IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 5^TH DAY OF JULY 2019

BEFORE

THE HON’BLE MR.JUSTICE B.A.PATIL

CRIMINAL APPEAL NO.2887/2010

BETWEEN:

SMT. SEEMA

D/O. VASANT KHANVILAKAR,

(W/O. DINKAR KUMAR)

AGE: MAJOR, OCC: HOUSEHOLD WORK,

VIJAY NAGAR, III CROSS,

HINDALGA, BELAGAVI.

... APPELLANT

(BY SRI. M. B. GUNDAWADE, ADVOCATE)

AND:

MISS. SHABANA M. JAMADAR,

AGE: MAJOR, OCC: PVT. SERVICE,

R/O GHATGE BUILDING, OPP. OMKAR

VIJAYNAGAR, III CROSS, HINDALGA,

BELAGAVI.

... RESPONDENT

(BY SRI. SANJAY S. KATAGERI, ADVOCATE)

---

THIS CRIMINAL APPEAL IS FILED U/S 378(4)CR.P.C.

SEEKING TO SET ASIDE THE ORDER OF ACQUITTAL PASSED

BY THE COURT OF THE II ADDL. CIVIL JUDGE AND JMFC,

BELGAUM

DATED

14.10.2010

PASSED

IN

THE

CASE

C.C.NO.1977/2009.

THIS APPEAL COMING ON FOR HEARING THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

: 2 :

JUDGEMENT

The present appeal has been preferred by the

appellant/complainant being aggrieved by the judgment

of acquittal passed by the II Addl. Civil Judge and

JMFC,

Belagavi

in

C.C.No.1977/2009

dated

14.10.2010.

2.

I have heard the learned counsel for the

appellant/complainant and the learned counsel for the

respondent/accused.

3.

The gist of the complaint as per the case of

the complainant is that, in the month of August 2003,

accused approached him for hand loan of Rs.50,000/-

for filling tender of Air Force Station, Sambra. The

complainant gave loan of Rs.40,000/- i.e., Rs.30,000/-

by way of cash and Rs.10,000/- by cheque. It is further

case of the complainant that the complainant was

dealing with dress materials. Accused purchased dress

material worth Rs.35,000/- and as on the date, the

: 3 :

accused was owing a debt of Rs.75,000/- to the

complainant. In the month of January, 2005, accused

repaid Rs.10,000/- to the complainant by issuing a

demand draft, but failed to repay the remaining amount

of Rs.65,000/- and on 05.07.2005, accused issued

cheque bearing No.140314 for a sum of Rs.65,000/-

drawn on Union Bank of India, Kadolkar Galli, Belagavi.

When the said cheque was presented for collection

through the Canara Bank, the said cheque was

dishonoured on 16.01.2006 with the shara ‘insufficient

funds’. The said fact was brought to the notice of the

accused, in spite of which the accused did not pay the

cheque amount. Notice was served on accused on

15.02.2006. In spite of service of notice, accused did

not pay and as such, a complaint was filed under

Section 138 of N.I. Act. Thereafter the Court below took

cognizance and secured the presence of the accused.

Thereafter the complainant came to be examined as

PW1 and got marked Exs. P1 to P8 and thereafter

: 4 :

accused came to be examined as DW1 and got marked

Exs.D1 to D12. After hearing the learned counsel, the

complaint filed came to be dismissed. Being aggrieved

by the same, the complainant is before this Court.

4.

It is the submission of the learned counsel

for the appellant/complainant that the Court below

without considering the facts and circumstances of the

case has come to a wrong conclusion and has falsely

dismissed the complaint. It is his further contention

that, in the evidence of the accused, she has admitted

the fact that she has issued the cheque, but the said

cheque has been issued when a criminal complaint was

pending as against her filed by the sister of the

complainant. It is his further contention that the Court

below has come to a wrong conclusion that there was no

legally recoverable debt and even though the cheque at

Ex.P1 was containing the date 05.07.2005, only

because a dot has been found in the cheque, it has

doubted the case of the complainant and ultimately

: 5 :

dismissed the same. There are no good grounds to

dismiss the complaint. On these grounds he prayed to

allow the petition and to convict the accused in

accordance with law.