Karnataka High Court
Sri H Manjunath vs Sri A M Basavaraju on 3 July, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE JAWAD RAHIM
CRL.A. No. 952 OF 2009
BETWEEN:
SRI H.MANJUNATH,
S/O HANUMANTH RAO,
AGED ABOUT 43 YEARS,
DOOR NO.25, M.I.G., MOODA LAYOUT,
NANJANAGUD TOWN, MYSORE DIST.
... APPELLANT
(BY SRI V.MANJUNATH, ADV.,)
AND:
SRI A.M.BASAVARAJU,
S/O LATE MUDDA LINGAPPA,
AGED ABOUT 50 YERS,
HOUSE NO.381/2,R.P.ROAD,
OPP. J.S.S.COLLEGE,
NANJANAGUD TOWN,MYSORE DIST.
... RESPONDENT
(BY SRI V.SRINIVAS, ADV.,)
***
THIS CRL.A FILED UNDER SECTION 378(4) OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 07.11.2009 PASSED BY THE ADDL. C.J. (JR.DN) &
JMFC., AT NANJUNGUD IN C.C.NO.1008/2005 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE
OFFENCE P/U/S 138 OF N.I ACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY
THIS COURT DELIVERED THE FOLLOWING:-
2
JUDGMENT
Complainant is in appeal against the acquittal of the respondent for the offence punishable under Section 138 of the Negotiable Instrument Act.
2. Heard learned counsel for appellant and the respondent.
3. The records reveal:
The Complainant initiated prosecution against respondent for the offence punishable under Section 138 of the Negotiable Instruments Act (in short 'the N.I. Act') on the allegation that respondent had borrowed Rs.1,50,000/- from him and issued impugned cheque towards discharge of liability. However, on presentation the cheque was dishonoured by the bank necessitating issuance of statutory notice, which respondent - accused received but failed to comply.
4. The accused entered appearance and denied he had borrowed Rs.1,50,000/- from the Complainant. He 3 specifically averred that he borrowed Rs.1 lakh, which he repaid to the Complainant by depositing in his account. Thus he would contend that impugned cheque was not enforceable. The last ground that was urged is the impugned cheque was blank when it was issued and the same was misused by the Complainant to fill in Rs.1,50,000/-.
5. In the trial that ensued the Complainant tendered evidence as PW1 and 5 documents were marked while accused tendered evidence as DW1 and produced bank pass book.
6. The learned trial Judge found that Complainant had failed to establish the impugned cheque was issued by the accused towards discharge of Rs.1,50,000/-, it held that even though accused may have issued impugned cheque it was unenforceable as accused has paid to the respondent Rs.1,00,000/- by transferring amount to complainant's account. The learned counsel took me to the evidence on record to submit that respondent is a retired Professor and 4 in good terms with the Complainant, therefore, he paid the amount. But respondent evaded action against him and ultimately only after issuance of NBW his presence was secured in 2008. He submits Complainant has believed respondent and accepted cheque.
7. The learned counsel for respondent supports the impugned Judgment.
8. Keeping in mind what is urged I have examined the record in supplementation thereto.
9. As seen from the complaint there is no statement as to when the amount was actually given to the accused. The Complainant has merely mentioned the date of issuance of cheque without any material particulars of the transaction. The cheque in question undoubtedly is signed by the accused. The dispute raised is entries made in the cheque are not in his handwriting. Entries in Ex.P1 supports to the contentions of the learned counsel for appellant that entries in the cheque are not in the handwriting of the accused. It is not the case of the Complainant that cheque 5 was issued in blank and filled up later with consent of the accused. The Complainant assertively contend that it is the accused who filled up cheque thereby creating/shifting burden upon herself to prove it is in the handwriting of the accused.
10. Perusal of the cheque at Ex.P1 makes it manifest that except signature all other entries are in different handwriting, different ink and undoubtedly made at different time. In this view it is difficult to accept the version of the Complainant. Even if we accept accused had issued the cheque it is proved accused had already deposited Rs.1 lakh in the account of the Complainant but Complainant, has failed account for it. The learned trial Judge has examined the evidence in the correct perspective and arrived at a right conclusion. No case is made out against the respondent. On reappraisal also I find reasoning of trial Court is fully justified and finds support from the evidence on record. It needs no interference. 6
11. Hence, the order of the trial Court acquitting the respondent for the offence punishable under Section 138 of the N. I. Act is hereby affirmed. Appeal failed and it is dismissed.
SD/-
JUDGE VK