Karnataka High Court
Sri V. Dyavappa vs Sri I.H.M. Basavarajappa on 29 November, 2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER 2019
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
CRIMINAL APPEAL NO. 1028 OF 2011
BETWEEN:
SRI. V. DYAVAPPA
S/O. SHIVAPPA
AGED ABOUT 57 YEARS
OCC: INDUSTRY & AGRICULTURE
R/A. 6TH MAIN, 6TH CROSS
P.J.EXTENSION
DAVANAGERE
...APPELLANT
(BY SRI. SRIKANTH V. KUMBAR, ADV. FOR
SRI. V. F. KUMBAR, ADV.)
AND:
SRI. I. H. M. BASAVARAJAPPA
S/O. I. H. M. BASAPPAYYA
AGED ABOUT 61 YEARS
PROFESSOR MAHANTASWAMY ARTS &
SCIENCE COLLEGE, HAUNSBHAVI
R/A. HAUNSBHAVI
HIREKERUR TALUK
HAVERI DISTRICT
... RESPONDENT
(BY SRI. S. S. HALALLI, ADV.) ABSENT
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
04.08.2011 PASSED BY THE PRL.SR.CIVIL JUDGE AND
CJM, DAVANAGERE IN C.C.NO.520/09 ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138
OF N.I.ACT.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant aggrieved by the order dated 04.08.2011, passed in C.C.No.520/2009, has filed the present appeal.
2. Brief facts of the case are as under:
The appellant and respondent were known to each other. The respondent approached and requested the appellant to advance a hand loan of Rs.2,00,000/-, to meet the medical expenses of his wife as she was suffering from knee ailments. Accordingly, the appellant has advanced the same on 21.11.2004. Again in the year 2005, respondent requested additional hand loan of Rs.2,00,000/-. The appellant, considering the -3- need of the respondent, paid Rs.2,00,000/- as additional loan on 03.07.2005. When the appellant demanded the respondent to repay the said amount, respondent issued cheque bearing No.362436 amounting to Rs.4,00,000/- on 18.11.2005, drawn on Karnataka Central Co-operative Bank Ltd., Haunsbhavi, towards discharge of loan amount. When the appellant presented the said cheque for encashment, the same was dishonoured on the ground of 'stop payment' issued by the respondent. Bank has issued an endorsement on 23.11.2005. After the receipt of the endorsement, the appellant issued a legal notice on 02.12.2005, calling upon the respondent to pay the amount mentioned in the cheque. The respondent replied to the said legal notice on 10.01.2005, denying the alleged loan transaction and did not pay the amount within the time mentioned in the legal notice. Therefore, the appellant was forced to file a complaint under Section 200 of Cr.P.C. for the offence punishable under Section -4- 138 of the Negotiable Instruments Act, 1881 ('the N.I.Act' for short). The Trial Court recorded the sworn statement of the appellant. Cognizance was taken against the respondent. The respondent, on receiving summons, appeared before the court and sought for bail. He did not plead guilt and claimed to be tried. The Trial Court posted the matter for trial. The appellant, in support of his complaint, got examined himself as PW-1 and one witness by name Nagarajappa as PW-2 and got marked 12 documents as Exs.P1 to P12. The respondent, in support of his defense, examined himself as DW-1 and got marked 12 documents as Exs.D1 to D12. The Trial Court, after appreciating the materials on record, acquitted the respondent under Section 255(1) of Cr.P.C. Against the said order, the appellant has filed the present appeal.-5-
3. Heard arguments of learned counsel for the appellant. Learned counsel for the respondent is absent. Perused the records.
4. It is the contention of learned counsel for the appellant that the appellant has advanced hand loan of Rs.2,00,000/- on 21.11.2004 and additional hand loan of Rs.2,00,000/- on 03.07.2005, to the respondent and on demand for repayment of the said amount, the respondent has issued a cheque and the same was dishonoured. The respondent has committed an offence punishable under Section 138 of the N.I.Act. He further submits that in Ex.D2, the respondent has mentioned only in regard to four cheques which were lost, but he has not mentioned regarding the cheque under reference. The contention of the learned counsel for the appellant that the said cheque bears the signature of the respondent, is admitted by the respondent in his cross-examination. It is further contended that the -6- respondent has neither lodged any complaint to the police nor to bank officials intimating the loss of cheques. He has further contended that Ex.D6 - complaint does not bear the seal and signature of police officials and also does not disclose that the cheques were lost.
5. On perusal of the evidence of PW-1 and DW-1 along with the documents, it is apparent that the appellant has not produced any material to show that he has advanced a total amount of Rs.4,00,000/- as hand loan to the respondent on 21.11.2004 and 03.07.2005. Under Section 138 of the N.I.Act, the initial burden lies upon the complainant/appellant to show that he has advanced loan of Rs.4,00,000/-. But in the present case, the appellant has not placed any material on record to show that he has advanced hand loan of Rs.4,00,000/- to the respondent. -7-
6. Before the Trial Court, the respondent has denied regarding advancing of loan by the appellant. Respondent has submitted that he has not issued any cheque to the appellant. As on the date of alleged issuance of cheque, he was admitted in Narayana Hrudayalaya Hospital, Bengaluru, as an inpatient on 16.11.2005 and he underwent surgery for Pericardial Patch Closure of ASD on 18.11.2005, and hence the question of issuing the alleged cheque on 18.11.2005, does not arise. Further, the respondent in support of his contention that he was admitted in Narayana Hrudayalaya Hospital, has produced letters issued by the said Hospital at Exs.D4 and D5, both dated 23.11.2005, stating that the respondent was admitted on 16.11.2005 and underwent surgery for Pericardial Patch Closure of ASD on 18.11.2005, and he was discharged on 23.11.2005. The said fact has not been denied by the appellant. The contention of the appellant that the respondent has issued the alleged -8- cheque on 18.11.2005, cannot be accepted for the reasons stated above. At one stretch the appellant says that the cheque was issued on 18.11.2005 in the house situated at P.J.Extension, Davanagere, at another stretch he says that the cheque was issued prior to the date mentioned therein. The appellant is not firm as to when the cheque was issued and further the appellant has also not pleaded in the complaint as to when the cheque was issued. The date of issuance of cheque is silent in the complaint.
7. The contention of the appellant is that the amount was advanced to the respondent for the medical treatment of respondent's wife. The said fact has been denied by the respondent stating that his wife was missing since 21.03.2003, and his son has lodged a complaint as per Ex.D6. Ex.D6 was sent to the police station by RPAD. The respondent has produced copy of the postal receipts at Exs.D7 & D8 and the -9- acknowledgments at Exs.D9 & D10. The acknowledgments shows that the police authorities have received the complaint sent by respondent's son. When the wife of the respondent was missing since 21.03.2003, the question of the respondent taking loan from the appellant for her medical treatment, that too in the year 2004 and 2005, does not arise. Respondent has taken a contention that while traveling he has lost 10 cheques and he has intimated the same to the bank on 22.12.2003, as per Exs.D2 and D3, wherein he has disclosed the cheque numbers also. As per Ex.D2, the cheque under reference bearing No.362436, is also mentioned and the bank has endorsed on Ex.D2 in regard to the receipt of said letter. In the said letter, respondent has intimated the bank that he has lost the said cheques and requested to stop payment in respect of the said cheques. The said intimation was given much prior to the date of issuance of alleged cheque. The said document has not been seriously disputed by
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the appellant. The contention of the respondent that he has not issued the cheque and the same was lost while he was traveling, is corroborated by Exs.D2 and D3. The respondent has also replied to the legal notice as per Ex.D10. He has also denied about the alleged loan transaction that took place between the appellant and respondent.
8. The Trial Court, after considering the entire material on record, has rightly held that the appellant has failed to prove the loan transaction. In other words, the Trial Court has held that the appellant has failed to prove the pre-existing liability of the respondent. The respondent has placed sufficient material to show that the appellant has not advanced any loan as alleged in the complaint and also produced materials to show that his cheques were lost and the same was intimated to the bank authorities. Hence, I do not find any ground
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to interfere with the impugned order. Accordingly, I proceed to pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE RD