Karnataka High Court
K S Nagarajappa S/O K Siddappa vs Dibbada Kotresh S/O Channabasappa on 3 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 359, 2020 (2) AKR 422
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.1334/2010
Between:
K.S. Nagarajappa
S/o K. Siddappa
Age: 56 years
Proprietor
M/s Karur Chiranjivi Dalali Mandi
APMC Yard, "C" Block
Davanagere. ... Appellant
(By Sri Mahesh.R.Uppin, Advocate)
And:
Dibbada Kotresh
S/o Channabasappa
Age: Major
Agriculturist
R/o Chikkabidari
Sarathi Post, Harihar Taluk
Davanagere District. ...Respondent
(By Sri M.V. Hiremath, Advocate)
This Criminal Appeal is filed under Section 378(4) of Cr.P.C.
praying to set aside the order dated 06.09.2010 passed by the PCJ
(Sr.Dn.) and CJM, Davanagere in C.C.No.2101/2009 acquitting the
respondent/accused from the offence punishable under Section
138 of N.I. Act and etc.,
This Criminal Appeal coming on for Hearing this day, the
Court delivered the following:
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JUDGMENT
This is complainant's appeal against the judgment and order passed by the trial Court acquitting the accused/respondent of an offence punishable under Section 138 of N.I. Act, 1881 ('N.I. Act' for short).
2. Heard the learned counsel appearing for the appellant/complainant and the learned counsel appearing for the respondent/accused.
3. The case of the complainant is that he is running dalali mandi business at APMC Yard, Davanagere dealing as commission agency for agricultural produce brought by the agriculturist to his shop. The accused is an agriculturist having agricultural land at Chikkabidari Village. For the maintenance of his agricultural land, the accused used to borrow money from the complainant for purchase of seeds, manure, pesticides and also for purchase of tractor, reimbursement of tractor loan, agricultural implements, for improvement of his land etc. There was a balance of Rs.5,25,000/- which was due from the accused as per ledger balance dated 24.05.2006. When 3 the complainant demanded for payment of the outstanding debt, which was not cleared by the accused inspite of stipulated period, and on demand, the accused started dragging the matter and finally towards payment of the said debt, the accused issued a cheque bearing No.0222 dated 24.05.2006, for a sum of Rs.5,25,000/-, drawn on Jilla Valmiki Girijana Pattina Sahakara Sangha Ltd., Davanagere through account No.125 and requested the complainant to present the cheque for encashment. Accordingly, when the said cheque was presented for encashment by the complainant through his collecting banker, Bapuji Co-operative Bank Ltd., HMR Branch, Davanagere on 24.05.2006, the said cheque was returned with an endorsement "Insufficient Fund". A legal notice dated 05.06.2006 was issued to the accused under certificate of posting and also by registered post with acknowledgment due. However, the accused failed to reply to the notice and failed to pay the amount mentioned in the cheque within the stipulated time. Hence, the accused committed an offence punishable under Section 138 read with Section 142 of the Act.
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4. Before the trial Court, the complainant got examined himself as PW.1 and got marked Exs.P1 to P6. The accused got examined as DW.1 and got marked Exs.D1 to D7.
5. The trial Court after considering the oral and documentary evidence, acquitted the accused. Aggrieved by which, the present appeal is preferred.
6. The learned counsel appearing for the appellant has vehemently contended that the issuance of cheque and the signature on it has not been disputed by the accused. As such, the trial Court ought to have drawn a legal presumption in favour of the complainant. The accused has failed to rebut the presumption by adducing any cogent evidence. The appellant has proved the existence of debt, issuance of cheque, dishonouring of cheque in question for insufficient amount. The accused has also failed to reply to the legal notice and failed to honor the cheque by making the payment mentioned therein within the stipulated time. Hence, all the ingredients of Section 138 of N.I. Act has been fulfilled and inspite of that the 5 trial Court on an erroneous consideration acquitted the accused. The learned counsel contends that the reasons assigned by the trial Court are not in accordance with law. Accordingly, he seeks to allow the appeal.
7. Per contra, the learned counsel appearing for the respondent contends that the accused has not disputed the issuance of cheque and also the signature on Ex.P1. However there was no outstanding dues of Rs.5,25,000/- as alleged by the complainant. Though the accused was borrowing about Rs.30,000/- from the complainant once in every six months for the purpose of purchasing pesticides, seeds and manure etc., for agricultural operations, the accused was clearing the said loan by selling the paddy crops. In the year 1992 due to flood in the Thungabhadra river, the crop cultivated by the accused was destroyed. Hence, he could not clear the loan borrowed from the complainant during that time and he was due only a sum of Rs.24,800/- to the complainant. In this regard, the complainant persuaded the accused to open an account in Jilla Valmiki Girijana Pattina Sahakara 6 Sangha Ltd., Davanagere and obtained a signed blank cheque from him as security which was later presented to the bank by the complainant by filling the amount. The learned counsel contends that the complainant has not at all established that a sum of Rs.5,25,000/- was due from the accused as on 24.05.2006. No documents are produced by the complainant to establish the same. He submits that the trial Court having meticulously examined the entire evidence and material on record has rightly acquitted the accused. Accordingly, he seeks to dismiss the appeal.
8. The complainant has got examined himself as PW1. He has reiterated the complaint averments. According to him for the maintenance of his agricultural land, accused used to borrow loan from him and there was a balance of Rs.5,25,000/- as per ledger balance dated 24.05.2006. In this connection, the accused issued a cheque which was dishonored.
9. Accused has not disputed that Ex.P1-cheque does not belong to him. He has also not disputed the signature found in the cheque. However, it is the specific 7 case of the accused that he was due only a sum of Rs.24,800/- and when he requested the complainant to receive the said amount without interest the complainant did not agree. The settlement also did not work out. Thereafter the complainant by persuading him, took him to Jilla Valmiki Girijana Pattina Sahakara Sangha Ltd., wherein the complainant was a former Director and he succeeded in opening a savings bank account in the name of accused and thereafter took the signed blank cheque promising that he will keep the said cheque for the purpose of security.
10. The complainant has disputed the defence taken by the accused. However, as noted supra it is the specific case of the complainant that the accused was due a sum of Rs.5,25,000/- as per the ledger balance dated 24.05.2006. To show that as on the said date the outstanding amount was Rs.5,25,000/-, complainant has not produced any document. It is not the case of the complainant that the accused borrowed a sum of Rs.5,25,000/-. On the other hand it is his case that over a 8 period of time, the accused borrowed the amount and there was a balance of Rs.5,25,000/- as on 24.05.2006. When such is the case, it is for the complainant to convincingly establish that the amount due as on 24.05.2006 as per the ledger maintained by him was Rs.5,25,000/-. Though the complainant has stated that he has maintained the ledger, he has failed to produce the same before the trial Court. In such a circumstance, the defence taken by the accused that the cheque in question was received by the complainant as a security appears probable. The complainant has failed to prove that the accused was due a sum of Rs.5,25,000/- as on 24.05.2006. From the evidence on record it cannot be said that Ex.P1-cheque was issued by the accused in discharge of a legally recoverable debt.
11. The trial Court has considered the evidence adduced by both the parties and held that the complainant has failed to prove the cheque-Ex.P1 was issued by the accused towards discharge of his outstanding dues. The reasons assigned by the trial Court cannot be said to be either perverse or illegal. There is no merit in the appeal. 9
Hence, the following;
ORDER Appeal is dismissed.
Sd/-
JUDGE ssb