The Managing Director Jamakhandi Sugar Ltd., Vs Sri Sahebgouda S/O Srishail Biradar

THE MANAGING DIRECTOR, JAMAKHANDI SUGAR LTD., SRI S. DAYANAND, AGE: MAJOR, OCC: MANAGING DIRECTOR, R/O. JAMAKHANDI, DIST. BAGALKOT, ITS BRANCH NO.2, NAD K.D., TQ. INDI, DIST. VIJAYAPURA, AND REP. BY ITS PA HOLDER AND ITS, SUPERINTENDENT OF NAD KD, BRANCH NO. 2 OF INDI TALUKA VIZ, SRI SAHEBGOUD VITHAL PARAGOND, R/O. NAD KD, TQ. INDI, DIST. VIJAYAPUR.

¶14

…APPELLANT

¶15

(BY SRI S. S. MAMADAPUR, ADVOCATE)

¶16

AND:

¶17

SRI SAHEBGOUDA S/O SHRISHAIL BIRADAR, AGE: MAJOR, OCC: AGRICULTURE, R/O. TADDEWADI-586 204, TQ. INDI, DIST. VIJAYAPUR.

¶18

…RESPONDENT

¶19

(BY SRI B. K. HIREMATH, ADVOCATE)

¶20

2 -

¶21

NC: 2025:KHC-K:5525 CRL.A No. 200139 of 2024

¶22

HC-KAR

¶23

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) THE CR.P.C (OLD) U/S 419(4) OF BNSS, PRAYING TO SET ASIDE THE JUDGMENT DATED 06-03-2024 PASSED BY THE HON’BLE CIVIL JUDGE AND JMFC, INDI IN CC NO.940/2014 AND CONSEQUENTLY CONVICT THE RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT.

¶24

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶25

CORAM: HON'BLE MRS JUSTICE M G UMA

¶26

ORAL JUDGMENT

¶27

(PER: HON'BLE MRS JUSTICE M G UMA)

¶28

The complainant in C.C.No.940/2014, on the file of the learned Civil Judge and JMFC, Indi, (for short ‘the Trial Court’), is impugning the judgment of acquittal dated 06.03.2024, acquitting the respondent/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I.Act’).

¶29

Parties are referred to as per their rank before

¶30

the Trial Court for the sake of convenience.

¶31

The contention of the complaint in brief are that, it is a Sugar Factory, represented by its Managing

¶32

3 - NC: 2025:KHC-K:5525 CRL.A No. 200139 of 2024

¶33

HC-KAR

¶34

Director. The accused is a labour contractor. He received Rs.6,13,100/- by way of demand draft for the purpose of harvesting the sugarcane and supplying the same to the factory. The accused has not carried out the work as agreed. Towards repayment of the said amount, he has issued the cheque as per Ex.P1 on 26.07.2014. When the cheque was presented for encashment, the same was dishonored, as there was ‘insufficient funds’ in the account of the accused. The complainant got issued legal notice as per Ex.P3. In spite of service of notice, accused has not replied to the legal notice nor he has repaid the cheque amount. Thereby he has committed the offence punishable under Section 138 of N.I.Act. Thus, the complainant filed the private complaint before the Trial Court in PCR No.41/2014.

¶35

The learned Magistrate took cognizance of the offence, registered C.C.No.940/2014 and summoned the accused. The accused had appeared before the Trial Court and pleaded not guilty. The office superintendent of

¶36

4 - NC: 2025:KHC-K:5525 CRL.A No. 200139 of 2024

¶37

HC-KAR

¶38

complainant – Company examined as PW.1 and got marked Exs.P1 to P6 in support of its contention. The accused has denied all the incriminating materials available on record in his statement under Section 313 of Cr.P.C., but has not led any evidence in support of his defence. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the accused has rebutted the legal presumption and therefore, he is entitled for acquittal. Being aggrieved by the same, complainant is before this Court.

¶39

Heard Sri S.S.Mamadapur, learned counsel for

¶40

the appellant and Sri B.K.Hiremath, learned counsel for the respondent. Perused the materials on record including the Trial Court records.

¶41

In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

¶42

5 - NC: 2025:KHC-K:5525 CRL.A No. 200139 of 2024

¶43

HC-KAR

¶44

"Whether the judgment of acquittal passed by the Trial Court suffers from infirmities and calls for interference by this Court?"

¶45

My answer to the above point is in the ‘ Affirmative ’, for the following:

¶46

REASONS

¶47

As stated above, it is the contention of the complainant that, the accused being the labour contractor had received Rs.6,13,000/- to deliver the sugarcane to the sugar factory. He had not carried out his work fully and the said amount was due from him. Towards repayment of the same, he issued the cheque - Ex.P6 on 26.07.2014. The same was dishonored. The legal notice was served on the accused. In spite of the same, he has not repaid the cheque amount and thereby, he has committed the offence punishable under Section 138 of N.I.Act.

¶48

PW.1 being the power of attorney holder, deposed on behalf of the complainant. He was cross-

¶49

6 - NC: 2025:KHC-K:5525 CRL.A No. 200139 of 2024

¶50

HC-KAR

¶51

examined at length. His cross-examination discloses that, the accused has admitted issuance of the cheque as per Ex.P6 with his signature. As per the tenor of crossexamination, it is contended that, the same was given as security while entering into an agreement. Thereby, the accused admits issuance of the cheque with his signature and also entering into contract with the complainant. Once the accused admits issuance of the cheque with his signature, the presumption under Sections 118 and 139 of N.I.Act would arise. The burden shifts on the accused to rebut the legal presumption.

¶52

9. Admittedly, the accused has not issued any

¶53

reply on receipt of the statutory notice as per Ex.P3. He has not stepped into the witness box. During crossexamination of PW.1, nothing has been elicited from him to disbelieve his version. Under such circumstances, it cannot be said that the accused is successful in rebutting the presumption under Sections 118 and 139 of N.I.Act. Accordingly, the accused is liable for conviction.

¶54

7 - NC: 2025:KHC-K:5525 CRL.A No. 200139 of 2024

¶55

HC-KAR

¶56

I have gone through the judgment of acquittal

¶57

passed by the Trial Court. It has proceeded to acquit the accused by forming an opinion that the issuance of legal notice as per Ex.P3 is beyond the period of 30 days prescribed under the Act and therefore the complaint is liable to be dismissed. Ex.P1 dated 12.08.2014 is the endorsement issued by the paying banker addressed to the collecting banker informing about the dishonor of the cheque in question. Ex.P2 is dated 18.08.2014 issued by the collecting banker informing the complainant regarding dishonor of the cheque. Therefore, the complainant came to know about the dishonor of the cheque only on 18.08.2014. On receipt of the endorsement as per Ex.P2. Ex.P3-legal notice dated 10.09.2014 was sent to the accused. Therefore, the legal notice was issued within 30 days from the date of intimation received by the accused regarding dishonor of the cheque.

¶58

The Trial Court misled itself by referring to Ex.P1 dated 12.08.2014 issued by the paying banker

¶59

8 - NC: 2025:KHC-K:5525 CRL.A No. 200139 of 2024

¶60

HC-KAR

¶61

informing the collecting banker regarding dishonor of the

¶62

cheque and holding that it was on that date the cause of action arose instead of 18.08.2014. This opinion formed by the Trial Court is prima-facie erroneous and without any

¶63

basis. The Trial Court also proceeded to hold that, PW.1 has not produced any authorization made to represent the complainant company. PW.1 stated in his affidavit in lieu of examination in chief that he was authorized by the Managing Director to depose on behalf of the company. There is no serious cross-examination on this fact deposed by PW.1. It is pertinent to note that, Ex.P3-the legal notice was also issued as per the instruction given by PW.1 on

¶64

behalf of Jamkhandi Sugars Limited. Under such circumstances, I do not find any reason to suspect the capacity of PW.1 to represent the complainant company.

¶65

When the accused admits that the cheque Ex.P6 belong to his bank account and it bears his signature, the presumption under Sections 118 and 139 of the N.I. Act would arise. The accused has not rebutted the said

¶66

9 - NC: 2025:KHC-K:5525 CRL.A No. 200139 of 2024

¶67

HC-KAR

¶68

presumption in any manner. The accused has specifically admitted that he entered into an agreement with the complainant company to harvest the sugar cane and supply the same to the sugar factory. However, it is his specific defence that he in fact completed the work as agreed and therefore no amount was payable to the complainant company. No materials are placed before the Court to substantiate such defence. The accused has not stepped into the witness box to depose about the same. Under such circumstances, it cannot be held that he has discharged his burden and probabalized his defence as stated above.

¶69

The Trial Court has not taken into consideration the position of law and proceeded to acquit the accused without any basis. Hence, I am of the opinion that the impugned judgment of acquittal passed by the Trial Court is liable to be set aside. Accordingly, I answer the above point in the affirmative.

¶70

10 - NC: 2025:KHC-K:5525 CRL.A No. 200139 of 2024

¶71

HC-KAR

¶72

Heard learned counsel for the respondent on

¶73

sentence and I proceed to pass the following:

¶74

ORDER

¶75

(i) The criminal appeal is allowed .

¶76

(ii) The impugned judgment dated 06.03.2024 passed in Criminal Case No.940/2014 by the learned Civil Judge and JMFC, Indi, is hereby set aside .

¶77

(iii) Consequently, the respondent/accused is convicted for the offence punishable under Section 138 of the N.I.Act. He is sentenced to pay fine of Rs.11,00,000/- within a period of six weeks from today. In default of payment of fine, he shall undergo simple imprisonment for a period of one year.

¶78