Karnataka High Court
Babu S/O. Irappa Shirali vs Narayan S/O. Nagappa Naik on 2 December, 2020
Author: Ravi.V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2 N D DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
CRIMINAL APPEAL No.100095/2014
BETWEEN:
SHRI BABU S/O IRAPPA SHIRALI,
AGE: 38 YEARS, R/O GUMMANHAKLA,
SHIRALI, TQ: BHATKAL, DIST: KARWAR.
... APPELLANT
(BY SRI VAGEESH R.HEGDE, ADVOCATE FOR
SRI VENKATESH M.KHARVI, ADVOCATE)
AND
SHRI NARAYAN S/O NAGAPPA NAI K,
AGE: 30 YEARS, R/O GUDIGADDE,
SHIRALI-2, TQ: BHATKAL,
DIST: KARWAR.
... RESPONDENT
(BY SRI SURESH S.BHAT, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C. SEEKING TO ALLOW THIS APPEAL
AND SET ASIDE JUDGMENT DATED 12.03.2014 PASSED
BY THE ADDL.CIVIL JUDGE AND J.M.F.C. COURT,
BHATKAL IN C.C.NO.460/2012.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed challenging judgment dated 12.03.2014 passed by the Addl.Civil Judge and J.M.F.C. at Bhatkal in C.C.No.460/2012 acquitting accused for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I.Act', for short).
2. Brief facts leading to this appeal are that a complaint was filed by complainant on 21.02.2012 stating that complainant and accused are known to each other and as such accused had borrowed a sum of Rs.18,000/- on 25.07.2011 promising to return it within one month and issued cheque No.637451 drawn on Vijaya Bank for Rs.18,000/-. When it was presented for payment, it was returned with bank endorsement dated 25.07.2011 stating "funds insufficient". Thereafter, complainant had issued statutory notice by RPAD to accused on 11.01.2012. It was served on accused on 14.01.2012. Accused did 3 not either reply to it or make payment, constraining complainant to file complaint.
3. After recording of sworn statement of complainant and taking cognizance, summons was issued to accused. Accused appeared, denied the charges and sought for trial. During trial, complainant examined himself as PW1 and two other witnesses as PW2 and PW3. He also got marked cheque as Ex.P1, bank memo as Ex.P2, statutory notice as Ex.P3, postal endorsement as Ex.P4, copy of specimen signature card as Ex.P5 and copy of loan ledger extract as Ex.P6.
4. Thereafter the incriminating material was explained to accused, which was denied by him. No explanation was offered nor any defence evidence led. Based on the same, trial court framed the following points for its consideration:
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1. Whether the complain an t proves the exis tence of legally recoverable debt?
2. Whether the co mplain an t has complied with all the man datory require ments as conte mpl ated under Section 138 of the Nego tiable Instruments Act?
3. Whether the co mplain an t proves that the accused co mmitted the off ence punishable under Section 138 of the Nego tiable Instruments Act?
4. What order?
5. After answering Point Nos.1 and 3 in the negative and holding that Point No.2 did not survive for consideration, the trial Court proceeded to pass impugned judgment of acquittal. Challenging acquittal, complainant is in appeal.
6. Learned counsel Sri Vageesh R.Hegde appearing for Sri Venkatesh M.Kharvi submitted that complainant proved the signature of accused on the cheque by examining Manager of Vijaya Bank as PW3. 5
The accused had account in Vijaya Bank and PW3 produced Ex.P6-the ledger extract showing that accused used to sign in English also. The accused's signature in Ex.P6 is similar to his signature on Ex.P1-cheque. Thus having proved accused's signature on Ex.P1-cheque. Presumption under Section 118 and 139 of the N.I. Act was available to complainant. It was submitted that even in the absence of any rebuttal evidence by accused, trial Court acquitted the accused which caused miscarriage of justice. It was further submitted the reason assigned by trial Court that failure to mention date on which the loan was borrowed is factually incorrect as the same is clearly mentioned in the statutory notice as well as the complaint. Even the next reason that non-examination of any other person casted doubt about loan transaction is also unsustainable as the complainant had duly proved the transaction and the accused had failed to rebut 6 the presumption in favour of the complainant. It was also pointed the decision in K.Vishwanath Pai V/s Venkatesh S.Bhat, reported in 2009(1) KCCR 508, by trial Court was also unjustified as the same was in turn with reference to the decision of Hon'ble Supreme Court in Krishna Janardhan Bhat V/s Dattatraya G.Hegde reported in (2008) 4 SCC 54, which was overruled by the Hon'ble Supreme Court in Rangappa V/s Sri Mohan reported in (2010) 11 SCC
441. Hence, all the reasons assigned by trial Court in support of impugned judgment were perverse. Hence sought for setting aside order of acquittal and for conviction of accused.
7. On the other hand, learned counsel Sri Suresh S.Bhat submitted that there was serious doubt about signature of accused on cheque. There was no similarity between his signature on Ex.P5, the signature specimen card produced by complainant 7 with on the cheque Ex.P1. Learned counsel also submitted that issuance of statutory notice in this case was beyond period of thirty days from the date of receipt of intimation about dishonour of the cheque and that this was one of the reasons for trial Court to pass the impugned judgment of acquittal.
8. I have heard learned counsel, perused impugned judgment and record.
9. Indeed the reasons assigned by trial Court namely that burden of proof lie on complainant to prove legally recoverable debt, referring to the decision in Vishwanath Pai's case (supra) which in turn referred to the decision in Krishna Bhat stood overruled in Rangappa's case. Therefore, said reason was perverse. The next reason that non-examination of any other person is also not justified as it is not the quantity but the quality of evidence that is required to be considered by Courts. But the decisive 8 reason in this case avails from a perusal of Ex.P2, intimation from Bank. It is seen that no date is mentioned in Ex.P2. Even though Manager of Syndicate Bank, the complainant's banker is examined as PW2, the said witness has not stated about the date of presentation of cheque or date of intimation. But the statutory notice Ex.P3 is issued on 11.01.2012. Ex.P4 also reveals that article was booked on 11.01.2012 and delivered to addressee on 14.01.2012. Thus, it is clearly established that statutory notice was issued to accused beyond period of thirty days, in contravention of clause-(b) to proviso to Section 138 and hence acquittal of accused is totally justified. I am also supported by decision of Hon'ble Supreme Court in the case of Kamlesh Kumar V/s State of Bihar and another reported in (2014) 2 SCC 424. Though the other reasons assigned by trial Court may be perverse. The end result does not call for interference. 9
Appeal is devoid of merits and is accordingly dismissed.
SD/-
JUDGE CL K