Karnataka High Court
Sri T R Sampathu vs Sri Srinivasa on 25 February, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.1649/2017
BETWEEN:
SRI. T.R. SAMPATHU
S/O RAJAPPA
AGED ABOUT 45 YEARS
R/O TIRUMALAPURA VILLAGE
KASABA HOBLI, HOLENARASIPURA TALUK
HASSAN DISTRICT-573 201
....APPELLANT
(BY SRI. SUMANTH L. BHARADWAJ, ADVOCATE)
AND:
SRI. SRINIVASA
S/O VARADAIH
AGED ABOUT 45 YEARS
MANGALAPURA VILLAGE
KASABA HOBLI,
HOLENARASIPURA TALUK
HASSAN-573 201
.... RESPONDENT
(BY SRI. K. SRIRAMULU M, ADVOCATE FOR
SRI. B. LETHIF, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED
01.09.2017 PASSED BY THE CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HOLENARASIPURA IN
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C.C.NO.675/2013-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 16.02.2022, COMING ON FOR
'PRONOUNCEMENT JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the consent of the learned counsels appearing on both sides, the same is taken up for final disposal.
2. The complainant/appellant has filed this appeal under Section 378(4) of Criminal Procedure Code, 1973 ('Cr.P.C.' for short) challenging the judgment of acquittal dated 01.09.2017 passed by the Civil Judge and JMFC, Holenarasipura ('trial Court' for short) in C.C. No.675/2013, whereby the learned Magistrate has acquitted accused/respondent herein for the offence 138 of N.I. Act.
3. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.
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4. The brief factual matrix leading to the case is that, the complainant and accused are acquainted with each other and the respondent borrowed loan of Rs.3,00,000/- on 25.11.2013 for his legal necessities. It is the further case of the complainant that, towards repayment of the said loan, the accused has issued a cheque dated 28.03.2013 drawn on Post Office, Holenarasipura and when the complainant has presented the said cheque, it was returned with an endorsement 'Insufficient Funds'. Later on, the complainant has got issued a legal notice on 30.03.2013 demanding repayment of the loan amount and to the said notice, the accused has given an evasive reply. Hence, he lodged a complaint under Section 200 of Cr.P.C. alleging that, accused has committed an offence under Section 138 of the Negotiable Instruments Act, 1881 ( 'N.I. Act' for short).
5. Learned Magistrate after taking cognizance has recorded the sworn statement of the complainant and 4 issued process against the accused. The accused has appeared through his counsel and enlarged on bail. The accusation was read-over and explained to accused and he pleaded not guilty and claimed to be tried.
6. The complainant was got examined himself as PW.1 and placed reliance on five documents marked at Ex.P1 to Ex.P5. After conclusion of evidence of the prosecution, the statement of accused under Section 313 of Cr.P.C. was recorded to enable him to explain the incriminating evidence appearing against him. The case of accused is of total denial. He did not choose to lead any oral or documentary evidence in support of his defence.
7. After having heard the arguments and on perusing the records, the learned Magistrate has come to a conclusion that, the complainant has failed to establish that accused has committed offence under Section 138 of N.I. Act by issuing a cheque in respect of legally enforceable 5 debt and thereby acquitted the accused/respondent herein. Being aggrieved by he judgment of acquittal, complainant has approached this Court by filing this appeal.
8. Heard the arguments advanced by the learned counsel for appellant and respondent. Perused the records.
9. Learned counsel for the appellant would contend that the reasons assigned by the trial Court for acquitting the accused are based on principles of law of equity and justice. He would further contend that the trial Court has failed to note that, no rebuttal evidence is adduced by the accused and since signature on the cheque is admitted, the presumption ought to have been drawn in favour of the complainant and when presumption is not rebutted, the trial Court ought to have convicted the accused. He would contend that, accused has not led any evidence to rebut the presumption and the trial Court has ignored these material aspects and hence he would contend that the judgment of 6 acquittal is perverse and calls for interference by this Court. Hence, he would seek for allowing the appeal by setting aside the impugned judgment of acquittal and sought for convicting the accused.
10. Per contra, the learned counsel for the respondent/accused would contend that the financial capacity of the complainant to advance Rs.3,00,000/- itself is in dispute and the complainant has not produced any material document to show his financial status. Further, he would also contend that the postal intimation regarding endorsement on cheque was not placed on record and on perusal of Ex.P1 and endorsement at Ex.P1(b) it is evident that the cheque was bounced on 19.02.2007. But, the postal seal was got obtained on 28.03.2013 and a false complaint came to be lodged. He would also contend that the endorsement at Ex.P1(b) is again supported by the reply notice-Ex.P5 and hence, he would contend that, 7 presumption cannot be drawn in favour of the complainant in view of the fact that his financial status itself is disputed.
11. Having heard the arguments of the learned counsels appearing on both sides and on perusing the records, it is the contention of the complainant that, on 25.01.2013 , the accused has availed loan of Rs.3,00,000/- and for repayment of the said amount, he has issued Ex.P1. It is further asserted that, when the said cheque was presented for encashment, it was returned on 28.03.2013. This is a specific case made out by the complainant. The cross-examination reveals that, the accused has not denied his signature on the cheque. The disputed cheque is marked at Ex.P1 and the cheque is also dated 28.03.2013. But, it is important to note here that, though there is a seal dated 28.03.2013 of the Post Office, but regarding bouncing of the cheque on 28.03.2013, no endorsement was issued by the Postal Department. On the contrary, on perusal of endorsement at Ex.P(1)(b), it is evident that the said 8 cheque was bounced for 'Insufficient Funds' on 19.02.2007 itself. When the cheque is dated 28.03.2013, why it was bounced on 19.02.2007 itself is not at all forthcoming and it is for the complainant to explain these lacunas. The complainant could have produced an intimation of the Post Office regarding bouncing of the cheque. On the contrary, considering these aspects, the defence set-up by the accused in reply notice (Ex.P5) appears to be more probable, in view of the fact that about five years back cheques were issued and they were being misused.
12. Further, all along, the complainant has contended that, he has advanced loan of Rs.3,00,000/- to accused on 25.01.2013. In cross-examination though he claimed that, he is an agriculturist and he possess three acres of land and from each acre, his annual income is Rs.50,000/-, but, no piece of material is produced to show that he is possessing three acres of land and he is getting income from that land. Further, he admits that, it is the 9 dry land and as such, earning annual income of Rs.50,000/- from dry land is not acceptable, unless the complainant leads any material evidence. It is hard to accept the contention of the complainant that he has advanced Rs.3,00,000/- without any document and he has also not placed any material evidence to show his financial status. Even no document is produced to show that the cheque was bounced on 28.08.2013. The postal endorsement date at Ex.P1(b) is 19.02.2007. In that event, the cheque ought to have been issued much earlier itself. The complainant has failed to establish existence of any legally enforceable debt as on the date of issuance of cheque and material documents regarding dishonor of the cheque on a particular date is also not established. Under such circumstances, the ingredients of Section 138 of NI are not proved by the complainant. The learned Magistrate has considered all these aspects and has appreciated the oral and documentary evidence in detail by analyzing them. Hence, 10 it is evident that the judgment of acquittal does not call for any interference by this Court, as it does not suffer from any illegality or perversity. Under such circumstances, the appeal is devoid of any merits and needs to be rejected. Accordingly, I proceed to pass the following:-
ORDER The appeal is dismissed. The judgment of acquittal dated 01.09.2017 passed by the trial Court viz., the Civil JMFC, Holenarasipura, in CC No. 675/2013, stands confirmed.
Sd/-
JUDGE KGR*