Criminal Appeal No. 933 of 2023 · The High Court
Case Details
- 1 - NC: 2025:KHC:12275 CRL.A No. 933 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO. 933 OF 2023 BETWEEN: 1. SMT. VANAJAKSHI W/O. VASU POOJARI, AGED ABOUT 60 YEARS, PROPRIETOR, M/S. VIGNESH FINANCE (REGD), KUNIL CENTRE, HAMPANAKATTA, REP. BY GPA HOLDER DHANAPAL, S/O. NARAYANA K. SALIAN, AGED ABOUT 51 YEARS, R/O. CHENNAMMA NIVAS, CHITRAPU VILLAGE, MULKI, MANGALURU TALUK, D.K. DISTRICT-574 103. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA AND: (BY SRI. K. RAVISHANKAR, ADVOCATE) …APPELLANT 1. MR. VITTAL RAVALAPPANAVAR S/O. SHIVAPRUTHRAN, AGED ABOUT 45 YEARS, R/AT NO.118/1, KARAGINAKOPPA, MUDAGOD TALUK, UTTARA KANNADA DISTRICT-581 349. (RESPONDENT SERVED AND UNREPRESENTED [ABSENT]) …RESPONDENT - 2 - NC: 2025:KHC:12275 CRL.A No. 933 of 2023 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 10.02.2023 PASSED IN C.C.NO.4178/2019 PASSED BY THE IV COURT, MANGALURU D.K. FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE INSTURMENTS ACT AND ALLOW THE COMPLAINT AS PRAYED. JMFC THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. Heard the learned counsel for the appellant and the respondent inspite of service of notice, did not chose to appear. 2. This appeal is filed against the order of acquittal passed by the Trial Court in C.C.No.4178/2019 vide order dated 10.02.2023 on file of IV Court Mangalore, D.K for the offence punishable under Section 138 of N.I Act. 3. The factual matrix of case of complainant while invoking Section 200 of Cr.P.C for filing complaint for the offence punishable under Section 138 of N.I Act. It is contended that complainant company dealing with the finance transactions. The accused is the borrower of hand loan from the complainant for the loan amount of - 3 - NC: 2025:KHC:12275 CRL.A No. 933 of 2023 Rs.2,00,000/- from the complainant on 31.03.2018 undertaking to repay the same with interest within the stipulated time. The accused also assured the complainant that he would repay the said loan within the time. After repeated requests the accused had issued a cheuque bearing No.000498 dated 10.12.2018 for Rs.2,21,000/- drawn in favour of the complainant. When the complainant have presented the said Cheque was dishonored and returned with an endorsement “Funds Insufficient” on 11.12.2018. The complainant got issued the notice against the accused and accused having served with the notice, no reply was given and also not made any payment. Hence, complainant was filed and Trial Court taken the cognizance and accused was secured before the Trial Court and accused did not plead guilty and hence, complainant was examined as PW1 and got marked Ex.P1 to Ex.P11. The complainant was cross-examined and thereafter the accused was also examined under Section 313 of Cr.P.C but not lead any evidence before the Trial Court and Trial Court having considered the material on - 4 - NC: 2025:KHC:12275 CRL.A No. 933 of 2023 record, comes to the conclusion that no dispute with regard to the issuance of the Cheque but defense was taken that Cheque was issued as security, but in paragraph No.14 made an observation that as admitted by PW1, no documents are produced by them to prove the existence of Ex.P1 Cheque amount as on the date of Cheque. That apart Court may presumes that they had obtained the document from the accused as security at the time of lending of loan. Hence, the burden is on the complainant to prove the existence of Ex.P1 Cheque amount. The complainant have not whispered anything in respect of said Ex.P1 amount has not been properly explained and also given the reasons that the contents of the documents are in different ink and the same can be clearly visible to the naked eye and undoubtedly made on different date and time and relied upon the earlier judgment of ILR 2014 KAR 6572 in case of H.Manjunath V/s A.M.Basavaraju wherein it was held that absence of material partiulars of the transaction in the complaint-except signature all other entries are in different - 5 - NC: 2025:KHC:12275 CRL.A No. 933 of 2023 handwriting, different ink and undoubtedly made at different time-mentioning of merely the date of issuance of Cheque without any material particular- held, judgment of acquittal is justified. The counsel referring this observation would vehemently contend that the Trial Court committed an error in coming to such a conclusion that Section 20 of Negotiable Instruments Act is very clear that Cheque was signed and admittedly, issuance of the same, burden is on the accused to prove that there was no debt or liability rebutting the evidence of the complainant and the same has not been done and committed an error in passing such an order. 4. Having heard the appellant’s counsel and also records are received and having perused the evidence of PW1 and cross-examination wherein re-iterated the contents of the complaint and relied upon the document of Cheque Ex.P1 and signature and documents have been placed on record regarding transaction and having considered the same, the counsel would contend that this document establishes the transaction between the - 6 - NC: 2025:KHC:12275 CRL.A No. 933 of 2023 complainant and the accused and the same has been ignored by the Trial Court. Having considered the grounds urged in the appeal as well as on perusal of documentary evidence, the point that would arise for consideration of this Court are: 1) Whether the Trial Court committed an error in coming to the conclusion that Cheque was issued for security and the same is in different ink and the same cannot be relied upon and such finding is erroneous and whether this Court can exercise appellate jurisdiction? 2) What Order? 5. Having heard the appellant’s counsel and also on perusal of complaint filed before the Trial Court, specific averment made in the complaint that complainant is engaged in the business of finance and accused had approached the complainant and obtained the loan of Rs.2,00,000/- from the complainant on 31.03.2018 undertaking to repay the same with interest and also executed on demand promissory note in terms of Ex.P7 - 7 - NC: 2025:KHC:12275 CRL.A No. 933 of 2023 and also on demand issued the subject matter of Cheque which is marked as Ex.P1. The accused also not disputes the signature available in the Ex.P1 and notice was also issued and the same has been served and for having served the notice, Ex.P5 postal acknowledgment is produced before the Court. 6. It is also important to note that loan application is also filed and marked as Ex.P6. The Ex.P7 promissory note is also dated 31.03.2018 which establishes execution of Ex.P7 and defense was taken that the Cheque was issued towards security and when the loan document discloses that on the date of availing the loan, application was given by the accused as per Ex.P6 and also the promissory note executed on the very same day as per Ex.P7 and also specific case of complainant that on demand of repayment of amount only the Cheque Ex.P1 was given towards the discharge of liability on 10.12.2018. The Trial Court having accepted the defense of accused that the same was issued towards security Cheque which was given, complainant has to prove the same. When the - 8 - NC: 2025:KHC:12275 CRL.A No. 933 of 2023 complainant proved the very availment of loan by placing on record, Ex.P6 and Ex.P7 promissory note and issuance of Cheque as per Ex.P1 and also the endorsement for having received the amount of Rs.2,00,000/-, Ex.P8 is also placed on record. The very approach of the Trial Court is erroneous in coming to such a conclusion that Cheque might have been issued toward the security and fails to consider the documents which have been placed by the complainant for having transacted with the complainant by the accused execution of loan application, promissory note and also receipt of Rs.2,00,000/-, acknowledging the same from the complainant as well as Cheque was issued and no doubt when the Ex.P1 signature is in different ink, contents are in different ink and the same cannot be a ground to comes to a other conclusion and the judgment which has been relied upon is of 2014 and no relevance in view of recent judgment of the Apex Court and Apex Court held that once the Cheque was issued, authorizing the holder of the Cheque to fill up the same, the burden is on the accused to place on record, probable defense, but in - 9 - NC: 2025:KHC:12275 CRL.A No. 933 of 2023 the case on hand, when 313 statement was recorded by the Trial Court except stating that he would lead the defense evidence and denying the entire case of complainant, no explanation. Apart from that even not led any defense evidence also and Trial Court committed an error in when the complainant proved the case that loan application was given and thereafter executed the document, even no reply was given when the notice was given and the same was served on the accused. In the absence of rebuttal evidence and not rising any probable case, committed an error in acquitting the accused and hence, the reasoning given by the Trial Court is erroneous and it requires interference of this Court. Hence, I answer the point as ‘Negative’. 7. In view of the discussions made above, I pass the following:
Decision
ORDER i) The Criminal Appeal is allowed. - 10 - NC: 2025:KHC:12275 CRL.A No. 933 of 2023 ii) The impugned judgment passed by the Trial Court in C.C.No.4178/2019 vide order dated 10.02.2023 on file of IV Court Mangalore, D.K is set-aside. iii) The accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and directed to pay fine amount of Rs.3,00,000/-(Rupees Three Lakhs only) and if appellant fails to pay the amount within two months from today, he shall undergo sentence for a period of six months. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 39