Crl.A.No.1167/2010

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 7^TH DAY OF OCTOBER, 2020

BEFORE

THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

CRIMINAL APPEAL No.1167 OF 2010

BETWEEN:

Sri. M.P. Jayaraj S/o M.P. Puttaswamy,

Aged about 48 years, Occ:Chartered Accountant,

No.1, ‘Divya Nilaya’,

III Cross, Shivanandanagar,

Nagarabhavi Post, Bangalore.

.. APPELLANT

(By Sri Amit Deshpande, Amicus Curiae)

AND:

Sri. B.S.Shivaraj S/o. Siddalingappa,

Aged about 48 years,Occ:Contractor/Dip Engineer,

R/at No.8/1, 11^th Main,

C/o. G.Chnadrashekarai,

Muneshwaraswamy Nilayam,

Shivajinagara,

Bangalore and also at:

Bysooru Village, Aladahally Post,

Mallipattana Hobli, Arakalagudu Taluk,

Hassan District.

.. RESPONDENT

(By Smt. P.V.Kalpana, Amicus Curiae)

Crl.A.No.1167/2010

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***************

This Criminal Appeal is filed under Section 378(4) of

Criminal Procedure Code praying to set aside the judgment

and

order

of

acquittal

dated

21.08.2010

passed

in

C.C.No.5197/2006 on the file of the Learned XV Addl. Chief

Metropolitan Magistrate, Bangalore City, and convict the

respondent/accused for the offence punishable under Section

138

of

Negotiable

Instruments

Act

and

compensate

adequately the appellant/complaint under Section 357 of the

Code of Criminal Procedure, to meet the ends of justice.

This Criminal Appeal having been heard through

Physical

Hearing/Video

Conferencing

and

reserved

on

29.09.2020, coming on for pronouncement of Judgment, this

day, the Court delivered the following:

JUDGMENT

This appeal is filed by the appellant/complainant

praying to set aside the Judgment dated 21.08.2010

passed in C.C. No.5197/2006 by the learned XV Addl.

Chief Metropolitan Magistrate, Bengaluru City (for

brevity, hereinafter referred to as ‘the Trial Court’)

Crl.A.No.1167/2010

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acquitting the accused of the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881(for

brevity, hereinafter referred to as ‘the N.I. Act’) and to

convict the respondent in accordance with law.

2.

The summary of the case of the complainant

in the Trial Court is that the accused had availed a

handloan of `15,00,000/- from the complainant in the

month of April, 2004 in order to cultivate his land and

get a borewell dug in his land situated in his native place

at Arakalgud Taluk, Hassan District. Towards the

repayment of the said amount, accused had issued a

cheque in favour of the complainant for a sum of

`15,00,000/- dated 01.07.2005 bearing No. 616633

drawn on State Bank of India, N.A.L. Branch, Bangalore.

The said cheque came to be dishonoured with the

banker’s endorsement as ‘funds insufficient’ when

presented for realisation by the complainant. Thereafter

the complainant issued a legal notice dated 19.08.2005

Crl.A.No.1167/2010

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to the accused which was sent to him both under

‘registered post acknowledgement due’ and under

‘certificate of posting’, demanding the payment of the

cheque amount from the accused. However, the

accused even after receipt of the notice, failed to pay

the cheque amount which constrained the complainant

to institute a case against the accused in the Trial Court

for the offence punishable under Section 138 of the N.I.

Act.

3.

Trial Court records were called for and the

same are placed before the Court.

4.

In view of the fact that in spite of granting

sufficient opportunities, learned counsels representing

the parties in the matter did not appear either physically

or

through

video

conference

and

address

their

arguments, this Court by its detailed order dated

22.09.2020 appointed amicus curiae one each for the

Crl.A.No.1167/2010

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appellant and the respondent. Learned amicus curiae

on both side are physically present before the Court.

5.

Heard

the

arguments