Karnataka High Court
Sri C R Venkatesh vs Sri S K Sadhashiva on 12 October, 2012
1 Crl.A 301/08
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL APPEAL No.301 OF 2008
BETWEEN:
C R VENKATESH
S/O RANGAPPA
AGED ABOUT 36 YEARS
R/O SRI RANGA INDUSTRY
NEKARA STREET
CHICKAMAGALORE
... APPELLANT
(BY SRI: V D RAVIRAJ, ADV)
AND:
S K SADHASHIVA
S/O LATE PATEL KALEGOWDA
AGED 44 YEARS
R/O SATHIHALLI POST
ALDURU
CHICKAMAGALORE DISTRICT
... RESPONDENT
(BY SRI: A N RADHAKRISHNA, ADV)
THIS CRL.A. IS FILED UNDER SECTION 378 CR.P.C.
PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL
DT.24.09.2007 IN C.C. NO.1445/2004, ON THE FILE OF THE
CIVIL JUDGE (JR.DN.) & JMFC, CHICKMAGALORE,
CONSEQUENTLY CONVICT THE RESPONDENT FOR THE OFFENCE
PUNISHABLE UNDER SECTON 138 OF N.I. ACT AND SENTENCE
HIM ACCORDING TO THE LAW.
2 Crl.A 301/08
THIS CRL.A. COMING ON FOR HEARING, THIS DAY THE
COURT DELIVERED THE FOLLOWING:
J U D G M E N T
The appellant has challenged the judgment and order acquitting the respondent for the charge under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act' for short) on a trial held by JMFC, Chikmagalur.
2. Brief facts for the purpose of this appeal are as under:
The appellant is the complainant whereas the respondent is accused before the Trial Court. The appellant contended that the respondent had borrowed a handloan of Rs.50,000/- from him and in turn issued a cheque bearing No.0865816 drawn on Vyasa Bank, Chikmagalur Branch for a sum of Rs.50,000/- dated 11.06.2002. The cheque was presented to the banker and it returned with an endorsement of insufficient funds.
The complainant issued a notice which was replied by the respondent denying the allegations made and 3 Crl.A 301/08 therefore, the complaint came to be filed before the Trial Court for the offence under Section 138 of the Act.
3. As the respondent did not plead guilty, the complainant was examined as PW1 and in his evidence, documents Exs.P1 to P6 were marked. Statement of the respondent was recorded under Section 313 Cr.P.C. Respondent had got marked Exs.D1 and D1A, but no evidence was led by him. The Trial Court heard the respective counsel for the parties and on appreciation of the material placed on record, acquitted the respondent for the aforesaid charge. The complainant is in appeal against the judgment and order of acquittal.
4. I have heard Sri.V D Raviraj, learned Counsel for the appellant and Sri.A N Radha Krishna, learned Counsel for the respondent.
5. It is the contention of learned Counsel for the appellant that the signature on the cheque is not in dispute. Further, the respondent has not entered 4 Crl.A 301/08 the witness box and in the circumstances, he submits that the Trial Court ought to have held the material placed on record as sufficient to prove the guilt of respondent beyond reasonable doubt.
6. On the other hand, learned Counsel for the respondent submits that there are no specific allegations in the complaint with regard to advancement of loan and cheque issued. He submits that the complainant has made a false claim against the respondent for the offence under Section 138 of the Act. Hence, he submits that the Trial Court on appreciation of the material on record has granted an order of acquittal and the appellant has not made out any grounds to warrant interference.
7. As could be seen from the complaint filed by the appellant, it is stated that "for consideration the accused had from the complainant, he issued a cheque in favour of the complainant drawn on Vysya Bank Ltd., Chikmagalur Branch bearing cheque No. 0865816 for Rs.50,000/- dated 11.06.2002". Nowhere, in the 5 Crl.A 301/08 complaint the appellant made any specific allegation that loan was advanced to the respondent on any day, month, time or year. Even, in the affidavit filed in support of the application, there are no particulars and in the chief examination, he did not say anything as regards the date on which loan was advanced. For the first time in the cross examination, he stated that few days earlier to the date of cheque, amount was paid. In the complaint, he has stated that the respondent issued a cheque towards repayment of loan and as the cheque was dishonoured, he is liable for the offence under Section 138 of the Act. Therefore, it is necessary for the complainant atleast to plead the date, month or year in which loan was advanced to the respondent.
8. It is relevant to note that even in the notice - Ex.P3, there is no specification of the particulars regarding the loan advanced. The respondent had denied the allegation in the notice and a copy of reply - Ex.P5 was produced by the complainant. The absence of these particulars is the 6 Crl.A 301/08 material omission and this aspect has to be considered on the context of other circumstances on record in the evidence of PW1. According to the respondent, one Lokesh is the person with whom the respondent had loan transaction. The respondent by way of security had given a cheque to said Lokesh. In the cross examination, PW1 initially pleaded ignorance of the acquaintance with the said Lokesh and he also denied about any transaction with him, but when the document - Ex.D1 was shown to him, he admitted about his acquaintance and also the transaction. This is a doubtful circumstance and the Trial Court has rightly disbelieved the evidence of PW1. When the said Lokesh was the resident of same locality and when the complainant was very much aware of him, he could not have pleaded ignorance of his acquaintance.
9. So, from the material placed on record, a probable defence has been put forth by the accused and in the absence of any particulars with regard to advancement of loan, date and time etc., I think the Trial Court had decided to grant an order of acquittal. 7 Crl.A 301/08 Though the cheque is said to have been signed by the respondent, a perusal of Ex.P1 reveals that the handwriting in the contents of cheque and the signature are different and when PW1 states that the accused had given a cheque in his presence, there could not have been any question with regard to difference in handwriting and the signature. Therefore, it has to be held that the complainant has failed to establish the guilt of respondent beyond reasonable doubt.
10. In an appeal against acquittal, Appellate Court is slow in interfering with the order of acquittal. Even if a second view is possible, the one accepted by the Trial Court cannot be disturbed. In view of this principle and the circumstances stated above, I do not find any justifiable grounds to interfere with the impugned judgment and order.
In the result, the appeal fails and is dismissed accordingly.
Sd/-
JUDGE *bgn/-