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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ARAVIND KUMAR, J.
Sri.Kailar Mahalinga Bhat, S/o K.P.Subraya Bhat - Appellant
Versus
Mr.Saji Joseph - Respondent
CRIMINAL APPEAL NO.800 OF 2014
Decided On : 13-09-2017
N.I. Act - Dispute over Cheque Issuance - Section 138 of Negotiable Instrument Act, 1881 - 138 - Summary: The court discussed the disputed cheque issuance, the presumption under Section 139 of the N.I. Act, and the rebuttal of the presumption. The court found that the accused failed to prove the repayment of the debt and the authenticity of the receipt, leading to the conviction under Section 138 of the N.I. Act.
Fact of the Case:
The appellant filed a complaint under Section 138 of N.I. Act, alleging that the accused issued a cheque for Rs.3,50,000, which was dishonored. The accused claimed the cheque was for a different transaction and had repaid the debt, supported by a receipt.
Finding of the Court:
The trial court acquitted the accused based on doubts about the loan transaction. The appellate court found the accused failed to prove the repayment and authenticity of the receipt, leading to the conviction under Section 138 of the N.I. Act.
Issues: Dispute over the authenticity of the loan transaction, repayment, and the receipt.
Ratio Decidendi: The accused's failure to prove the repayment and authenticity of the receipt led to the conviction under Section 138 of the N.I. Act.
Final Decision: The appeal was allowed, the judgment of the trial court was set aside, and the accused was convicted under Section 138 of the N.I. Act.
1. Though matter is listed for admission, by consent of learned advocates appearing for both the parties, same has been taken up for final hearing and has heard at length and it is disposed of finally by this following order.
2. This appeal has been filed by the complainant being aggrieved by the judgment passed by Principal Civil Judge, JMFC, Puttur dated 19.08.2014 passed in CC.No.3902/1999 acquitting respondent-accused for offences punishable under Section 138 of Negotiable Instrument Act, 1881 (for short ‘N.I. Act’).
3. Parties are referred to as per the rank in the trial Court. Facts in brief which has led to filing of this appeal are as under:
(a) A complaint came to be lodged by the appellant-complainant under Section 200 of Cr.P.C. alleging thereunder that accused had borrowed a sum of Rs.3,50,000/- from the complainant towards repayment of said amount and as security towards said amount borrowed had issued a cheque for Rs.3,50,000/- drawn on Syndicate Bank, Kadaba Branch in favour of the complainant with an assurance that said cheque would be honoured when presented and yet when said cheque came to be presented for encashment it was returned with an endorsement “insufficient funds” as per memo dated 23.04.1999.
(b) On 05.05.1999, a legal notice came to be issued by the complainant calling upon accused to pay the amount covered under dishonored cheque within the stipulated period and said notice was duly served on accused on 08.05.1999 and it was duly replied by accused through his advocate by denying the averments made in the notice. Hence, alleging that accused had committed an offence punishable under Section 138 of N.I. Act, complaint came to be filed before the jurisdictional Court of Magistrate.
4. After taking cognizance, sworn statement of complainant was recorded and process was issued to accused to appear before Court and on appearance of accused, plea was recorded and on accused pleading not guilty and praying for being tried, matter came to be posted for recording of evidence of the complainant. Accordingly, complainant got himself examined as PW.1 and got marked exhibits P1 to P5. Thereafter, he was cross examined. Later, statement of respondent/accused was recorded under Section 313 and accused also got himself examined as DW.1 and got marked exhibits D1 and D1(a) and closed his side.
5. On appreciation of evidence tendered by the parties and considering the material evidence available on record, trial Court acquitted the respondent-accused for the offence punishable under Section 138 of N.I. Act.
6. Allegations made in the complaint is accused had borrowed a sum of Rs.3,50,000/- from the complainant and towards discharge of said debt, he had issued a cheque for a sum of Rs.3,50,000/- drawn on Syndicate Bank, Kadaba Branch dated 13.04.1999 and on presentation of said cheque, it came to be dishonored. A notice was got issued and had been replied with a total denial.
7. A perusal of judgment passed by trial Court would disclose that on matter being remanded to the trial Court by this Court by order dated 19.02.2014 passed in Crl. A No.367/2009, on account of there being a serious dispute with regard to execution of Ex.D1- receipt dated 12.05.2000 stated to have been executed by the complainant in favour of accused acknowledging discharge of liability under the disputed cheque, complainant sought for Ex.D1 being referred to an expert. Here at the instance of complainant, Ex.D1 came to be referred to an expert for opinion and accordingly, a report came to be submitted by Sri. Shankarappa (PW-2) and it was marked as Ex.C1.
8. Learned trial Judge after taking into consideration said report and deposition of PW.2, who had opined that signature found in Ex.D1, which came to be marked as Ex.D1(a) is that of the complainant and also further opinion of PW.2 which was to the effect that revenue stamp found in Ex.D1 had been lifted from some other document and appears to have been affixed on Ex.D1-receipt, held that
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