Criminal Appeal No. 541 of 2017 · The High Court
Case Details
Digitally signed by SWAPNA V Location: high court of karnataka - 1 - NC: 2025:KHC:340 CRL.A No. 541 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 541 OF 2017 (A) BETWEEN: SRI. S. RAGHAVENDRA SHENOY S/O S. RAMESH SHENOY AGED ABOUT 33 YEARS, R/AT SRI. GANESH MILLS NEAR KASHIMUTT, SURATHKAL, MANGALURU TALUK - 575 001. (BY SRI. HALEEMA AMEEN, ADVOCATE) …APPELLANT AND: MR. SRINIVAS SHENOY S/O H. ROHIDAS SHENOY AGED ABOUT 30 YEARS, RESIDING NEAR KABETTU KARKALA TQ - 574 201. (BY SRI. K. CHANDRANATH ARIGA, ADVOCATE) …RESPONDENT THIS CRL.A. IS FILED U/S 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 03.03.2017 PASSED BY THE IV ADDL. DIST. AND S.J., D.K., MANGALORE IN CRL.A.NO.262/2015 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 ON N.I ACT. THIS CRL.A., COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA - 2 - NC: 2025:KHC:340 CRL.A No. 541 of 2017 ORAL JUDGMENT The complainant in C.C.No.5150 of 2012, on the file of the learned JMFC (IV Court), Mangaluru (hereinafter referred to as 'Trial Court') is impugning the judgment of acquittal dated 03.03.2017 passed in Crl.A.No.262 of 2015, on the file of the learned IV Additional District & Sessions Judge, Dakshina
Facts
Kannada, Mangaluru (hereinafter referred to as 'First Appellate Court'), allowing the appeal and acquitting the accused for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'the NI Act') after setting aside the judgment of conviction and order of sentence dated 30.10.2015 passed by the Trial Court. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. Brief facts of the case are that, the complainant filed the private complaint in PCR No. 634 of 2012 before the Trial Court against the accused alleging commission of the offence punishable under Section 138 of NI Act. It alleged that, the accused was carrying on the business of outsourcing IT and - 3 - NC: 2025:KHC:340 CRL.A No. 541 of 2017 IT-enabled services of data entry and other such services under the name and style "Shree Vatsa Infotech". The accused came in contact with the complainant and during the course of business activities, he was entrusted with the work of data entry
Legal Reasoning
entitled for acquittal. But, the position of law is very well settled in view of the decision of the Hon'ble Apex Court in Rangappa Vs Sri Mohan1 where it has referred to its earlier decision in Krishna Janardhan Bhat v/s Dattatraya G. Hegde2, to hold that the presumption under Section 139 of NI Act includes existence of legally enforceable debt. It is for the accused to rebut the presumption to get an acquittal. In the present case, the accused, except taking inconsistent defence, has not taken any probable defence. Therefore, I am of the opinion that the accused has not rebutted the legal presumption under Sections
Arguments
and filling the forms. It was outsourced to the accused by SLA Commercial World Bank Insurance. The complainant in due course has successfully completed the work entrusted to him. 4. It is stated that the complainant and the accused were under mutual understanding that the accused will entrust the work of data entry to the complainant for which, the complainant has purchased the computers and appointed the employees. However, the accused failed to entrust the work after some time, as a result of which, the complainant suffered loss. The loss was quantified at Rs.7,32,660/- and accordingly, the accused issued the cheque bearing No.557154 dated 29.12.2011 towards making good the loss suffered by the complainant. When the cheque was presented for encashment, the same was dishonoured as there was insufficient funds in the account of the accused. The complainant issued the legal notice calling upon the accused to repay the cheque amount. Inspite of service of notice, the accused has neither replied nor repaid the - 4 - NC: 2025:KHC:340 CRL.A No. 541 of 2017 cheque amount. Thereby, he has committed the offence as stated above. Therefore, the complainant requested the Trial Court to take cognizance of the offence and to initiate legal action. 5. The Trial Court took cognizance of the offence and registered C.C.No.5150 of 2012. The accused appeared before the Court and pleaded not guilty. The complainant examined himself as PW1 and got examined PW2, got marked Exs.P1 to 28 in support of his contention. The accused denied all the incriminating materials available on record in his statement recorded under section 313 of Cr.PC. The accused examined himself as DW1 and got marked Exs.D1 to D5 in support of his defence. 6. The Trial Court, after taking into consideration all these materials on record, passed the judgment dated 30.10.2015, convicting the accused for the offence under Section 138 of NI Act, sentencing him to pay fine of Rs.7,40,660/- and in default to pay fine to undergo simple imprisonment for a period of one year. Being aggrieved by the same, the accused has preferred Crl.A.No.262/2015. The First - 5 - NC: 2025:KHC:340 CRL.A No. 541 of 2017 Appellate Court on re-appreciation of the materials on record allowed the appeal, set aside the impugned judgment of conviction passed by the Trial Court and accordingly, acquitted the accused. Being aggrieved by the same, the complainant is before this Court. 7. Heard Smt. Haleema Aman, learned counsel for the appellant and Sri. K Chandramath Ariga, learned counsel for respondent. Perused the materials including the Trial Court records. 8. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: "Whether the impugned judgment of acquittal passed by the First Appellate Court suffers from perversity or illegality and calls for interference by this Court?" My answer to the above point is in the 'Affirmative' and pass the following: 9. It is the specific contention of the complainant that, REASONS the accused had entrusted data entry work to the complainant - 6 - NC: 2025:KHC:340 CRL.A No. 541 of 2017 and also promised to entrust such work. With such understanding, the complainant invested in purchasing the computers and appointed the technicians. However, the accused stopped entrusting the work, which caused loss to the complainant. The loss was quantified at Rs.7,32,660/-. Towards discharge of the same, the accused had issued the cheque as per Ex.P1. The cheque was presented for encashment and the same was dishonoured as there was insufficient funds in the account of the accused. Inspite of service of notice, the cheque amount was not repaid and thereby, committed the offence punishable under Section 138 of NI Act. To prove this contention, the complainant examined himself as PW1. During cross-examination by learned counsel for the accused, no specific defence is suggested to the witness. 10. It is to be noticed that the specific suggestion is put to PW1 that cheque Ex.P1 is not issued by the accused and it does not bear his signature. Since such specific suggestion is made to PW1, the complainant examined PW2 - the Manager of the bank, who stated that the cheque Ex.P1 belongs to the accused and it bears his signature. Admittedly, the cheque was - 7 - NC: 2025:KHC:340 CRL.A No. 541 of 2017 not dishonoured as the signature differs or any such endorsement. 11. The accused after denying all the incriminating materials available on the record, examined himself as DW1. He deposed in his chief examination regarding the business relationship between himself and the complainant. He asserts that, he entrusted data entry work to the complainant, which was executed by him. It is pertinent to note that the accused admits that Ex.P1 - cheque belongs to him and it bears his signature. It is quite contrary to the defence suggested to PW1 that, the cheque does not belong to the bank account of the accused nor it bears his signature. Surprisingly, the accused has taken a defence that the cheque in question was stolen by the complainant. It is also an inconsistent defence taken by the accused when he was examined himself as DW1. But strangely, no such suggestion is made to PW1 that he had stolen the cheque. Admittedly, the accused has not filed any complaint against the complainant that he had stolen the cheque belonging to the accused. - 8 - NC: 2025:KHC:340 CRL.A No. 541 of 2017 12. It is pertinent to note that when the matter was pending before the Trial Court, since DW1 denied issuance of the cheque with his signature, the disputed cheque was referred to the handwriting expert. The report of the handwriting expert discloses that the disputed signature tallies with the admitted signature of the accused. This may be reason as subsequently, when the accused stepped into the witness box, he admits that the cheque belongs to him and it bears his signature. Once the accused admits issuance of the cheque with his signature, presumption under Sections 118 and 139 of NI Act would arise and the initial burden on the complainant gets discharged. The burden shifts on the accused to rebut the legal presumption. As I have already noted, the accused has not suggested any specific defence to PW1, but on the other hand, he has denied issuance of the cheque with his signature, which is subsequently admitted by him. Even when the accused is examined as DW1, he has not taken any specific defence, except stating that the cheque was stolen by the complainant, which cannot be believed. It is not only inconsistent with his defence earlier taken during cross-examination, but, there is no such - 9 - NC: 2025:KHC:340 CRL.A No. 541 of 2017 suggestion to PW1, nor there is any complaint against the complainant in that regard. 13. The tenor of evidence of DW1 and cross examination of PW1 discloses that, the accused is disputing the actual loss caused to the complainant. Learned counsel for the respondent contended that, Section 138 of NI Act refers to issuance of the cheque towards discharge of any debt or other liability and when existence of debt or liability is disputed, the complainant is not entitled for the relief and the accused is
Decision
ORDER (i) The Criminal Appeal is allowed. (ii) The judgment of acquittal dated 03.03.2017 passed in Crl.A.No.262 of 2015, on the file of the learned IV Additional District & Sessions Judge, Dakshina Kannada, Mangaluru is hereby, set aside. (iii) Consequently, the accused is convicted and sentenced for the offence under section 138 NI Act by restoring the judgment of conviction and order of sentence passed by the Trial Court vide judgment dated 30.10.2015 passed in C.C.No.5150 of 2012, on the file of the learned JMFC (IV Court), Mangalore. Send back the Trial Court records along with copy of the judgment for information and needful action i.e., to secure the presence of the accused and to issue conviction warrant. Sd/- (M G UMA) JUDGE SPV List No.: 2 Sl No.: 25