Criminal Appeal No. 1103 of 2013 · The High Court
Case Details
- 1 - NC: 2025:KHC:2817 CRL.A No. 1103 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 1103 OF 2013 BETWEEN: SRI M CHANDRU AGED ABOUT 51 YEARS S/O K MADEGOWDA RESIDING AT ARKESWARA NAGAR GUTHUL, MANDYA - 571 401. (BY SRI APPAIAH P B, ADVOCATE – V.C) AND: SRI ANJANA MURTHY AGED ABOUT 37 YEARS SON OF LATE KEMPAIAH OCC:CIVIL POLICE CONSTABLE HAVING HIS ADDRESS AT FINGERPRINT BUREAU DISTRICT POLICE UNIT, OFFICE OF THE SUPERINTENDENT OF POLICE MANDYA - 571 401. (BY SRI R PRAMOD, ADVOCATE) …APPELLANT …RESPONDENT THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED 21.10.2013 PASSED BY THE PRL. C.J. AND J.M.F.C., MANDYA IN C.C.No.423/2009 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE 138 OF N.I.ACT AND ETC., Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:2817 CRL.A No. 1103 of 2013 THIS APPEAL COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT 1. This appeal is filed by the complainant challenging the judgment of acquittal dated 21.10.2013 passed in C.C. No. 423/2009 by the Principal Civil Judge and JMFC, Mandya whereunder the respondent - accused has been acquitted for offence under Section 138 of the Negotiable Instruments Act (hereinafter for the sake of brevity referred to as the `N.I. Act’). 2.
Legal Reasoning
Brief facts of the complainant’s case is, that the respondent - accused for his necessity had borrowed loan of Rs.1,20,000/- on 12.02.2008 and agreed to repay the same within 2 months. The respondent - accused had issued cheque bearing No. 608153 dated 23.04.2008 drawn on Punjab National Bank, Mandya, for Rs.1,20,000/-. The complainant presented the said cheque for encashment and it came to be dishonoured for want of funds. The complainant got issued legal notice dated 03.05.2008 - 3 - NC: 2025:KHC:2817 CRL.A No. 1103 of 2013 demanding payment of cheuqe amount. Said notice has been served on the respondent - accused. The respondent - accused did not pay the cheque amount. Therefore, the complainant presented private complaint against the respondent – accused for offence under Section 138 of N.I. Act. Learned Magistrate has taken cognizance and registered C.C. No. 423/2009 against the respondent - accused for offence under Section 138 of N.I. Act. The plea of the respondent - accused has been recorded. The complainant in order to prove his case has examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.5. Statement of the accused has been recorded under Section 313 of Cr.P.C. The respondent - accused examined himself as D.W.1 and got marked one document as Ex.D.1. Learned Magistrate after hearing arguments on both sides formulated points for consideration and passed the impugned judgment of acquittal. Said judgment of acquittal has been challenged by the complainant in this appeal. 3. Heard learned counsel for appellant –
Legal Reasoning
complainant and learned counsel for respondent – accused. - 4 - NC: 2025:KHC:2817 CRL.A No. 1103 of 2013 4. Learned counsel for appellant would contend that the respondent - accused has admitted his signature on the cheque - Ex.P.1 and therefore, a presumption under Section 139 of the N.I. Act requires to be raised. He further submits that the contradictions in the notice produced by the complainant at Ex.P.3 and notice received by the respondent - accused and produced by him at Ex.D.1 are not material contradictions. With this he prayed to allow the appeal and convict the respondent - accused for offence under Section 138 of the N.I. Act. 5. Learned counsel for respondent - accused would contend that in the notice received by the respondent - accused there is a mention that the respondent - accused had borrowed a sum of Rs.1,25,000/- and to make payment of this amount borrowed he had issued cheque for Rs.1,25,000/-. He further submits that as per the averments of the complaint the amount borrowed is Rs.1,20,000/- and the cheuqe is issued for Rs.1,20,000/-. In the notice Ex.P.3 there is an alteration in the amount of borrowing and amount of the cheque. He submits that - 5 - NC: 2025:KHC:2817 CRL.A No. 1103 of 2013 considering the said aspect there is no notice of demand of actual amount of the cheque and actual amount due. Therefore, there is no compliance of proviso (b) of Section 138 of the N.I. Act. Considering the said aspect learned Magistrate has rightly acquitted the respondent - accused. With this he prayed for dismissal of the appeal. 6. Having heard the learned counsel for the parties and on perusal of the impugned judgment of acquittal and trial Court records the following point arises for consideration in this appeal. “Whether the learned Magistrate has erred in acquitting the respondent - accused for offence under Section 138 of the N.I. Act?” 7. My answer to the above question is in the negative for the following reasons: It is the case of the complainant that he has lent Rs.1,20,000/- to the respondent - accused and respondent - accused in order to repay the said loan amount has issued cheque – Ex.P.1 for Rs.1,20,000/- and it came to - 6 - NC: 2025:KHC:2817 CRL.A No. 1103 of 2013 be dishonoured for want of funds. The complainant has issued notice as per Ex.P.3 to the respondent - accused. The respondent - accused has produced notice received by him at Ex.D.1. On comparison of both Ex.P.3 and Ex.D.1 the amount of borrowing and the cheque amount are different and there is overwriting in the amount borrowed and cheque amount in Ex.P.3 – notice. In Ex.P.3 – notice, amount borrowed and cheque amount is Rs.1,20,000/- and in Ex.D.1 notice the amount borrowed is Rs.1,25,000/- and cheque amount is Rs.1,25,000/-. In the notice Ex.D.1 the complainant has demanded excess amount than the amount due and cheque amount. In Ex.D.1 there is no mention that excess demand is towards interest and cost. Considering the said aspect it is clear that what is demanded under notice Ex.D.1 is not amount borrowed and not amount of the cheque. As per Ex.P.1 – cheque the amount of cheque is Rs.1,20,000/-. Considering the said aspect it is clear that the amount demanded in Ex.D.1 – notice and cheque amount are different. Considering the said aspect learned Magistrate - 7 - NC: 2025:KHC:2817 CRL.A No. 1103 of 2013 has rightly held that the appellant – complainant has failed to prove that the respondent - accused has committed offence under Section 138 of the N.I. Act. There are no grounds made out for allowing the appeal and setting aside the impugned judgment of acquittal. 8.
Decision
In the result, the appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE LRS List No.: 1 Sl No.: 52