Shri. Ramesh S/O Mallikarjun Yallanaikar Vs Shri. Mallikarjun S/O Yallappa Amati

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CRIMINAL PROCEDURE CODE, SEEKING TO SET ASIDE THE ORDER / JUDGMENT DATED 14.03.2016 PASSED BY THE COURT OF ADDITIONAL CIVIL JUDGE AND JMFC, BAILHONGAL, IN C.C.NO. 1581 OF 2012 BY ACQUITTING THE ACCUSED / RESPONDENT IN THE INTEREST OF JUSTICE AND EQUITY.

¶17

THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶18

CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

¶19

2 -

¶20

NC: 2025:KHC-D:4360 CRL.A No. 100293 of 2017

¶21

ORAL JUDGMENT

¶22

This appeal is filed by the complainant challenging the judgement of acquittal dated 14.03.2016 passed in CC No.1581/2012 by the Additional Civil Judge and JMFC, Bailhongal, whereunder the respondent/ accused is acquitted for the offence punishable under Section 138 of N.I. Act.

¶23

The case of the appellant/ complainant in brief is as under:

¶24

The complainant and the accused are the residents

¶25

of the same village and they are friends since their childhood and they are the contractors. The respondent/ accused used to take financial help from the complainant in a sum of ₹2 lakhs to ₹3 lakhs and used to repay the same. It is the further case of the complainant that during

¶26

the first week of November -2011, the respondent/ accused borrowed a sum of ₹5 lakhs from the complainant

¶27

and agreed to repay the same within a period of six [6] months. The complainant asked the accused to repay the

¶28

3 - NC: 2025:KHC-D:4360 CRL.A No. 100293 of 2017

¶29

amount borrowed, at that time, the accused issued a cheque dated 15.04.2012 bearing No.015451 for ₹5 lakhs and asked him to present the said cheque after one and half months. The appellant/ complainant presented the said cheque for encashment on 07.06.2012, and it came to be dishonoured on 08.06.2012 with an endorsement as payment is stopped by the drawer. The complainant got issued a legal notice dated 30.06.2012 demanding the payment of the cheque amount. The said notice has been served on the respondent/ accused on 04.07.2012. The respondent/ accused gave reply through his advocate on 06.07.2012 denying the contents of the notice, stating that he is not having any account in the Canara Bank. So, the complainant issued another notice dated 19.07.2012 and intimated that there is a typing mistake in mentioning the name of the bank. As the respondent/ accused did not repay the amount, the complainant has filed a private complaint against the respondent/ accused for the offence punishable under Section 138 of N.I. Act. The learned Magistrate has taken cognizance and registered CC

¶30

4 -

¶31

NC: 2025:KHC-D:4360 CRL.A No. 100293 of 2017

¶32

No.1581/2012 for the offence punishable under Section 138 of N.I Act. The plea of the respondent/ accused has been recorded. The complainant in order to prove his case, examined himself as PW.1 and got marked Ex.P.1 to P.13. The statement of the accused has been recorded under Section 313 of Cr.P.C. The respondent/ accused in defence has examined himself as DW.1 and got marked Ex.D.1 to D.8. After hearing the arguments on both sides, the learned Magistrate has framed the points for consideration and passed the impugned judgement of acquittal. The said judgement of acquittal has been challenged by the complainant in this appeal.

¶33

Heard the learned counsel for the appellant/ complainant and the learned counsel for the respondent/ accused.

¶34

The learned counsel for the appellant contended that the respondent/ accused in order to

¶35

establish that he has lost the cheque leaves, has not lodged any Police complaint. On that point, he placed

¶36

5 - NC: 2025:KHC-D:4360 CRL.A No. 100293 of 2017

¶37

reliance on the decision of co-ordinate Bench of this Court, in the case of Dhananjhay Vs. Revanasiddayya passed in Crl.RP No.100208/2016 decided on 30.08.2017 and M.Suresh Babu Vs. Geetha Suresh¹ . He further submits that the respondent/ accused has not taken any action against the complainant for misusing the cheque. Without considering all these aspects, the learned Magistrate has committed an error in passing the impugned judgement of acquittal. With this he prays for allowing the appeal and convicting the respondent/ accused for the offence punishable under Section 138 of N.I. Act.

¶38

Learned counsel for the respondent/ accused contended that in reply notice Ex.P.4=Ex.D.4 dated 06.07.2012, the respondent/ accused has denied the transaction and also his signature on the cheque. The complainant has not placed any evidence on record to establish that the signature on Ex.P.1-cheque is that of respondent/ accused. The respondent/ accused by his

¶39

1 LAWS (KAR) 2014 (4) 224

¶40

6 - NC: 2025:KHC-D:4360 CRL.A No. 100293 of 2017

¶41

letter dated 09.02.2012 (Ex.D.1) has intimated his Banker

¶42

regarding he lost four [4] cheque leaves by giving their numbers and asked to stop payment of those four [4] cheques. He submits that the said intimation by the respondent/ accused to his Banker, is two months prior to the date of the cheque. The account statement (Ex.D.2) contains the said intimation of stop payment in the entry dated 09.02.2012. The respondent/ accused has denied the transaction and his signature on the cheque and therefore, no presumption under Section 139 of N.I. Act arises. The complainant has not established the alleged issuance of cheque. Considering the said aspect, the learned Magistrate has rightly passed the impugned judgement of acquittal. With this he prayed for dismissal of the appeal.

¶43

Having heard the learned counsels, this Court has perused the impugned judgment of acquittal and trial Court records. Considering the grounds urged, the following point arises for my consideration is,

¶44

7 - NC: 2025:KHC-D:4360 CRL.A No. 100293 of 2017

¶45

“Whether the trial Court has erred in acquitting the respondent –accused for offence punishable under Section 138 of the N.I Act?”

¶46

My answer to the above point is in Negative

¶47

for the following reasons;

¶48

It is specific case of the appellant –complainant that he lent Rs.5,00,000/-(Rupees Five Lakhs only) to the respondent –accused during first week of November, 2011. It is his further case that when he demanded repayment of amount borrowed, the respondent –accused has issued cheque on 15.04.2012 and asked him to present after one and half month. The said cheque has been presented for encashment on 07.06.2012 and it has been dishonoured under memo Ex.P2 with reason “Payment stopped by the Drawer”. The appellant – complainant has got issued legal notice Ex.P3 to the respondent –accused and it has been served on the respondent –accused. The respondent –accused has got

¶49

8 - NC: 2025:KHC-D:4360 CRL.A No. 100293 of 2017

¶50

issued reply to the said legal notice as per EX.P4 = Ex.D4 dated 06.07.2012. In the said reply notice, the respondent –accused has denied the transaction of borrowing and issuance of cheque and he has also denied signature on the cheque. As signature on the cheque is denied, the presumption under Section 139 of the N.I Act cannot be drawn. Therefore, the appellant –complainant has to establish the borrowing of Rs.5,00,000/- (Rupees Five Lakhs only) by the respondent –accused and issuance of cheque by him.

¶51

Ex.D1 –letter dated 09.02.2012 given by the respondent –accused to his Banker intimating loss of four cheque leaves and out of four cheque leaves serial number of Ex.P1 is also stated in it. The said intimation given to the Banker by the respondent –accused is on 09.02.2012 and the cheque is dated 15.04.2012. It is not case of the appellant –complainant that the respondent –accused gave post dated cheque and thereafter, gave intimation to his Banker regarding loss of cheques. It is contention of the

¶52

9 - NC: 2025:KHC-D:4360 CRL.A No. 100293 of 2017

¶53

appellant –complainant that Ex.D1 –letter is created one. Ex.D2 is statement of bank account of the respondent – accused wherein entry dated 09.02.2012, there is mention regarding to stop cheque charges for cheque Nos. 015451 to 015454. The said entry itself indicates that Ex.D1 – letter has been given by the respondent –accused to his Banker on 09.02.2012. The appellant –complainant in order to establish that he lent Rs.5,00,000/-(Rupees Five Lakhs only) has not placed any materials on record. Signature on the cheque –Ex.P1 is that of respondent – accused has not been established. Merely because, the respondent –accused has not filed any complaint to the Police regarding loss of cheques, it cannot be presumed that he borrowed Rs.5,00,000/-(Rupees Five Lakhs only) from the appellant –complainant and issued cheque – Ex.P1. Judgments relied upon by learned counsel for the appellant –complainant does not apply to the facts of the present case.

¶54

10 - NC: 2025:KHC-D:4360 CRL.A No. 100293 of 2017

¶55

Considering all these aspects, the learned

¶56

Magistrate has rightly passed the impugned judgment of acquittal of the respondent –accused for offence punishable under Section 138 of the N.I Act. There are no grounds made out to set aside the impugned judgment of acquittal.

¶57

In the result, the appeal is dismissed.

¶58

SD/(SHIVASHANKAR AMARANNAVAR) JUDGE

¶59

PJ, DSP CT-ASC

Shri. Ramesh S/O Mallikarjun Yallanaikar v. Shri. Mallikarjun S/O Yallappa Amati

Case brief

What is this about?

What did the court decide?

Shri. Ramesh S/O Mallikarjun Yallanaikar v. Shri. Mallikarjun S/O Yallappa Amati

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

S Nagaraj S/O Late Rangaswamy Vs Smt Shan Khatoon W/O Mohammed Riyaz

Ameer S/O Abdul Gorekhan Vs the State of Karnataka

Sri. Shankar P.Pawar Vs the State of Karnataka

Irayya S/O Madiwalayya Hiremath Vs Shiddalingayyaswamy B Hiremath

Nagaraj S/O Choori Hanmantappa Vs the State of Karnataka

Smt Usha Rani W/O S.V. Balakrishna Vs State of Karnataka