CRL.A.No.200058/2015

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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 01^ST DAY OF SEPTEMBER, 2021

BEFORE

THE HON’BLE MRS. JUSTICE J.M.KHAZI

CRIMINAL APPEAL No.200058/2015

BETWEEN:

Ram Murthy S/o Anantachar Mathad,

Age: 50 years, Occ: LIC Agent,

R/o Beroon Quilla, Raichur-585401.

… Appellant

(By Sri. Sachin M.Mahajan, Advocate for

Sri. R.S.Sidhapurkar, Advocate)

AND:

Vasudev Vaidhya S/o Krishnachar Vaidhya,

Age: 40 years, Occ: Private Service,

R/o H.No.3-2-223, Near Venugopalswamy Temple

Fort, Raichur-585401.

… Respondent

(By Sri. Arunkumar Amargundappa, Advocate)

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

Cr.P.C. with a prayer to admit the appeal, call for the

records of the trial courts and set aside the judgment and

order dated 17.03.2015 in C.C.No.1721/2012 passed by

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the learned II-Addl. Civil Judge and JMFC-IV, Raichur and

convict the accused/respondent and imposed fine of double

the amount of the cheque in question and pass suitable

orders to compensate

the complainant/appellant by

allowing the appeal, in the ends of justice.

This appeal having been heard and reserved on

23.08.2021, coming on for pronouncement of judgment

this day, J.M.KHAZI J., delivered the following:

JUDGMENT

Being aggrieved by the dismissal of complaint filed

under Section 200 of Code of Criminal Procedure

(hereinafter referred to as 'Cr.P.C.' for short), 1973, for

the offence punishable under Section 138 of Negotiable

Instruments Act (hereinafter referred to as 'N.I.Act' for

short), 1881, against the accused, complainant has filed

this appeal under Section 378(4) of Cr.P.C.

2.

After due service of notice, respondent has

appeared through counsel.

3.

For the sake of convenience, the parties are

referred to their ranks before the Trial Court.

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4.

It is the case of the complainant that he and

accused are friends living in the same neighborhood and

for the business purpose, accused borrowed a sum of

`.6,00,000/- from the complainant on 15.03.2011 and he

promised to repay the same within one month, but failed

to keep up the promise. On repeated request and demand,

accused issued cheque dated 30.05.2011 for a sum of

`.6,00,000/- drawn on State Bank of Hyderabad, Raichur

Branch. When the same was presented through SBM,

Raichur, it was returned with shara (endorsement)

"insufficient

funds".

After

issuing

legal

notice

and

complying due formalities and on failure of the accused to

pay the amount due under the cheque, he filed the

complaint.

5.

In support of his case, complainant got himself

examined as PW.1 and got marked documents at Exs.P1

to 6. On the other hand, accused has examined himself as

DW.1 and on his behalf Exs.D1 to 13 were marked.

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6.

By the impugned judgment, the Trial Court has

dismissed the complaint on the ground that the accused

was able to rebut the presumption under Section 139 of

N.I.Act, but the complainant has failed to discharge the

onus placed on him that he had financial capacity to lend

`.6,00,000/- to the accused.

7.

The Complainant has challenged the impugned

judgment and order on the following grounds:

i)

The brother of complainant purchased 2 acres

out of 6 acres of land from the father of

accused and wanted to purchase the remaining

extent

of

4

acres,

but

the

family

of

complainant

was

not

ready

to

sell

the

remaining

land

and

it

lead

to

strained

relationship between the complainant and the

accused;

ii)

Though accused admit issuance of the cheque

in question, he has set up a false defence that

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he issued the blank cheque to the complainant

who is LIC agent towards payment of premium

of LIC policies standing in his name and after

the relationship became strained, he has

chosen to misuse the said cheque to file false

complaint;

iii)

Accused has failed to prove bot