1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.1484/2017 BETWEEN: 1 . SRI. MADAN GOPAL G., S/O KASI VISHWANADHAM AGED ABOUT 37 YEARS RESIDING AT NO.87/1 ASHWATHAPPA COMPOUND, AMRUTHAHALLI, BYATARAYANAPURA BENGALURU-560 092. … APPELLANT (BY SRI. SHIVARAMA BHAT O., ADVOCATE) AND: 1 . SMT. JAYAKANTHAMMA P., W/O GOVINDACHARYALU RESIDING AT NO.531 BEHIND BALAJI COMPLEX AMRUTHAHALLI MAIN ROAD, SAHAKARANAGAR, BENGALURU-560 092. … RESPONDENT (RESPONDENT IS SERVED AND UNREPRESENTED) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 17.08.2017 PASSED BY THE XVIII ADDITIONAL METROPOLITAN MAGISTRATE, BENGALURU IN C.C.NO.23960/2016-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT. 2 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 07.04.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV JUDGMENT 1. Heard the learned counsel for the appellant and though respondent served, unrepresented. 2. This appeal is filed challenging the judgment of acquittal passed by Trial Court in C.C.No.23960/2016 on the file of XVIII Addl. Chief Metropolitan Magistrate, Bengaluru. 3. The factual matrix of case of complainant is that the accused is running chit business for the last several years. The accused convinced the complainant to join the chit business and according,y on 10.10.2014, the accused issued a Cheque bearing No.663441 dated 25.07.2016 for an amount of Rs.6,00,000/- drawn on State Bank of India, 3 Amruthahalli Branch, Bengaluru and when the same was presented, returned with an endorsement ‘funds insufficient’ and the same was brought to the notice of accused and he requested to re-represent the same and accordingly the same was re-represented on 25.07.2016 and again the same was dishonored with the same reason. The accused failed to make the payment and hence, the legal notice was issued on 08.09.2016 and the same was served on 10.09.2016 and when the accused did not pay the amount, complaint was filed and cognizance was taken and the accused was secured and he did not plead guilty and hence, the complainant examined himself as P.W.1 and got marked Ex.P1 to Ex.P6. The accused did not chose to lead defense evidence and mark any documents. The Trial Court having considered the evidence of the complainant dismissed the complaint and hence, the present appeal is filed. 4 4. The counsel appearing for the appellant would vehemently contend that the accused has been given opportunity in her statement and the same was recorded under Section 313 of Cr.P.C and she has admitted that she has given the Cheque and also returned an amount of Rs.1,50,000/- as she has lost the job and she was unable to repay and the same will be paid in due course and also contend that the Trial Court made the observation in paragraph No.11 of the same, but in paragraph No.16 comes to the conclusion that the accused has specifically stated about returning of Rs.1,50,000/- to the complainant which has not been given any deduction by the complainant and therefore whether the payment is made before the presentation of the Cheque or after the issuance of the Cheque has not been explained during his course of either affidavit evidence or cross-examination, therefore 313 statement alone cannot be taken as incriminating circumstances. The Trial Court even inspite of there is an 5 admission, committed an error and also an observation was made that P.W.1 himself in page No.2 cross-examination admitted on 15.04.2017 that when he used to make the payment towards the chit and accused used to sign the dairy and it is the duty of the complainant to place the dairy in which the accused used to sign after receiving the amount and this fact is to be considered by this Court to draw adverse inference against the complainant that the amount claimed is not a legally recoverable debt. The very approach of the Trial Court is erroneous. This Court has issued the notice against the respondent and inspite of served, unrepresented. 5. Having heard the learned counsel for the appellant and also on perusal of material available on record, the point that would arise for consideration of this Court are: 1) Whether the Trial Court committed an error in acquitting the accused inspite of 6 admission on the accused and whether it requires interference of this Court by exercising the appellate jurisdiction? 2) What Order? 6. Having heard the learned counsel for the appellant and also considering the grounds which have been urged in the appeal and counsel appearing for the appellant brought to notice of this Court even an observation made by the Trial Court in paragraph No.11 wherein an observation is made that accused admitted the issuance of Cheque and claims returning of Rs.1,50,000/- and as she lost the job, she was unable to repay the same. The Trial Court made an observation in paragraph No.16 that she has stated in 313 statement having returned the amount of Rs.1,50,000/-. Having perused, in the cross-examination except the answer eliciting the answer from complainant, having acquaintance with 10 years his wife and his sister in laws were making payment of Rs.2,500/- towards ‘Agri 7 gold’ chit company and accused was the agent of Agri gold chit company and also he used to make the payment in favour of Agri Gold chit company and used to take back the amount and this has been extracted by the Trial Court while acquitting the accused and here the answer elicited from the mouth of P.W.1 is with regard to payment of amount in favour of Agri gold chit company and taking of the amount and no doubt in the cross-examination also elicited that whenever he makes the payment towards the chit, they used to make the signature to the dairy and witness categorically volunteers that he used to make the payment towards Agri Gold chit company as well as the chit which was run by the accused and the Agri Gold chit company was closed, but the fact is that accused did not dispute the issuance of Cheque and also notice was served on the accused is also not in dispute and no reply was given and there is no any defense evidence before the Court. Apart from that as brought to the notice of this Court by the 8 appellant’s counsel that when 313 statement was recorded and when the accused admits in 313 statement, having repaid the amount of Rs.1,50,000/- as contended, no document is placed before the Court. The Trial Court accepted the defense which was taken in the 313 statement and fails to take note of the fact that admitted the issuance of Cheque and contend that made the payment of Rs.1,50,000/- and now not having any job and hence, the amount was due and also admits that going to make the payment. When such statement was made by the accused in the cross-examination, ought to have taken note of the same and instead of that the Trial Court erroneously comes to the conclusion that the dairy which had been countersigned by the accused was not placed on record and ought to have taken note of the admission given in 313 statement itself and if really made the payment of Rs.1,50,000/- as admitted in 313 statement, accused ought to have led the defense evidence before the Trial Court and 9 produced the documents and mere say of that made the payment of Rs.1,50,000/- cannot be taken as gospel truth and unless a probable defense is raised and adduced evidence and substantiated the same and that too in the absence of any evidence placed on record, the Trial Court ought not to have accepted the statement made in 313 statement for having repaid the amount of Rs.1,50,000/- and no cogent evidence is placed before the Court. When such being the material on record, the Trial Court ought not to have comes to a such a conclusion that when there is a clear admission on the part of the accused, even when the accused sought time to pay the amount as he has lost the job erroneously acquitted the accused and committed an error and requires interference of this Court by exercising the appellate jurisdiction and the very finding of the Trial Court is perverse and the same is against the material on record and hence, I answer the point as ‘Affirmative’. 10 7. In view of the discussions made above, I pass the following: ORDER i) The Criminal Appeal is allowed. ii) The judgment and conviction passed by the Trial Court in C.C. No.23960/2016 dated 17.08.2017 is set-aside. Consequently, the accused/respondent is convicted under Section 138 of Negotiable Instruments Act and directed to pay fine amount of Rs.6,25,000/- and out of that Rs.6,00,000/- is payable to the appellant and remaining amount of Rs.25,000/- shall be defrayed to the State. In case of default of payment of fine amount, the appellant shall undergo simple imprisonment for a period of six months. Sd/- (H.P. SANDESH) JUDGE RHS