- 1 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 294 OF 2015 BETWEEN: SRI B PRAKASH BHAT S/O B SUNDR BHAT AGED ABOUT 47 YEARS R/O BEHIND S S SADANA KODIYAL BAIL MANGALORE – 575 003. …APPELLANT (BY SRI CHANDRASHEKAR, ADVOCATE) AND: KRISHNAMURTHY PARTNER: HOTEL GANESH PRASAD K S ROAD MANGALORE – 575 001. …RESPONDENT (BY SRI DEEPAK WAGLE, ADVOCATE FOR SRI A KESHAVA BHAT, ADVOCATE) THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED:8.1.2015 PASSED BY THE JMFC-V COURT, MANGALORE D.K.,IN C.C.No.779/10 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC., THIS APPEAL COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT This appeal is filed by the appellant –complainant challenging the judgment of acquittal dated 08.01.2015 passed in C.C.No.779/2010 by the Principle JMFC-V Court, Mangalore, wherein the respondent –accused has been acquitted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act” for brevity). 2. The case of the complainant’s in brief is as under: The complainant filed monthly returns in Form No.3 of KST Act, 1957 every month and for the services rendered by complainant for the period of 2004-05 to 2006 -07 accused agreed to pay Rs.6,000/- per year as fee. For payment demanded by the complainant, the respondent –accused issued - 3 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 cheque for Rs.24,000/- including additional fee of Rs.6,000/- for the additional services rendered by the complainant. The cheque issued by the respondent – accused was returned with shara “Payment stopped by Drawer”. The complainant has issued notice to the respondent –accused. The respondent –accused sent his reply. As accused did not pay the cheque amount, the appellant –complainant has filed private complaint against the respondent –accused for offence punishable under Section 138 of the N.I Act. 3. The learned Magistrate has taken cognizance against the respondent –accused and registered C.C.No.779/2010 for the offence punishable under Section 138 of N.I. Act. The respondent – accused appeared in the said case and the plea came to be recorded. The complainant in order to prove his case has examined himself as P.W.1 and got marked documents as Ex.P1 to P18. The statement of the - 4 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 respondent –accused came to be recorded under Section 313 of Cr.P.C. The respondent –accused has examined Bank Manager as D.W.1 and got marked document as Ex.D3 though him. Ex.D1 and D2 are marked in the cross examination of P.W.1. Learned Magistrate after hearing arguments on both side has formulated points for consideration and passed the impugned judgment of acquittal. The said judgment of acquittal has been challenged by the complainant in this appeal. 4. Heard learned counsel for the appellant – complainant and learned counsel for the respondent – accused. 5. Learned counsel for the appellant– complainant would contend that the appellant – complainant has rendered service of examining bills every month for the period between 2004-07 and the respondent –accused has agreed to pay his - 5 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 remuneration in sum of Rs.6,000/- P.A. The respondent –accused has also entrusted additional work and also agreed to pay Rs.6000/- for the same. In order to pay the said amount he has issued cheque for Rs.24,000/-. The respondent –accused has admitted his signature on Ex.P1 –Cheque. Therefore, the presumption arises under Section 139 of the N.I. Act that the cheque has been issued for making payment legally recoverable liability. The respondent – accused has not entered witness box to establish his defence. The respondent –accused has not rebutted the presumption raised under Section 139 of N.I. Act. Without considering all these aspects, learned Magistrate has erred in passing impugned judgment of acquittal. With these, he prays for allowing the appeal and convict the respondent- accused for offence punishable under Section 138 of N.I Act. - 6 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 6. Learned counsel for the respondent – accused would contend that the cheque –Ex.P1 has been lost by the respondent –accused and therefore, he gave intimation to the Bank to stop payment by his application which is at Ex.D3. D.W.1 –the Bank Manager has stated regarding the accused filling the said application –Ex.D3 for stop payment of his cheque which is at Ex.P1. The said intimation to the Bank by the accused is on 30.08.2006 which is much prior to the date of cheque. The said aspect itself indicates that cheque which was in the hands of the complainant has been misused. The complainant did not performed his duty assigned by the accused to submit sales tax returns as his license was cancelled by order dated 06.02.2005 and as sales tax returns were not submitted penalty has been imposed on the respondent -accused. The respondent –accused has filed consumer complaint against the complainant – - 7 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 appellant wherein compensation has been awarded for the deficiency of service of the appellant – complainant. The appeal filed by the appellant – complainant challenging the order of the Consumer Court has also been dismissed. The respondent – accused has issued reply to the notice as per Ex.P14 on 24.03.2008 denying contents of the notice issued by the appellant dated 08.03.2008 wherein it is specifically stated regarding this respondent –accused engaging service of other person for submitting his sales tax returns. When there is dispute between the appellant –respondent there is no any question of entrusting additional work for which the appellant – complainant demanding Rs.6,000/-. The cheque amount Rs.24,000/- is not legally due by the respondent –accused to the complainant. The respondent –accused has rebutted the presumption. The appellant –complainant has not established that - 8 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 the respondent –accused is due amount of Rs.24,000/- Considering all these aspects, learned Magistrate has rightly passed the judgment of acquittal. With these, he prays for dismissal of the appeal. 7. Having heard learned counsel, this Court has perused impugned judgment and trial Courts records. Considering grounds urged, the following point arises for consideration. “Whether the trial Court has erred in acquitting the respondent –accused for offence punishable under Section 138 of N.I Act?” My answer to the above point is in the negative for the following reasons. It is specific case of the appellant –complainant that he is sales tax consultant and he is filing returns attending sales department. The respondent –accused has entrusted him the work of submitting sales tax - 9 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 returns for the year 2004-05 and 2006 -07. The appellant –complainant has rendered service to the respondent –accused and he has also rendered additional services and therefore, the respondent – accused is due a sum of Rs.6000/- X 3 = Rs.18,000/- + 6,000/- = Rs.24,000/-. It is further case of the complainant that in order to pay the due amount of Rs.24,000/-, the respondent –accused has issued EX.P1 –Cheque dated 11.04.2008. It is specific defence of the respondent –accused that the license of the complainant has been cancelled on 06.06.2005 and he did not submit sales tax returns of the respondent –accused and therefore, penalty has been imposed on the respondent –accused. The complainant who has been examined as P.W.1 has not disputed that his license has been cancelled on 06.06.2005 and the order of cancellation has been quashed by this Court by order dated 01.02.2008. - 10 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 The very said aspect itself indicate that the complainant had no license to submit sales tax returns between 06.06.2005 to 01.02.2008. Ex.D1 and D2 indicate that the respondent –accused has filed consumer complaint for deficiency of service of the complainant and compensation has been awarded in the said consumer complaint filed by the respondent – accused. Even, the appeal filed by the complainant has been dismissed. Ex.P14 is the reply notice got issued by the respondent –accused to the notice dated 08.03.2008 got issued by the appellant –complainant. In the said reply notice the respondent –accused has specifically stated that due to deficiency of service on the part of the complainant not submitting sales tax returns, penalty has been imposed on the respondent –accused and therefore, he has entrusted the work to the other i.e. M/s. R.N Associate. The said reply is on 24.03.2008 and cheque –Ex.P1 is dated 11.04.2008. - 11 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 When there is dispute between the complainant and accused the question of respondent –accused issuing cheque –Ex.P1 on 11.04.2008 for services rendered by the complainant does not arise at all. 8. The evidence of D.W.1 and EX.D3 itself prove that the respondent –accused has intimated his Banker to stop payment of Cheque –Ex.P1 and the said intimation is given on 30.08.2006. When intimation to the Banker has been issued on 30.08.2006 there is no question of respondent – accused issuing the said cheque to the complainant on 11.04.2008. The said aspect itself probablises the defence of the respondent –accused. Considering all these aspects, the respondent –accused has rebutted the presumption drawn under Section 139 of N.I Act. As presumption is rebutted the onus is on the complainant to prove that the respondent –accused is due and therefore, he has issued cheque –Ex.P1. - 12 - NC: 2025:KHC:2893 CRL.A No. 294 of 2015 9. Considering all these aspects, learned Magistrate has rightly acquitted the respondent – accused for offence punishable under Section 138 of N.I Act by well reasoned judgment. There are no grounds for allowing the appeal. 10. In the result, the appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DSP List No.: 1 Sl No.: 54