This Court dismissed an appeal against an acquittal in a cheque dishonour case. It held the accused was entitled to acquittal as the complainant failed to prove the lending of loan amount beyond reasonable doubt despite legal presumptions.
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NC: 2024:KHC:47054 CRL.A No. 353 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 353 OF 2013 (A)
BETWEEN:
SHIVAKUMAR, S/O KRISHNAPPA POOJARY, MAJOR, HARLEKOODIGE DAKHLE, HALLIMANE, SAKALESHPURA TALUK, HASSAN DISTRICT.
…APPELLANT
Digitally signed by SWAPNA V Location: high court of karnataka
(BY SRI. PRAKASHA H.C., ADVOCATE)
AND:
JNANESH, S/O SHIVARUDRAIAH, MAJOR, GANESH BHAVAN, NEAR M.K. SWAMY PETROL BUNK, THANNIRUHALLA, HASSAN - 573 201
…RESPONDENT
(BY SMT. MOHANAKUMARI B.V., FOR SRI. ABUBACKER SHAFI, ADVOCATES)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.01.2013 PASSED BY THE SR. C.J. AND J.M.F.C., SAKALESHPUR IN C.C.NO.184/2012 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.
THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The complainant in C.C.No.184/2012 (CC No.546/2004), on the file of the learned Senior Civil Judge and JMFC, Sakaleshpura, is impugning the judgment dated 05.01.2013, acquitting the accused for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'the NI Act').
referred to as per their rank and status before the Trial Court.
insufficient. The complainant issued the legal notice notifying the accused about dishonor of the cheque and calling upon him to repay the cheque amount. In spite of service of legal notice, the accused has neither repaid the cheque amount nor issued any reply. Thereby, he has committed the offence under Section 138 of NI Act. Accordingly, the complainant requested the Trial Court to take cognizance of the offence and to initiate legal action.
NC: 2024:KHC:47054 CRL.A No. 353 of 2013
punishable under Section 138 of NI Act. Being aggrieved by the same, the complainant is before this Court.
concocted document and same cannot be relied on. Therefore, the Trial Court committed an error in placing reliance on the said document and in acquitting the accused.
loan, DW-5 was required to return the cheques. But he contended that the cheques were misplaced and therefore, Ex.D1 - agreement came to be executed. DW-5 deliberately handed over the blank cheques with the signature of accused to the complainant, who in turn misused the same. The evidence of DWs-1 to 4 fully supports the defence taken by the accused. Under such circumstances, Trial Court was right in acquitting the accused.
"Whether the impugned judgment of acquittal passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?"
My answer to the above point is in the 'Negative' and pass the following:
NC: 2024:KHC:47054 CRL.A No. 353 of 2013
R E A S O N S
that the accused contended that he was not knowing the complainant. He never borrowed any amount from him nor he issued Ex.P1 in his favour. PW1 pleaded his ignorance regarding the agreement - Ex.D1, got executed by DW-5 referring to the cheque Ex.P1 and stating that the same is misplaced.
NC: 2024:KHC:47054 CRL.A No. 353 of 2013
availed loan of Rs.2,30,000/- from one Subramanya and as security he had issued 6 blank cheques. On 21.04.2004, the loan amount was repaid to Subramanya, but he had not returned the cheques on the ground that the same were misplaced. Accordingly, he executed a document on the very same day as per Ex.D1. Inspite of that, DW-5 in collusion with the complainant misused the cheque Ex.P1. Therefore, the complaint is filed against both of them. During cross examination, witness denied the suggestion that he had availed any loan from the complainant and he had issued Ex.P1 towards discharge of legally enforceable debt. He denied the suggestion that he concocted Ex.D1. Nothing has been elicited from the witness to disbelieve his version.
have been entered into between the accused and Subramanyan - DW-5, where there is reference to availing of the loan by the accused and issuance of 6 blank cheques with his signature as security. There is reference to the cheque - Ex.P1 in the said agreement. It is pertinent to note that the cheque - Ex.P1 is dated 12.05.2004 which is much after the date of Ex.D1. Prima facie , the defence taken by the accused is probabalized by producing Ex.D1 and examining DWs-2 to 4. Once the accused probablizes his defence, it amounts to rebuttal of the legal presumption under Sections 118 and 139 of NI Act. The burden again shifts on the complainant to prove his capacity to lend and also actual lending of the amount.
the accused had filed PCR No.07/2006 before the Trial Court against the complainant and DW-5 - Subramanyan. The same is now pending in C.C.No.2993/2014. It is stated that the accused alleged that the said Subramanya and the complainant have misused Ex.P1 and presented for encashment even though he had not availed any loan from the complainant. According to the learned counsel for the appellant the appeal is to be kept pending till disposal of C.C.No.2993/2014. But the result of case in C.C.No.2993/2014 will not have any bearing on the present case. Even if the complainant herein who is one of the accused is acquitted by the Trial Court that will not lead to a conclusion that the complainant has proved his contention regarding lending of the amount in favour of the accused. Under such circumstances, I do not find any merit in the submission made by the learned counsel for the appellant that the appeal is to be kept pending till disposal of C.C.No.2993/2014. On merits of the case, I am of the opinion that the accused is entitled for acquittal.
NC: 2024:KHC:47054 CRL.A No. 353 of 2013
consideration the oral and documentary evidence in the light of
the averments made in the complaint and arrived at a right 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:
ORDER
The appeal is dismissed.
Sd/(M G UMA) JUDGE
SPV
List No.: 2 Sl No.: 59
1 issue framed by the court
Whether the impugned judgment of acquittal passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?
3 provisions across 2 enactments
SHIVAKUMAR
JNANESH
M G UMA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
