Karnataka High Court
Mr.B.L.Karunakar Hegde vs Mr.Shubhakara Shetty on 12 December, 2012
Equivalent citations: 2013 ACD 248 (KAR), 2013 (1) AIR KANT HCR 567, (2013) 3 ICC 351, (2013) 3 ALLCRILR 361
1 Crl.A.No.458/2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF DECEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL APPEAL No.458 OF 2009
BETWEEN:
MR.B L KARUNAKAR HEGDE
S/O MR.T G LAKSHMAN HEGDE
AGED 63 YEARS
EX-SERVICEMAN
C/O MRS.MOHINI S HEGDE
PADAVU MEGINAMANE
KULASHEKHAR
MANGALORE - 575 005
... APPELLANT
(BY SRIYUTHS:I S PRAMOD CHANDRA &
M PRAKASH, ADVS)
AND:
MR.SHUBHAKARA SHETTY
S/O LATE MR.MAHABALA SHETTY
AGED ABOUT 42 YEARS
RESIDENT OF
NADUBETTU HOUSE
VANDAR
GOLIANGADY POST
UDUPI DISTRICT
... RESPONDENT
(BY SRI:MAHESH KIRANSHETTY, ADV)
2 Crl.A.No.458/2009
THIS CRL.A. IS FILED UNDER SECTION 378(4)
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED
08.04.2009 PASSED IN CC NO.2322/2001 ON THE FILE
OF THE CIVIL JUDGE (SENIOR DIVISION) AND JMFC,
PUTTUR ACQUTITING THE RESPONDENTS/ACCUSED FOR
THE OFFENCE P/U/S 138 OF NI ACT.
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 'NI Act' for short) on a trial held by JMFC, Puttur.
2. The facts relevant for the purpose of this appeal are as under:
The appellant who is the complainant before the Trial Court is said to have advanced a sum of Rs.1,40,000/- to the accused in the month of May, 2000. The respondent is the accused before the Trial Court and is said to have issued cheque dated 06.06.2000 for Rs.1,40,000/- 3 Crl.A.No.458/2009 towards repayment of the said dues. The said cheque was presented for encashment in the Co- operative Society and it returned with an endorsement "insufficient funds". The appellant issued a notice and as the demand made in the notice was not complied, he approached the Trial Court with a complaint under Section 200 Cr.P.C. seeking to initiate action under Section 138 of the NI Act.
3. During the trial, the appellant was examined as PW1 and documents Exs.P1 to P7 were marked. The statement of respondent was recorded under Section 313 Cr.P.C. The respondent is examined as DW1 and documents Exs.D1 and D17 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, acquitted the respondent for the said charge. Aggrieved by the judgment and order of acquittal, the present appeal has been filed. 4 Crl.A.No.458/2009
4. I have heard learned Counsel for both the parties.
5. It is the submission of learned Counsel for the appellant that the signature on the cheque is not in dispute and therefore, he claims that the presumption arise under Section 139 of NI Act and as the said presumption is not rebutted, he contends that the Trial Court ought to have convicted the respondent for the said charge.
6. On the other hand, learned Counsel for the respondent submits that abundant material is placed on record to rebut the presumption and the Trial Court has rightly acquitted the respondent-accused on the basis of said material.
7. The appellant has produced the cheque at Ex.P1, the bank endorsements at Exs.P2 and 3, whereas lawyer's notice has been produced at 5 Crl.A.No.458/2009 Ex.P4. In the evidence, he submits that there were transactions between himself and the respondent prior to May, 2000 for about three years. Further, his evidence reveals that appellant had paid loan to the respondent on different occasions in the said period. So it is the defence of respondent that during the years 1997 to 1999, when he had taken loan from the appellant, he had given blank cheque as security and the said cheque has been misused by the appellant by filing a complaint making false allegation that a sum of Rs.1,40,000/- was advanced as loan in May, 2000.
8. It is material to note that except the oral version and the cheque - Ex.P1, the appellant has not produced any material on record to prove the advancement of loan. That apart, PW1 admits in the cross examination that except the signature, the contents of cheque are in his handwriting. Further, the respondent has 6 Crl.A.No.458/2009 produced the documents i.e., letters at Exs.D1, D3 to D6 and it is his contention that towards repayment of loan and in relation to the transactions for the period from 1997 to 1999, the appellant had threatened the respondent in those letters stating that he would send the respondent to jail, in case, if the loan payable is not repaid with costs.
9. A perusal of these letters would reveal that there was such threat and those letters are addressed to the respondent. Though the appellant has disputed the handwriting in those letters i.e., Exs.D1, D3 to D6, during the pendency of proceedings, those letters were sent to the opinion of handwriting expert after obtaining the admitted handwriting and disputed handwriting of the appellant and a report was given and it reveals that the admitted handwriting and disputed handwriting is similar. So from this opinion, which has been furnished 7 Crl.A.No.458/2009 by the expert which is a part of record of the Court, it is very much clear that the letters Exs.D1, D3 to D6 were written by the appellant wherein he has given threat to repay the amount and he has also stated in those letters that in case if the amount is not paid, the blank cheque which has been given by the respondent will be filled in and a complaint would be filed against the respondent. Even in the cross examination, the appellant admits that he had taken a cheque as a security and he has filled the contents of the said cheque in his handwriting. Though these documents have been marked in the cross examination of appellant for the purpose of marking, the expert opinion would reveal that contents are in the handwriting of appellant and in such circumstances, I do not find any wrong on the part of Trial Court in accepting these documents and concluding that the respondent has 8 Crl.A.No.458/2009 placed material on record to rebut the presumption under Section 139 of the Act.
10. The scrutiny of material placed on record does not reveal any such grounds to warrant interference in the judgment and order of Trial Court. In the result, the appeal fails and is dismissed.
The deposit of Rs.5,000/- by the appellant before this Court on 30.07.2009 be refunded to him.
Sd/-
JUDGE *bgn/-