2023 Supreme(Online)(KAR) 19714
- 1 -
CRL.A No. 100191 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100191 OF 2018
BETWEEN:
CHARANJIT SINGH ANAND
S/O. SWINDER SINGH ANAND
AGE: 45 YEARS, OCC: BUSINESS,
R/O: AMRIT VILLA, 4TH CROSS,
DESHPANDE NAGAR,
HUBBALLI-580029.
…APPELLANT
(BY SMT. SEEMA NAIK, ADVOCATE)
AND:
MALLIKARJUN S/O. NINGAPPA GORAVI
AGE: MAJOR, OCC: BUISNESS,
H.NO.313, RENUKA NAGAR,
GOKUL ROAD, HUBBALLI-580030.
…RESPONDENT
(BY SHRI DINESH M. KULKARNI, ADVOCATE)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C., PRAYING TO CALL FOR RECORDS IN
C.C.NO.1308/2012 ON THE FILE OF HON’BLE PRINCIPAL CIVIL
JUDGE AND JMFC, COURT HUBBALLI AND TO SET ASIDE THE
JUDGEMENT AND ORDER OF ACQUITTAL DATED 13.06.2018
AND CONVICT THE RESPONDENT/ ACCUSED FOR THE OFFENCE
PUNISHABLE
UNDER
SECTION
138
OF
NEGOTIABLE
INSTRUMENT ACT.
J
MAMATHA
Digitally signed
by J MAMATHA
Location: HIGH
COURT OF
KARNATAKA,
DHARWAD
BENCH,
DHARWAD.
Date: 2023.04.13
16:48:50 +0530
- 2 -
CRL.A No. 100191 of 2018
THIS APPEAL COMING ON FOR FURTHER HEARING AND
THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.03.2023, THIS DAY, THE COURT, DELIVERED
THE FOLLOWING:
Appellant/complainant feeling aggrieved by judgment of
acquittal passed by Prl. Civil Judge and JMFC, Hubballi, in
C.C.No.1308/2012 dated 13.06.2018 preferred this appeal.
2.
The trial Court by its judgment dated 30.12.2015
convicted the accused and imposed sentence as per order of
sentence. Accused feeling aggrieved by the said judgment of
conviction and order of sentence preferred appeal before the
first Appellate court in Crl.A.No.17/2016. The first Appellate
Court by its judgment dated 27.01.2018 allowed the appeal in
part and remanded the case to trial Court to re-examine the
documents Exs.P.5, 12 and 13 and also for ascertaining
compensation. It is after remand the trial Court by impugned
judgment acquitted the case.
3.
Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
4.
The
factual
matrix
leading
to
the
case
of
prosecution can be stated in nutshell to the effect that
- 3 -
complainant is a proprietor of Karnataka Automotive situated at
Harbachan complex, Deshpande nagar, Hubballi, being the sole
distributor for Bharat Springs. Accused is known to complainant
being the businessman and good friend. Complainant in order
to help his friend-accused, from time to time has advanced loan
of Rs.14 lakhs. Accused in discharge of the said debt issued two
cheques of Rs.7 lakhs each bearing Nos.944978 and 944980
drawn on Vijaya Bank, S.M.E., Gokul road, Hubballi. The said
cheques when presented for encashment were returned with
endorsement ‘opening balance insufficient’ vide bank memo
dated 16.10.2012. Complainant issued demand notice dated
15.11.2012 and the accused did not deliberately receive the
notice which was returned as ‘not claimed’. Therefore,
complainant has filed complaint for taking appropriate legal
action against the accused.
5.
In response to the summons, accused has appeared
through counsel and contested the case. Complainant in order
to prove his case relied on the evidence of PW-1 and
documents Ex.P.1 to Ex.P.13. Accused relied on his own
evidence as DW-1 and no any documents were marked on his
behalf. The trial Court after having heard arguments of both
- 4 -
side and on appreciation of evidence on record has acquitted
the accused by judgment dated 13.06.2018.
6.
Appellant/complainant has challenged correctness
and legality of the judgment of acquittal passed by trial Court
contending that trial Court has committed serious error in
holding that Ex.P.5 is insufficiently stamped under Section 33 of
the Karnataka Stamp Act and the same is liable to be
impounded. The trial Court has also recorded improper
reasonings in holding that complaint is not maintainable
without impleading proprietorship concern as party to the
proceedings. The trial Court inspite of the documents Exs.P.5,
12 and 13 were being marked without any objection, has
committed serious error in holding that complainant has failed
to prove source of income to advance loan of Rs.14 lakhs to the
accused.
The
approach
and
appreciation
of
oral
and
documentary evidence by trial Court cannot be legally
sustained. Therefore, prayed for allowing the appeal and to set
aside the order of the trial Court. Consequently, to convict the
accused for the offence punishable under Section 138 of the
Negotiable Instruments Act (for short ‘the N.I.Act’).
- 5 -
7.
In response to notice of appeal, accused appeared
through counsel. Heard the arguments of both sides.
8.
On careful perusal of oral and documentary
evidence placed on record by the parties, it would go to show
that accused in lawful discharge of duty issued two cheques
dated 06.05.2012 bearing Nos.944978 and 944980 for
Rs.7 lakhs each, drawn on Vijaya Bank, S.M.E., Gokul road,
Hubballi, Ex.P.1 and Ex.P.2. The said cheques were presented
by complainant through his banker SBM, Deshpande nagar,
Hubballi, in October, 2012. The said cheques were dishonoured
vide bank endorsement ‘opening balance insufficient’ dated
16.10.20