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NC: 2024:KHC-D:5658 CRL.A No. 100035 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF MARCH, 2024 BEFORE THE HON'BLE MR JUSTICE UMESH M ADIGA CRIMINAL APPEAL NO.100035 OF 2016 (A) BETWEEN:
SRI MOHAMMED AQDES S/O. MOHAMMED AMIN, AGED 30 YEARS, R/O: MOULANA AZAD ROAD, KIDWAI CROSS, BHATKAL TALUK, UTTARA KANNADA DISTRICT. …APPELLANT
(BY SRI AFAQUE KOLA, ADVOCATE FOR PETITIONER-ABSENT)
AND:
SRI SYED ABDULLA FARHAN, S/O. SYED MEERAN BAFAQUIE, AGED ABOUT 26 YEARS, R/O: DAMU JALI, JALI VILLAGE, NOW RESIDING AT HANEEFABAD, NERLESAR, HEBLE VILLAGE, BHATKAL TALUK, UTTARA KANNADA DISTRICT. …RESPONDENT (BY SRI R.H. ANGADI, ADVOCATE)
THE CRIMINAL APPEAL IS FILED U/S 378 (4) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER DATED 28/10/2015 PASSED BY THE HON'BLE PRINCIPAL CIVIL JUDGE AND JMFC AT BHATKAL IN C.C.NO.847/2013 AND CONVICT THE ACCUSED/ RESPONDENT FOR THE OFFENCE PUNISHABLE U/S 138 AND 142 OF NEGOTIABLE INSTRUMENT ACT.
THIS CRIMINAL APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Digitally signed by SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA
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NC: 2024:KHC-D:5658 CRL.A No. 100035 of 2016
JUDGMENT
This appeal is by the complainant in Criminal Case No.847/2013 on the file of Principal Civil Judge and J.M.F.C., Bhatkal (for short, the Trial Court’) challenging Judgment of acquittal of accused dated 28.10.2015 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’).
For the sake of convenience, the parties herein are referred to as per their rank before the Trial Court.
It is the case of the appellant/complainant that the accused borrowed a sum of Rs.20,00,000/- from him on 29.08.2012 by executing an on Demand Promissory Note dated 29.08.2012. The accused in part payment of the said debt, has issued cheques bearing Nos.001068, 001069, 001072, 001073, 001074 and 0010775 of Federal Bank, Bhatkal branch each for Rs.2,50,000/- dated 25.08.2013, 30.08.2013 and 03.09.2013 respectively. The complainant had presented the said cheques for encashment through his baker, all the said cheques were dishonoured on the ground of “insufficient funds” vide memo of Bank dated 03.09.2013.
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NC: 2024:KHC-D:5658 CRL.A No. 100035 of 2016
It is further case of the complainant that he issued notice dated 05.09.2013 to the accused calling upon him to repay the amount of cheques within prescribed period. The notice was received by the accused; however he did not repay the amount of cheques. Therefore, he filed a complaint before the JMFC Court, Bhatkal in Private Complaint No.167/2013.
The learned Magistrate took cognizance of the case and recorded the sworn statement of the complainant. Thereafter, considering the sworn statement and documents produced by the complainant, the learned Trial Judge has issued process to the accused.
Accused appeared before the Trial Court and he has pleaded not guilty.
The complainant to prove his case examined himself as P.W.1 and got marked Ex.P.1 to 18 and closed his evidence. The learned trial Judge examined accused under Section 313 of Cr.P.C. and his answers were recorded. The accused did not offer defence evidence.
The trial Judge, after hearing both parties and after appreciating evidence on record, held that the complainant was unable to prove the guilt of the accused beyond reasonable
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NC: 2024:KHC-D:5658 CRL.A No. 100035 of 2016
doubt and hence accused was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Being aggrieved by the impugned Judgment of acquittal passed by the Trial Court, the complainant has challenged the same in the present appeal.
Inspite of offering sufficient opportunity, complainant did not argue. Learned advocate for accused is present and his argument is heard. 10. Learned counsel for respondent/accused urged following points : * There is no legal evidence to prove that the said five cheques were given by the accused to discharge alleged debt of Rs.20,00,000/-. * The complainant failed to prove that he had sufficient source to pay Rs.20,00,000/- to the accused, as loan. * Purpose for which the loan was given is not consistent. * Source of income to pay the debt to the accused is not consistent. * In the cross-examination of P.W.1, the accused has rebutted the case of complainant under Sections 118 and 139 of the NI Act. Therefore, non
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NC: 2024:KHC-D:5658 CRL.A No. 100035 of 2016
examination of the accused in this case is not fatal to his defence. * The accused admitted that he has received Rs.2,00,000/- from the complainant and issued five signed blank cheques as security to the said amount obtained from the complainant; that was brought out in the cross-examination of P.W.1. These materials were considered by the Trial Court and rightly acquitted the accused.
Learned counsel for the respondent/accused further submits that when an accused is acquitted of an offence by the Trial Court, for reversing of the said Judgment by the appellate Court, there should be strong evidences against accused, which were not considered by the Trial Court or the orders of the trial Court, is perverse, capricious or arbitrary. In the absence of the same, normally appellate Court shall not interfere in the findings of the trial Court. If two views are possible from the evidence produced by the prosecution, views of trial Court needs to be accepted unless the said view is perverse of illegal. There are no grounds to interfere. Hence, prayed for dismissal of appeal.
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NC: 2024:KHC-D:5658 CRL.A No. 100035 of 2016
It is trite law that heavy burden is on the complainant to prove his case. In the complaint, filed under Section 200 of the Cr.P.C., the complainant has stated that he has given Rs.20,00,000/- as hand loan to the accused. In his examination-in-chief, very same fact is mentioned in paragraph No.2 of the affidavit filed in lieu of the evidence. In the cross- examination, he has stated that he paid Rs.20,00,000/- to the accused regarding purchase of the landed property. The said fact is neither mentioned in the complaint nor in Ex.P.18. There is no explanation for the said inconsistency. 13. In the affidavit filed in lieu of evidence, it is stated that he paid Rs.20,00,000/- as hand loan. As per his case cheques were issued to pay Rs.15,00,000/- and no evidence placed on record regarding balance of Rs.5,00,000/- which was alleged to be due from the accused. 14. P.W.1 in his cross-examination has stated that he has a small cosmetic shop at Bhatkal and its dimension was 10 X 10 feet. He pleads ignorance regarding turnover made in his shop. He also pleads ignorance regarding registration No.CST and KST. But he says that he is paying Sales Tax to the Government and he was not paying any Income Tax. He further
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NC: 2024:KHC-D:5658 CRL.A No. 100035 of 2016
says that he know the accused from 6 to 7 years prior to the transaction. However, he says that he paid Rs.20,00,000/- to the accused without any other documents, to prove it. Admittedly, there is no agreement of sale executed in his favour by the accused and no further correspondence in this regard between them. The amount is said to be paid in cash. All these facts create serious doubt in the case of complainant. 15. Regarding source of income, evidence of P.W.1 is not consistent. He says that he obtained loan from his uncle and later on he says that he withdrew Rs.18,00,000/- from his bank account and paid to accused. He further says that for balance amount, he issued cheque for Rs.2,00,000/- to the accused. According to the provision of Income Tax Rules, any payment made beyond Rs.20,000/-, shall be in the form of cheque or electronic payment. In this case, PW-1 has stated that he paid loan amount of Rs.18,00,000/- in cash. He did not explain the reason to pay the amount in cash. In his further cross- examination, he has stated that he paid Rs.2,00,000/- to the accused through self cheque and Rs.18,00,000/- by cash. In the next breath, he says that he paid Rs.18,00,000/- to the accused through the cheque. Once again he says that he has
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NC: 2024:KHC-D:5658 CRL.A No. 100035 of 2016
not withdrawn Rs.18,00,000/- from his account. Therefore, evidence of P.W.1 regarding source of his income to pay the debt to the accused and mode of payments are not consistent. On scanning of entire evidence of P.W.1, it is full of inconsistencies. Hence entire transactions stated by him appear to be suspicious. Evidence of P.W.1 is not reliable and trustworthy. 16. Complainant has not examined witnesses to prove Ex.P.18. Contents of Ex.P.18 and evidence of P.W.1 are not consistent as discussed above. Hence, it will also not help the case of complainant. 17. The learned trial Judge has considered these aspects elaborately and disbelieved his case. There are no reasons to interfere in the said findings. 18. Accused has not disputed that he had issued cheques to the complainant and they were blank signed cheques. He also admits that he received Rs.2,00,000/- from the complainant and he issued Ex.P.1 to Ex.P.6. Therefore, the accused has explained regarding issue of the cheques. In the cross-examination of P.W.1, the accused has rebutted the
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NC: 2024:KHC-D:5658 CRL.A No. 100035 of 2016
presumption available to complainant under Sections 118 and 139 of the N.I.Act. 19. Findings of the learned trial judge is proper and justifiable and does not call for interference by this Court. 20. As rightly submitted by learned counsel for the respondent, the appellate Court in reversing the Judgment of acquittal, shall be slow and shall consider the facts in detail and if the findings of the trial Judge are perverse, arbitrary, capricious and illegal, then only it shall interfere. No such ground is available to complainant in this case to interfere in the findings of the Trial Court. 21. One the basis of grounds mentioned in the appeal memorandum, the well reasoned Judgment of the Trial Court cannot be interfered. Accordingly, I proceed to pass the following : ORDER (i) Appeal is dismissed. (ii) Send back LCR to the trial Court forthwith along with a copy of this Judgment.
Sd/- JUDGE CKK, CT: UMD List No.: 1 Sl No.: 10