Dismissed¶¶62

Mr Podamada N Appaiah v. Mr T a Balakrishna

Karnataka HC3 Mar 2025CRL.A/2062/2018

Case brief

AI extract

What is this about?

Karnataka High Court, Bengaluru (H.P. Sandesh J), decided 03-03-2025, CRL.A No. 2062 of 2018, NC: 2025:KHC:8964 — complainant's appeal under S.378(4) CrPC against acquittal under S.138 NI Act (C.C.No.1048/2018, Civil Judge & JMFC Ponnampet, judgment dated 28.07.2018) DISMISSED; execution of sale agreement Ex.P6 and payment of Rs.15,00,000 held doubtful; S.139 NI Act presumption discussed; accused's defence (Rs.50,000 scheme loan, Rs.45,000 repaid, unreturned cheque and stamp paper) held more probable; no perversity in Trial Court findings; point answered 'Negative'; cheque dishonoured 'Funds Insufficient'; Kodagu/Virajpet/Ponnampet.

What did the court decide?

On re-assessment of the entire material on record, including the cross-examination of PW1 and the evidence of the accused, the execution of the sale agreement Ex.P6 is doubtful.

Mr Podamada N Appaiah Vs Mr T a Balakrishna — Cheque Dishonour | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the Trial Court committed an error in dismissing the complaint by concluding that there was no such transaction and no payment of Rs.15,00,000 by the complainant to the accused, and whether the acquittal requires this Court's interference. +1 more

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Court's answer

On re-assessment of the entire material on record, including the cross-examination of PW1 and the evidence of the accused, the execution of the sale agreement Ex.P6 is doubtful.

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Ratio / Principle

There is no perversity in the Trial Court's finding and no merit in the appeal to reach a different conclusion and reverse the judgment of acquittal passed by the Trial Court.

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Key takeaways

The accused's case is more probable than the complainant's: the documentary evidence of the accused probablizes his case, and the preponderance of probability is in favour of the accused and not in favour of the complainant.ratio¶¶59
Point No.1 is answered in the 'Negative', i.e., the Trial Court committed no error in dismissing the complaint and its judgment does not require this Court's interference.ratio¶¶59
Since the cheque and the signature thereon are admitted, the presumption under S.139 NI Act must be drawn, and the Court must then consider whether the accused has led plausible evidence to rebut it.

Detailed headnote1 paragraphs

Criminal appeal (CRL.A No. 2062 of 2018) under S.378(4) CrPC by the complainant against the judgment dated 28.07.2018 of the Civil Judge and J.M.F.C., Ponnampet in C.C.No.1048/2018 acquitting the accused of the offence punishable under S.138 NI Act. Complainant's case: sale agreement of June 2009 (Ex.P6) for Rs.15,00,000 allegedly paid in cash; on the accused's request to cancel the agreement a cheque (Ex.P1) dated 26.11.2015 for Rs.15,00,000 was issued, returned with the endorsement 'Funds Insufficient', whereafter notice and complaint followed. Defence: the accused had borrowed Rs.50,000 (receiving Rs.45,000 after Rs.5,000 interest deduction) for house construction under a scheme, repaid it, but the cheque and stamp paper were not returned. The High Court (H.P. Sandesh J) noted that the cheque and signature being admitted, the S.139 NI Act presumption arises subject to plausible rebuttal evidence; found the execution of Ex.P6 and the payment of Rs.15,00,000 doubtful — the complainant had borrowed Rs.3,00,000 from a bank in 2008 and collected the cheque nearly six years after the alleged 2009 payment; held the accused's documentary evidence probablized his case with the preponderance of probability in his favour; found no perversity in the Trial Court's findings, answered the point 'Negative' and dismissed the appeal. Decision dated 03.03.2025; NC: 2025:KHC:8964.

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NC: 2025:KHC:8964 CRL.A No. 2062 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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CRIMINAL APPEAL NO. 2062 OF 2018

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BETWEEN:

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MR. PODAMADA N. APPAIAH AGED ABOUT 66 YEARS, SON OF LATE NANJAPPA, DEVANOOR VILLAGE, BALELE HOBLI, VIRAJPET TALUK, KODAGU DISTRICT-571218.

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…APPELLANT

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(BY SRI. S.R.SREEPRASAD, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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MR. T.A. BALAKRISHNA AGED ABOUT 65 YEARS, SON OF LATE ACHUTHA, NEAR KODAVA SAMAJA, BALELE POST, VIRAJPET TALUK, KODAGU DISTRICT-571218.

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…RESPONDENT

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(RESPONDENT SERVED)

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THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT ORDER DATED 28.07.2018 PASSED BY THE CIVIL JUDGE AND J.M.F.C., PONNAMPET IN C.C.NO.1048/2018 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellant and

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respondent though served, unrepresented.

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This appeal is filed by the complainant against the dismissal of C.C.No.1048/2015 acquitting the accused. The case of the complainant before the Trial Court is that the accused is known to the complainant for many years, in the month of June 2009, the accused approached and asked the complainant to purchase his property for total consideration of Rs.15,00,000/-. Accordingly the accused executed a sale agreement in favour of the complainant and received Rs.15,00,000/- cash from the complainant. The accused promised the complainant that he would get ready the documents for registration in the month of November 2015. In the meantime, the accused tried to alienate the property, hence the complainant published a

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public notice in newspaper on 24.11.2015 stating his objection for the sale of property. That on 26.11.2015 the accused approached the complainant, requested him to cancel the sale agreement and issued a Cheque for Rs.15,00,000/-. Accordingly the complainant agreed to cancel the said agreement subject to encashment of the

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Cheque. When the said Cheque was presented for collection, the same was dishonored with an endorsement ‘Funds Insufficient’. The complainant caused a legal notice calling upon the accused to pay the amount covered under the Cheque. The notice was served to the accused, he gave untenable reply and the accused has not repaid the amount covered under the Cheque. Hence, the complaint was filed. The Trial Court taken cognizance and the accused was secured and he did not plead guilty and hence faced the trial. In order to prove the case of the complainant, he has been examined as PW1 and got marked Ex.P1 to Ex.P12 and accused was subjected to 313 statement and thereafter accused lead his evidence and he

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NC: 2025:KHC:8964 CRL.A No. 2062 of 2018

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has been examined as DW1 and got marked Ex.D1 to Ex.D6.

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The Trial Court having considered both oral and documentary evidence placed on record particularly the admission given by PW1 in cross-examination which is extracted in paragraph Nos.8 to 14 the admission of PW1 and comes to the conclusion that the very transaction of sale agreement itself is doubtful and also comes to the conclusion to pay the amount of Rs.15,00,000/- he was not having the amount since he had admitted in the year 2008 itself and he had borrowed the loan from the bank and hence it is clear that he was not having any sufficient money to purchase the property and also according to him, the agreement was entered between the parties in terms of Ex.P6 but on demand only Cheque was issued in the year 2015 which is subject matter of the case. The very transaction itself is doubtful and also payment of Rs.15,00,000/- and hence, not accepted the case of the complainant and hence dismissed the complaint filed by

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NC: 2025:KHC:8964 CRL.A No. 2062 of 2018

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the complainant. Being aggrieved by the said order, the present appeal is filed before this Court.

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appellant/complainant before this Court that the very finding of the Trial Court is erroneous and the Trial Court has not appreciated the material on record in a proper perspective. The Trial Court erred in coming to the conclusion that the appellant failed to discharge the burden of proof and respondent is liable for acquittal which is contrary to the judgment of the case of the Apex Court in a Rangappa’s case.

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The counsel also would vehemently contend

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that though he contend that reply was given, but not produced any document for having given the reply before the Trial Court. The counsel would vehemently contend that during the course of cross-examination, even suggestion was made with regard to the cancellation of agreement and if no such agreement, question of cancellation of agreement does not arise. The complainant

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has given clear answer that when the request was given to cancel the agreement, the same was refused and hence, failed to take note of the material available on record, particularly suggestion made to the PW1 by the counsel appearing for the accused himself in page No.10. The reason assigned by the Trial Court is erroneous. The counsel also would vehemently contend that the defense taken by the respondent that he had borrowed an amount of Rs.50,000/- and he had deducted the interest of Rs.5,000/- and he has given only Rs.45,000/- and at that time, he has collected the Cheque as well as the signature on the stamp paper and same is made use of it. The said defense is also not proved by the defense though examined himself as DW1 and hence, the very approach of the Trial Court is erroneous and it requires interference.

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Having heard the appellant’s counsel and also

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on perusal of material available on record, the point that would arise for consideration of this Court are:

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1) Whether the Trial Court committed an error in dismissing the complaint filed by the complainant in coming to the conclusion that there was no such transaction and payment of Rs.15,00,000/was made by the complainant as against the accused and whether it requires interference of this Court?

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2) What Order?

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Having considering the material on record, the very nutshell of the complainant is that the accused himself had approached him for sale of his property for sale consideration of Rs.15,00,000/- and he made the payment of Rs.15,00,000/- and he entered into agreement in terms of Ex.P6 and when he did not come forward to execute the sale deed, on demand he had issued the Cheque in issue that is Ex.P1 and when the same was presented, returned with an endorsement ‘Funds Insufficient’ and notice was given and no reply was given. No doubt there is no any need for the accused to enter

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into the witness box and rebut the case of the complainant and if complainant also relied upon the document of Ex.P1-Cheque which bears the signature of the accused. The accused also not disputes the Cheque and signature and also the document of Ex.P6-agreement and only his contention is that he had borrowed an amount of Rs.50,000/- for construction of his house and he repaid the said amount, but the complainant did not return the Cheque as well as the stamp paper and when he came to know about the creation of document in terms of Ex.P6, he went and demanded to return the same and he did not return the same. No doubt there is a presumption under Section 139 of N.I Act that if Cheque is admitted and signature is admitted, Court has to draw the presumption and also Court has to see whether there is any plausible evidence led by the accused. The DW1 also examined before the Court and he set out his defense that he had borrowed an amount of Rs.50,000/- and also it is his case that he had constructed a house in the year 2009 by availing the benefit of ‘Ashraya Scheme’ and taken the

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money of Rs.50,000/-, but he paid an amount of Rs.45,000/- after deducting Rs.5,000/- towards interest and paid an amount of Rs.45,000/- and also took the signature on the stamp paper which is Rs.100/- and the same is made use of filing of this complaint. In support of his contention also, he contend that he gave the reply through his advocate, but the same is not produced, but he instructed the advocate to produce the same. In the cross-examination of DW1 regarding payment of Rs.15,00,000/- nothing is elicited from him. The accused also relied upon the document of paper publication given by him which is marked as Ex.D1(a) and also produced the document of Ex.D2 for giving an application seeking the benefit of scheme under the ‘Rural Rozgar Scheme’ as per Ex.D2 and also produced the list of persons who are entitled for the scheme in the year 2006, 2007 and the same is marked as Ex.D3 to Ex.D5 as against the evidence of complainant. Hence, it is clear that he had availed the benefit of scheme under rural roster. Apart from that in the cross-examination of PW1, it is elicited from the mouth

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of PW1 that in the year 2008 he had availed the loan from the bank for an amount of Rs.1,75,000/- and again for an amount of Rs.1,25,000/- and in all totally an amount of Rs.3,00,000/- was borrowed as loan from the bank. The document Ex.P6 is agreement dated 10.06.2009 within a span of one year, the document came into existence wherein also, the document discloses that on the date of agreement itself, an amount of Rs.15,00,000/- was paid and also sale consideration is for an amount of Rs.15,00,000/- and demand was made in the year 2015 and refunded the amount with Cheque which is subject matter Ex.P1 that is dated 26.11.2015 and hence, the Trial Court rightly given the reason that when the agreement was entered in the year 2009 and having paid the amount of Rs.15,00,000/- in the year 2009 what made him to collect the Cheque for an amount of Rs.15,00,000/- after lapse of almost 6 years. Apart from that one year prior to the alleged agreement of Ex.P6, according to him, he made the payment of Rs.15,00,000/- but he had availed the loan from the bank to the tune of Rs.3,00,000/- from

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the bank and no explanation on the part of the complainant about how he got an amount of

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Rs.15,00,000/-. Apart from that what made him to make the payment of Rs.15,00,000/- on the date of agreement itself, entire sale consideration and also the registration of the document, no time limit is mentioned and also in the document of Ex.P6, it is mentioned that he is going to execute the sale deed in the year 2015 and in case if he does not come forward to execute the sale deed, undertaken to repay the amount through Cheque and also given liberty to file a case against him. Having considered the very averments of Ex.P6, it creates doubt in the mind of the Court. Hence, the Trial Court passed the reasoning order in coming to the conclusion that the very execution of the document of Ex.P6 is doubtful and also having made the payment of Rs.15,00,000/- as sale consideration that too a full sale consideration. In the year 2009 and agreed to refund the very same amount in the year 2015 and also given liberty to file a case if amount is not paid and the same is also taken note of by the Trial Court and also

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comes to the conclusion that the very contention of the complainant cannot be accepted and also detailed discussion is made in paragraph Nos.11 and 15, for having availed the loan of Rs.3,00,000/- in the year 2008 and contention that he made the payment of Rs.15,00,000/- in the year 2009 as well as the admission extracted in paragraph Nos.13 and 14 and in one breath he says that in the year 2009 property was in the name of B.K.Seetharam and not in the name of the accused and also taken note of the very admission on the part of PW1 that Cheque was given on 10.06.2009, but Cheque dated 26.11.2015 and the same is considered in paragraph No.26. Having re-assessed the material available on record including the cross-examination of PW1 and also the evidence of the accused when he availed the benefit of ‘Rural Rozgar scheme’ for construction of the house and availing loan of Rs.15,00,000/- as against the execution of the document Ex.P6 is doubtful and hence, I do not find

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any perversity in finding of the Trial Court while considering the case of the complainant, more than the

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case of the complainant, case of the accused is more probable since he had constructed the house availing the benefit of scheme under Rozgar and contend that he had availed the loan of Rs.50,000/- and out of that he has received Rs.45,000/- only and repaid the same and Cheque and stamp paper was not returned when the payment was made and documentary evidence of accused probablize the case of the accused and no material and preponderance of probability is in favour of the accused and not in favour of the complainant. Hence, I do not find any merit in the appeal to comes to a other conclusion and reverse the judgment of acquittal by the Trial Court. Hence, I answer the point as ‘Negative’.

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In view of the discussions made above, I pass the following:

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ORDER

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The Criminal Appeal is dismissed.

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Sd/(H.P.SANDESH) JUDGE

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RHS List No.: 1 Sl No.: 24

Mr Podamada N Appaiah v. Mr T a Balakrishna

Case brief

What is this about?

What did the court decide?

Mr Podamada N Appaiah v. Mr T a Balakrishna

Case brief

What is this about?

What did the court decide?

What the court decided

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