Karnataka High Court
Sri Shirdi Sainatha Vividoddesha ... vs Sri Girisha on 4 June, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC:19086
CRL.A No. 535 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 535 OF 2024
BETWEEN:
SRI SHIRDI SAINATHA VIVIDODDESHA
SOUHARDA PATHINA SAHAKARI NIYAMITHA
REPRESENTED BY ITS MANAGER
SRI RAGHAVENDRA, S/O VISHWANATH
AGED ABOUT 35 YEARS
R/AT 1627, NORTH EXTENSION
HASSAN DISTRICT - 573 201.
...APPELLANT
(BY SRI PRATHEEP K C, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI AND:
Location: HIGH
COURT OF
KARNATAKA SRI GIRISHA
S/O VENKATASHETTY
AGED ABOUT 30 YEARS
R/AT MAGGE VILLAGE
RAYARAKOPPALU POST
KENCHAMMA HOSAKOTE HOBLI
ALUR TALUK
HASSAN DISTRICT - 01.
...RESPONDENT
(BY SRI THUSHANATH C V, ADVOCATE)
THIS CRL.A IS FILED U/S 378(4) OF CR.P.C. PRAYING TO
SET ASIDE THE JUDGMENT DATED:19.12.2023 IN
C.C.NO.6759/2021 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND
J.M.F.C., HASSAN AND CONVICT THE RESPONDENT U/S 138 OF
N.I. ACT.
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NC: 2024:KHC:19086
CRL.A No. 535 of 2024
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by appellant -complainant praying to set aside the judgment of acquittal dated 19.12.2023 passed in C.C. No.6759/2021 by the Principal Civil Judge and JMFC, Hassan. Respondent -accused has been acquitted under impugned judgment for offence punishable under Section 138 of Negotiable Instruments Act (herein after referred as 'N.I Act' for brevity).
2. Heard learned counsel for the appellant - complainant and learned counsel for the respondent - accused.
3. Brief facts of the case is that One Dharanendra H and respondent -accused being the co-obligant have approached the appellant -complainant for personal loan of Rs.1,00,000/- to meet their family exigencies agreeing to repay the same. The complainant advanced a sum of Rs.1,00,000/- to the said Dharanendra H and that both of them agreed to repay the same together -3- NC: 2024:KHC:19086 CRL.A No. 535 of 2024 with interest at the rate of 18% p.a. and agreed to repay the loan amount payable in 24 equated monthly installments of Rs.4,167/-. The said Dharanendra H and respondent - accused have not kept up their promise to repay the loan amount and became defaulters. Appellant -complainant has demanded to clear the loan amount together with interest. Respondent -accused issued cheque EX.P1 for a sum of Rs.64,900/- towards discharge of the liability. The said cheque is presented for encashment and the same was dishonoured with the shara 'FUNDS INSUFFICIENT'. Inspite of issuance demand notice, the respondent -accused did not repay the cheque amount. Therefore, appellant - complainant initiated proceedings against the respondent - accused for offence punishable under Section 138 of N.I.Act.
4. One Raghvendra has been examined as P.W.1 and got marked documents as EX.P1 to 6. Respondent - accused has been examined as D.W.1 and no documents have been produced on behalf of respondent -accused. The Trial Court after hearing parties and appreciating evidence on record has passed impugned judgment of acquittal, -4- NC: 2024:KHC:19086 CRL.A No. 535 of 2024 acquitting the respondent -accused for offence punishable under Section 138 of N.I Act.
5. Learned counsel for the appellant would contend that the issuance of cheque and signature of respondent - accused on the said cheque is admitted. The said cheque EX.P1 is issued for repayment of balance loan amount. Respondent -accused is co-obligant to the loan barrowed by the Dharanendra H and the said aspect is not disputed by the respondent -accused. Respondent -accused has admitted issuance of cheque. The presumption under Section 139 of the N.I Act is to be drawn. Learned Magistrate has failed to take all these aspects and errored in acquitting the respondent -accused for offence punishable under Section 138 of N.I. Act. With this, he prayed to allow the appeal.
6. Learned counsel for the respondent -accused would contend that appellant -complainant has not produced any documents to establish that Dharanendra H has barrowed loan and this respondent -accused was co-obligant to the said loan amount borrowed by the Dharanendra H. -5- NC: 2024:KHC:19086 CRL.A No. 535 of 2024 He further contends that the appellant -complainant has not established legally recovery of debt. P.W.1 has admitted in his cross examination that cheque does not pertain to the present transaction. It is defence of the respondent - accused that the cheque has been issued in the earlier transaction when Dharanendra H has barrowed the loan in the year 2014-15. It is further defence that the said loan amount barrowed by the Dharanendra H in the year 2014-15 is repaid and cheque given at that time is misused by the appellant -complainant. The trial court appreciating evidence on record has rightly acquitted this respondent - accused for offence punishable under Section 138 of N.I. Act. With this, he prays for dismissal of the appeal.
7. Having heard learned counsels, this Court has perused the impugned judgment and the trial Court records.
8. It is the case of the complainant that one Sri Dharanendra H and this respondent -accused being co- obligant barrowed loan amount of Rs.1,00,000/- from the appellant -complainant agreeing to repay the same with interest at 18% P.A. in 24 equated monthly installments of -6- NC: 2024:KHC:19086 CRL.A No. 535 of 2024 Rs.4,167/-. It is further case that cheque EX.P.1 has been issued for making repayment of balance loan amount of RS.64,900/-. The complainant has not produced any documents to establish that Dharanendra H. has borrowed a sum of Rs.1,00,000/- and this respondent -accused stood as co-obligant to the said loan. Even the complainant has not produced statement of loan account of Dharanendra H to establish that as on the date of EX.P1 i.e. 31.03.2021 an amount of 64,900/- was due. Respondent -accused who has been examined as D.W.1., even though he has admitted signature on EX.P1 cheque, but he has contended that it was issued to loan of Dharanendra H. that he availed loan from the complainant in the year 2014-15 and said loan has been repaid. P.W.1 in his cross examination has admitted that respondent -accused has not issued cheque pertaining to the present loan transaction but he has affixed signature on document. The said admission of P.W.1 will prove the defence of the respondent -accused.
9. The appellant -complainant even though being Sauhard Pathina Sahakari Niyamitha has not produced any -7- NC: 2024:KHC:19086 CRL.A No. 535 of 2024 loan documents pertaining to the Dharanendra H and respondent -accused. Even they have not produced the loan account extract to indicate that the Dharanendra H and this respondent -accused were due an amount of Rs.64,900/- being amount of cheque EX.P1.
10. Considering all these aspects the learned Magistrate has rightly acquitted the respondent -accused for offence punishable under Section 138 of N.I. Act. There are no grounds to admit the appeal.
Hence, the appeal is dismissed.
Sd/-
JUDGE DSP List No.: 1 Sl No.: 38