on Ex.P1, by contending that the blank cheque with signature was lost, the presumption under Section 139 of NI Act would arise and the burden shifts on the accused to probabalise the

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6 - NC: 2024:KHC:36301 CRL.A No. 1141 of 2015

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defence. For the purpose of rebutting the presumption, the accused cross examined PW1 and also stepped into the witness box as DW1. He has also examined DW2 and thereby probablised his defence. It is therefore, the reverse burden shifts on the complainant to prove the guilt of the accused beyond reasonable doubt without the support of legal presumption.

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It is the specific contention of the complainant that the accused had borrowed huge sum of Rs.8,40,000/- in cash on 15.03.2010. Even according to the complainant, he is the retired employee of NGEF, Bengaluru. No scrap of paper is produced to show his financial capacity to lend such huge amount during 2010. Under such circumstances, it is to be concluded that the complainant is not successful in proving the existence of legally recoverable debt. Therefore, the accused is entitled for acquittal.

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I have gone through the impugned judgment of acquittal passed by the Trial Court. It has taken into consideration the oral and documentary evidence in the light of the averments made in the complaint and arrived at a right

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NC: 2024:KHC:36301 CRL.A No. 1141 of 2015

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conclusion. I do not find any reason to interfere with the same. Accordingly, I answer the above point in the negative and proceed to pass the following:

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ORDER

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The appeal is dismissed.

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Sd/(M G UMA) JUDGE

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*bgn/CT:VS List No.: 2 Sl No.: 28

Sri. Sampangi Reddy v. Sri.Nagaraju Hanumantharao Nittur

Case brief

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Sri. Sampangi Reddy v. Sri.Nagaraju Hanumantharao Nittur

Case brief

What is this about?

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What the court decided

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