Karnataka High Court
Sri Puttappa vs Sri B Rangaswamy on 15 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:45747
CRL.A No. 1227 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.1227 OF 2019 (A)
BETWEEN:
1. SRI PUTTAPPA,
S/O LATE BASAPPA,
AGED ABOUT 67 YEARS,
AGRICULTURIST & BUSINESS,
R/O SANEHALLY VILLAGE,
KASABA HOBLI,
HOSADURGA TALUK,
CHITRADURGA DIST-577527.
...APPELLANT
(BY SMT. SPOORTHY HEGDE N., ADVOCATE)
AND:
1. SRI B RANGASWAMY,
S/O BASAVARAJAPPA,
AGED ABOUT 37 YEARS,
Digitally EMPLOYEE IN PRIMARY HEALTH CENTRE,
signed by
R/O SANTHEBENNURU,
SOWMYA D
CHANNAGIRI TALUK,
Location:
DAVANAGERE DIST-577552.
High Court
of ...RESPONDENT
Karnataka (BY SRI. VIJAYAKUMAR S.C., ADVOCATE)
CRL.A. FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT DATED 29.04.2019 PASSED BY THE PRINCIPAL
CIVIL JUDGE AND JMFC HOSADURGA IN C.C.NO.134/2017-
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CRL.A No. 1227 of 2019
ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE
P/U/S.138 OF N.I.ACT AND ETC.,
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 378(4) of Cr.P.C. by the appellant/complainant challenging the judgment of acquittal passed by the Principal Civil Judge and JMFC, Hosadurga, in C.C. No.134/2017, dated 29.04.2019.
2. For the sake of convenience, parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are as under:
That the accused is well acquainted with the complainant for a long time and he approached the complainant on the last week of September 2016 for a hand loan of Rs.10,00,000/- for his family necessity. The complainant has advanced hand loan of Rs.10,00,000/- to -3- NC: 2023:KHC:45747 CRL.A No. 1227 of 2019 the accused for a period of two months. When the complainant sought for repayment of the loan amount paid to the accused, the accused has issued a cheque bearing No.787267 dated 02.12.2016 of State Bank of Mysore, Channagiri Branch for a sum of Rs.10,00,000/-. When the said cheque was presented for encashment, the same was returned with endorsement as 'funds insufficient'. Then the complainant has got issued a statutory notice to the accused but, the accused did not respond the same. Hence, he filed a complaint under Section 200 of Cr.P.C. before the learned Magistrate.
4. The learned Magistrate after recording the sworn statement of complainant has taken cognizance of the offence and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. The plea under Section 138 of N.I. Act was recorded and accused denied the same.
5. To prove the guilt of the accused, the complainant has got examined himself as P.W.1 and the -4- NC: 2023:KHC:45747 CRL.A No. 1227 of 2019 brother of accused was examined on behalf of the complainant as P.W.2. The complainant has also placed reliance on 12 documents marked at Exs.P.1 to P.12. After conclusion of the evidence of the complainant the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him and case of the accused is of total denial. He did not choose to lead any oral or documentary evidence in support of his defence.
6. After having heard the arguments and appreciating the oral and documentary evidence, the learned Magistrate has acquitted the accused for the offence under Section 138 of N.I. Act by exercising his powers under Section 255(1) of Cr.P.C.
7. Being aggrieved by the judgment of acquittal, the complainant/appellant is before this Court by way of this appeal.
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8. Heard the arguments advanced by the learned counsel for the appellant and the learned counsel for the respondent. Perused the records.
9. The learned counsel for the appellant would contend that the complainant has advanced a loan of Rs.10,00,000/- by cash on 26.09.2016 and the same is evidenced by P.W.2, who is the younger brother of the accused. It is also asserted that in the discharge of said debt, the disputed cheque came to be issued and though financial capacity of the complainant is disputed, it appears that it is only a formal denial and hence, he would contend that the learned Magistrate has erroneously acquitted the accused. Hence, he would seek for allowing the appeal by convicting the accused.
10. Per contra, the learned counsel for the respondent would contend that the financial capacity of the complainant was challenged and the complainant claims to have grown Pomegranate in his lands. But, record disclose that he is possessing hardly 35 guntas of -6- NC: 2023:KHC:45747 CRL.A No. 1227 of 2019 the land along with his brother and the delivery challan produced were said to have been issued by one Akram Basha of Hosadurga but, these delivery challans were from Chennai. The complainant claims that he planted fifteen hundred Pomegranate plants and he purchased those Pomegranate plants from one Subbanna, Bajjappana Hatti, Hosadurga. But, no documents have been produced. He would contend that the evidence of P.W.2 is not trust worthy as relationship between accused and P.W.2 are strained, though they are brothers. It is contended that the cheque was issued for maintenance to be paid to the mother and the said cheques have been misused. As such, he would contend that the learned Magistrate has appreciated the oral and documentary evidence in proper prospective and has rightly acquitted the accused, which does not call for any interference.
11. Having heard the arguments and perusing the records, now the following point would arise for my consideration:
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NC: 2023:KHC:45747 CRL.A No. 1227 of 2019 "Whether the judgment of acquittal passed by the learned Magistrate is perverse, arbitrary or erroneous so as to call for any interference by this Court"?
12. It is the specific contention of the complainant that the accused has requested loan from him in the last week of September 2016 and on 26.09.2016 he paid the amount. It is further asserted by the complainant that along with accused, his younger brother i.e., P.W.2 also came for demanding the amount and received the amount and he has also supported the case of the complainant. But, quite interestingly in the cross-examination, the complainant has claimed that in the month of June-2016, the accused has approached him for advancement of loan and further asserts that he never asserted regarding approach of accused in the month of September-2016 in his complaint or in his legal notice. But, in the complaint and legal notice, he has specified that the accused was said to have approached the complainant in the month of September-2016 last week but, the evidence given by the complainant/P.W.1 is contrary.
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13. In his initial cross-examination, the complainant admits that 35 guntas is in joint name of himself and his brother and in 35 guntas there is coconut groove. But, subsequently he set up a defence that he planted Pomegranate trees. When he uprooted the coconut trees and when he planted the Pomegranate trees is not at all forthcoming. Though he claims to have to be in possession of agricultural lands, from Ex.P.10 it is evident that, he is possessing only 35 guntas jointly in his name along with his brother. Exs.P.11 and P.12 does not assist him as they are standing in the name of one Chandrappa. These two documents are exclusively standing in the name of Chandrappa and the entries are shown to be on the basis of partition. The complainant has not produced any other document to assert that he possesses other lands also.
14. Further the accused has disputed the financial status of the complainant. The complainant has placed reliance on Exs.P.6 to P.8. But, Exs.P.6 to P.8 are only delivery challans issued by M/s.Nashra Fruit Company, -9- NC: 2023:KHC:45747 CRL.A No. 1227 of 2019 Chennai. But, the complainant in his cross-examination claimed that he has sold the Pomegranates to one Akram Basha of Hosadurga. He never asserted that he has sold the Pomegranates through the Commission Agent, Chennai. Even the author of Exs.P.6 to P.8 is not examined and hence, Exs.P.6 to P.8 does not establish the claim of the complainant regarding his financial status.
15. The 'cheque' is defined under Section 6 of Negotiable Instruments Act, 1881 which reads as under:
6. "Cheque". --A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.
Explanation I. --For the purposes of this section, the expressions--
(a) "a cheque in the electronic form" means "a cheque drawn in electronic form" by using any computer resource and signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system; or with electronic signature, as the case may be:
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(b) "a truncated cheque" means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substituting the further physical movement of the cheque in writing.
Explanation II. --For the purposes of this section, the expression "clearing house" means the clearing house managed by the Reserve Bank of India or a clearing house recognised as such by the Reserve Bank of India.] Explanation III. --For the purposes of this section, the expressions "asymmetric crypto system", " computer resource", "digital signature", "electronic form" and "electronic signature" shall have the same meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000).
16. Admittedly, cheque is a Negotiable Instrument. Section 138 of N.I. Act mandates that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability.
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17. However, whether in the instant case, the cheque is a Negotiable Instrument itself, is required to be considered. On perusal of the cheque/Ex.P.1, it is evident that it was issued for Rs.10,00,000/. No doubt the signature on the cheque and that the cheque belongs to the accused is an undisputed fact. However, it is the specific defence of the accused that the cheque was issued to his mother towards payment of maintenance and in view of the relationship between him and his brother/P.W.2 and his mother, the same has been misused by colluding with the complainant.
18. On perusal of the Ex.P.1, there is a specific endorsement on the cheque that "it is payable at par at all the Branches of State Bank of Mysuru" and this multicity cheque is payable up to a maximum of Rs.5,00,000/-. Hence, it is evident that the validity of the cheque is only for Rs.5,00,000/- but, the cheque was issued for Rs.10,00,000/- and hence, in other terms it cannot be termed as a Negotiable Instrument. Hence, the
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NC: 2023:KHC:45747 CRL.A No. 1227 of 2019 presumption under Section 139 of N.I. Act cannot be drawn in favour of complainant in view of these lapses.
19. As observed above, the complainant has not even proved his financial status and the amount is said to have been paid by cash, which is a doubtful aspect and he possess hardly seventeen and half guntas of land and initially he admits that, there was coconut groove in the said land, but subsequently he claims to have planted pomegranate trees. When the coconut trees are removed and when pomegranate trees are planted is not at all forthcoming. Even for having purchased these trees, no documents have been produced and the complainant admits that he is a petty business man. Considering these aspects, he has failed to substantiate his claim that he was financially sound to advance the loan amount of Rs.10,00,000/-. Considering these facts and circumstances, it is evident that the cheque was not issued towards any legally enforceable debt.
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20. The learned Magistrate has appreciated the oral and documentary evidence in detail and has rightly acquitted the accused. No perversity or illegality is found in the judgment of acquittal passed by the learned Magistrate. Under such circumstances, the appeal itself is devoid of any merits.
21. Considering these facts and circumstances, the point under consideration is answered in the Negative and hence, I proceed to pass the following:
ORDER The appeal stands dismissed.
Sd/-
JUDGE MS* List No.: 1 Sl No.: 13