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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 12^{t h} DAY OF FEBURARY, 2021

BEFORE

THE HON’BLE MR. JUSTICE P.N.DESAI

CRIMINAL APPEAL NO.2748/2013

BETWEEN:

ONKAR REDDY S/O. HONNURAPPA,

OCC: AGRICULTURE, AGE: 39 YEARS,

R/O: J.P.NAGAR-HOSPET, DIST: BELLARY.

….APPELLANT.

(BY SHRI NEELENDRA D GUNDE, ADV.)

AND:

M.SRINIVAS S/O. M.CHANNAVEERAPPA,

OCC: AGRICULTURE, AGE: MAJOR,

R/O: WEAVERS COLONY, A.C.OFFICE ROAD,

HOSPET, DIST: BELLARY.

….RESPONDENT.

(BY SHRI.A.M.GUNDAWADE FOR

SRI.M.B.GUNDAWADE, ADVS.)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION

378(1) OF CR.P.C., PRAYING TO ALLOW THE CRIMINAL

APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER

OF

ACQUITTAL

DATED

17.07.2013

PASSED

IN

CRL.A.NO.23/2013 PASSED BY THE III ADDL. DISTRICT

AND SESSIONS JUDGE, BELLARY SITTING AT HOSPETH.

THIS APPEAL COMING ON FOR FINAL HEARING THIS

DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

This appeal arises out of the judgment passed

by the learned III Addl. District and Sessions Judge,

Ballary

sitting

at

Hospet

wherein

the

learned

Sessions Judge set aside the judgment of conviction

dated 12.12.2012 passed by the Addl. Civil Judge

and JMFC, Hospet in C.C.No.26/2012.

2. Appellant

was

the

complainant

and

respondent was accused before the trial Court and

they will be referred as such in this appeal for

convenience.

3. Brief case of the complainant before the trial

Court was as under:

Both complainant and accused are known each

other. Accused borrowed sum of Rs.5,00,000/- as

hand loan to meet his urgent agricultural and house

hold

expenses

from

the

complainant.

Accused

promised to return the said amount within two

months. On the same date, accused issued post-

dated cheque bearing No.257220 for a sum of

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Rs.5,00,000/- dated 08.08.2011 drawn on Vikas

Souharda

Co-operative

Bank

Ltd.,

Hospet.

Complainant

presented

the

said

cheque

for

encashment, the said cheque was returned with an

endorsement for the reason “insufficient funds”. In

this regard, the complainant issued statutory notice

on 29.08.2011 to the accused calling upon him to

repay the cheque amount. The said notice served on

the accused. The accused neither replied the notice

nor repaid the cheque amount. Hence, Complainant

filed the complaint before the Addl. Civil Judge and

JMFC, Hospet. with a prayer to punish accused under

Section 138 of Negotiable Instrument Act, 1881.

4. The learned JMFC took cognizance, recorded

the plea of the accused. Complainant got examined

himself as PW.1 and got marked four documents as

Exs.P1 to P4. The accused did not adduce any

defence evidence. After hearing the arguments, the

learned JMFC convicted the accused by judgment

dated 12.12.2012 and sentenced the accused to pay

sum of Rs.5,05,000/- in default of payment of fine

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the accused shall undergo simple imprisonment for

two years.

5. Aggrieved by the same the accused preferred

Crl.A.No.23/2013 before the III Addl. District and

Sessions

Judge,

Ballary

sitting

at

Hospet.

The

learned Sessions Judge though confirmed the finding

of the learned JMFC regarding proof of borrowing of

the loan by the accused and issuance of cheque but

set aside the conviction judgment by allowing the

appeal, on the ground that the service of statutory

notice

was

not

proper

as

it

was

not

served

personally on the accused. The complainant has

assailed the said judgment of acquittal before this

Court.

6. Heard

Sri.Neelendra

D

Gunde,

learned

counsel

for

the

appellant/complainant

and

Sri.A.M.Gundawade,

learned

counsel

for

respondent/accused.

7. Learned counsel for the appellant argued

that the learned Sessions Judge has confirmed the

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finding of the trial Court that issuance of cheque and

amount mentioned in the cheque proves that debt

was legally recoverable debt but the finding of the

learned

Se