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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2023 BEFORE THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL APPEAL NO. 158 OF 2018 BETWEEN: SRI. DHARMALINGAIAH, S/O GURUSIDDAIAH, AGED ABOUT 47 YEARS, RESIDING AT NO.87, 17TH MAIN ROAD, LAKSHMINAGARA J.C. NAGARA, KURUBARAHALLI, BENGALURU - 560 022. …APPELLANT (BY SRI. SHIVA KUMAR U, ADVOCATE) AND: SRI. T. GIRIYAPPA @ GIRISH, S/O LATE THIMMAIAH, AGED ABOUT 54 YEARS, RESIDING AT NO.34/1, 22ND MAIN ROAD, J.C. NAGARA, KURUBARAHALLI, BENGALURU - 560 086. ALSO WORKING AT FOREMEN TRAINING INSTITUTE, LAGGERE, TUMKUR ROAD CROSS, BENGALURU - 560 022. …RESPONDENT (BY SRI. L.S. MANJUNATH, ADVOCATE) Digitally signed by CHAITHRA P Location: HIGH COURT OF KARNATAKA
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626
THIS CRL.A IS FILED U/S 378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL VIDE JUDGMENT DATED 16.12.2017 PASSED IN C.C.NO.20218/2016 BY THE XXII A.C.M.M., BANGALORE THEREBY PASS AN ORDER OF CONVICTION DIRECTING THE ACCUSED TO PAY DOUBLE THE CHEQUE AMOUNT i.e.,RS.11,20,000/- IN RESPECT OF CHEQUE BEARING NO.869163 DATED 11.07.2016 DRAWN ON 'KARNATAKA BANK LIMITED', JAYANAGARA, 4tH BLOCK, BANGALORE-560011 FOR RS.5,60,000/- DRAWN IN FAVOUR OF THE COMPLAINANT AND ORDER FOR IMPRISONMENT OF THE ACCUSED-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 ON N.I ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This appeal under Section 378(4) of the Cr.P.C. is filed by the complainant challenging the judgment of acquittal passed by the XXII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.20218/2016, dated 16.12.2017.
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 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: The complainant and the accused are known to each other and on the said acquaintance, the accused had approached the complainant for lending him a sum of Rs.6,00,000/- and on 14.03.2016, the complainant lent him a sum of Rs.6,00,000/- in cash. The accused assured for repayment of the same within two months and on 10.06.2016, he repaid a sum of Rs.40,000/- and agreed to repay the balance of Rs.5,60,000/- within one month i.e., on 02.07.2016. When the complainant approached the accused for repayment of the balance amount, the accused had issued a cheque bearing No.869163 for a sum of Rs.5,60,000/- dated 11.07.2016 drawn on Karnataka Bank Ltd., Jayanagara 4th Block Branch, Bengaluru-560
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 011. When the said cheque was presented on 11.07.2016, it was returned with an endorsement ‘Payment Stopped' by the drawer as well as for ‘Insufficient of Funds’. On 04.08.2016, the complainant issued a notice to the accused and inspite of service of notice, the accused did not repay the cheque amount and issued an untenable reply. Hence, complainant filed a complaint alleging that the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short '138 of N.I. Act'). 4. After recording the sworn statement and after appreciating the documentary evidence, the learned Magistrate has taken cognizance of the offence punishable under Section 138 of the N.I. Act, and issued process against the accused. The accused appeared through his counsel and was enlarged on bail.
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 5. The plea under Section 138 of the N.I. Act was recorded and the same was read over and explained to the accused. He pleaded not guilty. 6. The complainant has got examined himself as PW.1 and placed reliance on 6 documents marked at Exs.P1 to Ex.P6. After conclusion of the evidence of the complainant, the statement of the accused under Section 313 of the Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the complainant. The case of the accused was of total denial. The accused later on got examined himself as DW.1 and also got examined 3 witnesses as DWs.2 to 4 and placed reliance on 6 documents marked at Exs.D1 to Ex.D6. 7. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Magistrate acquitted the accused for the offence
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 punishable under Section 138 of N.I. Act by exercising the powers under Section 255(1) of Cr.P.C. 8. Being aggrieved by this judgment of acquittal, the complainant is before this Court by way of this appeal. 9. Heard the learned counsel for the appellant/complainant. Learned counsel for respondent/accused did not appear before this Court, so as to advance his arguments. Perused the records. 10. Learned counsel for the complainant/appellant would contend that, the trial Court has mainly acquitted the accused on the ground that, the complainant did not plead regarding financial source to advance a huge loan of Rs.6,00,000/- to the accused. He would also assert that, the financial status of the complainant was never challenged and hence the question of the complainant, pleading and proving of the said aspect does not arise at all as the presumption under Section 139 of the N.I.Act is
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 in favour of the complainant. Hence, he would seek for setting aside the judgment of acquittal and convicting the accused/respondent herein. 11. Having heard the arguments and perusing the records, now the following point would arise for my consideration: "Whether the judgment of acquittal passed by the learned Magistrate is perverse, arbitrary and erroneous so as to call for any interference by this Court".
It is the specific contention of the complainant that on 14.03.2016, the accused borrowed a sum of Rs.6,00,000/- from complainant and on 10.06.2016 he repaid an amount of Rs.40,000/- and agreed to repay the balance amount of Rs.5,60,000/- within a period of one month. It is the specific assertion that, later on, the accused had issued a cheque under Ex.P1 dated 11.07.2016 for a sum of Rs.5,60,000/-, which is admittedly dishonored.
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626
There is no serious dispute of the fact that, the cheque belongs to the account of the accused and it bears his signature. Hence, the initial presumption under Section 139 of the N.I. Act, is in favour of the complainant that the cheque was issued towards legally enforceable debt.
It is the specific assertion of the complainant that the debt was pertaining to the year 2016. The accused issued a reply to the legal notice issued by the complainant as per Ex.P6, wherein, he has specifically asserted that in the year 2008, there were transactions between the complainant and the accused and the complainant under the guise of obtaining the loan, obtained two cheques from accused and in the year 2008 itself he issued intimation to the bank for stop payment. He would also assert that, one cheque bearing No.869164 was presented for encashment in the year 2008 which was bounced and hence, a legal notice came to be issued, which was properly replied. Hence, it is the specific
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 assertion of the accused that the transaction is not pertaining to the year 2016 as asserted by the complainant and he would contend that the cheque was issued in the year 2008 which is misused by the complainant.
The complainant got examined himself as PW.1. In his examination-in-chief, he has reiterated all the complaint allegations. In spite of reply notice given by the accused as per Ex.P6, in the entire complaint, the complainant no where pleaded about the transaction of the year 2008 and he has not disclosed or given any explanation to the reply notice. In the cross-examination he claims that, he is working in a travel agency and further asserts that he is owning a vehicle and earns Rs.50,000/- per month and he is having an agricultural land and earns Rs.10,000 to 15,000/- per annum. He further asserts that, he is an Income Tax assessee and if the complainant is an Income Tax assessee, nothing
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 prevented him from producing relevant documents. On the contrary, the complainant asserts that he paid the amount in cash. 16. In the cross-examination, the complainant has specifically admitted that except the present transaction he had no other transactions with the accused. Interestingly, in the further cross-examination though he initially denied regarding lodging of a complaint in Mahalakshmipuram Police Station, Bengaluru, but however, later on he admitted that he lodged a complaint in this regard. He further admits that in respect of dishonour of cheque on 17.12.2008, he had issued a notice on 09.01.2009. Though he asserts that in the year 2008 cheques bearing Nos.869163 and 869194 were issued, but the reply notice was issued by the accused as per Ex.D3 which discloses that it was pertaining to a cheque No.869164. Notice was issued on 09.01.2009 and when the complainant specifically asserted that, there
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 were no earlier financial transactions between him and the accused, he did not explain regarding Ex.D3 and for what purpose cheque No.869164 came to be issued. 17. The accused has further placed reliance on Ex.D1 which was the notice issued by the complainant dated 17.12.2008 wherein, again it is pertaining to the bouncing of cheque No.869164 and he had not disclosed as to why this cheque bearing No.869164 was issued in the year 2008. The cheque in this case marked at Ex.P.2 is cheque bearing No.869163 i.e., just one serial earlier. If the contention of the complainant is accepted, then it is very difficult to digest the fact that the accused issued a subsequent cheque earlier and the cheque bearing the earlier serial number was issued in the year 2016, as admittedly the cheque bearing at serial No.869164 was issued in the year 2008 itself. Apart from that, the complainant specifically asserts that except this present transaction, he had no other financial transactions with the
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 accused. In that event, he did not explain as to why the cheque bearing No. 869164 was issued in the year 2008. 18. The accused has placed reliance on Ex.D2, and the learned counsel for the complainant invites the attention regarding material corrections made in Ex.D2. Even if Ex.D2 dated 20.12.2008 is ignored, there is no explanation as regards Ex.D6 which is a certificate issued by Karnataka Bank Ltd, wherein, it is specifically asserted that on 21.12.2008 a letter was received for stop payment pertaining to cheque Nos.829163 and 829164. The evidence on record discloses that the complainant has not approached the Court with clean hands. Looking to this conduct of the complainant and his admissions, the defence raised by the accused is more probable and as such, the presumption available in favour of the complainant under Section 139 of the N.I.Act stands rebutted.
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 19. The complainant in such event of the matter, is required to prove his financial status and his capacity to pay the amount, but no such evidence is forthcoming. 20. Learned Magistrate appreciated all these facts and circumstances in proper prospective and has rightly acquitted the accused for the offence punishable under Section 138 of the N.I.Act. The complainant is required to prove his case beyond all the reasonable doubt, but the accused is required to prove his defence only on the basis of preponderance of probability. In the instant case, the accused/respondent herein has discharged the said burden and hence, the complainant has failed to prove the fact that the cheque was issued towards legally enforceable debt, but the defence of the accused that, the cheque was issued in the year 2008 appears to be more probable. Looking to these facts and circumstances, the complainant/appellant has failed to substantiate his claim.
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CRL.A No. 158 of 2018 NC: 2023:KHC:43626 As such, the point under consideration is answered in the negative. Accordingly, I proceed to pass the following: ORDER The appeal stands dismissed. Sd/- JUDGE URN List No.: 1 Sl No.: 13 CT: BHK