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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 23rd DAY OF DECEMBER, 2020

BEFORE

THE HON’BLE MR.JUSTICE P.N.DESAI

CRIMINAL APPEAL No.200059/2015

Between:

M/s. Theerth Enterprises, Manvi

By its proprietor

Raghvandra s/o Hanumanthaiah

Age: 44 Years Occ: Business

R/o: Manvi Tq: Manvi

Dist: Raichur - 585 401.

…. Appellant

(By Sri Sachin M. Mahajan, Advocate for

Sri. R.S. Sidhapurkar, advocate)

AND:

Nusrat Pasha (Lucky)

S/o Imamsab

Age: 51 Years Occ: Business

R/o: Farah Colony,

Manvi Tq: Manvi

Dist: Raichur - 585 401.

… Respondent

(By Sri. Basavaraj R.Math, Advocate)

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

the Code of Criminal Procedure praying to admit this appeal,

call for the records of the courts below and set aside the

judgment and order dated 31.03.2015 in C.C.No.383/2011

passed by the learned Civil Judge and JMFC, Manvi 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.

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This appeal having been heard, reserved for judgment

and coming on for pronouncement of judgment this day, the

court delivered the following:

JUDGMENT

1. This appeal lays challenge to the Judgment

of acquittal passed by Civil Judge & JMFC Manvi in C.C

No.383/2011 dated: 31-03-2015 wherein the accused is

acquitted by the trial court for the offence punishable

under section 138 of Negotiable Instrument Act 1881

(hereinafter shortly referred as "NI Act".)

2.

The appellant was the complainant and

respondent was the accused before the trial court. For

the purpose of convenience the parties will be referred

in this Judgment as per their respective ranks before

the trial court.

3.

The complainant was running a business of

selling rice in the name and style as M/s Teerth

Enterprises. The accused placed an order for 100

quintals of rice at the rate of Rs.3000/- per quintal. As

per the order placed on 19-03-2009 towards the

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repayment of the said amount the accused issued a

cheque dated: 18-04-2009 drawn on Syndicate Bank

Manvi branch Manvi for a sum of Rs.3,00,000/-. When

the cheque was presented to Bank the same was

reurned dishonored with endorsement 'insufficient

funds" on 04-07-2009. Then the complainant issued

demand statutory legal notice on the same day. The

accused did not comply the demand. Hence he lodged a

complaint to take action against the accused for the

offence punishable under section of 138 of NI Act.

4.

The accused appeared before the trial court.

5.

Thereafter

words

the

learned

J.M.F.C.

recorded the Plea by putting substance of accusation to

accused for the offence punishable under section 138 of

NI Act. The accused pleaded not guilty and claims to be

tried.

6. The complainant got examined himself as

PW.1 and produced ten documents as Ex.P.1 to

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Ex.P.10. Accused got examined himself as DW.1. No

doucments were marked for accused.

7. After hearing both the sides the learned trial

Court acquitted the accused. Aggrieved by the same,

this appeal is preferred on the following grounds

a) that the findings of the Magistrate that two legal

notices were issued by the complainant, on the basis of

subsequent

legal

notice

the

complaint

is

not

maintainable is erroneous.

b) the observation of the trial court that Ex.P.1

invoice does not bear the signature of the accused is

baseless and erroneous.

c) the complainant has proved all the ingredients

of section 138 of N.I Act. The issuance of cheque is

clearly admitted by the accused. There is no proper

appreciation of evidence in the right perspective which

has resulted in wrong acquittal.

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With these main grounds the complainant prays

to set aside the Judgment of acquittal and convict the

accused.

8. Heard Sri.Sachin M Mahajan learned counsel

for appellant and Sri.Basavaraj R. Math lea