- 1 - NC: 2025:KHC-D:5607 CRL.A No. 100095 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 26TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO.100095 OF 2016 BETWEEN: 1. SHRI.MUKTARAHAMAD S/O. KUTBUDDIN KHANAPURI, SINCE DECEASED BY HIS LRS. 1A. SMT. DILSHAD W/O. MUKTAR KHANPURI, AGE: 53 YEARS, OCC: HOUSEWIFE, R/O: KHANAPUR, TQ: KHANAPUR, DIST: BELAGAVI – 591 302. 1B. SHRI. AJARUDDIN S/O. MUKTAR KHANAPURI, AGE: 35 YEARS, OCC: VEGETABLE BUSINESS, R/O: KHANAPUR, TQ: KHANAPUR, DIST: BELAGAVI – 591 302. 1C. SMT. BIBISAFA W/O. ALLABAKSH BETAGERI, AGE: 32 YEARS, OCC: HOUSEWIFE, R/O: KHANAPUR, TQ: KHANAPUR, DIST: BELAGAVI – 591 302. 1D. SHRI. ISMAIL S/O. MUKTAR KHANAPURI, AGE: 30 YEARS, OCC: VEGETABLE BUSINESS, R/O: KHANAPUR, TQ: KHANAPUR, DIST: BELAGAVI – 591 302. …APPELLANTS (BY SRI. B. M. PATIL, ADVOCATE) AND: SHRI. ALTAF HAYATSAB MULLA, AG: MAJOR, OCC: BUSINESS, R/O: SAYYAD GALLI, KHANAPUR, DISTRICT: BELAGAVI. …RESPONDENT (BY SRI. H. M. DHARIGOND, ADVOCATE) Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - NC: 2025:KHC-D:5607 CRL.A No. 100095 of 2016 THIS CRIMINAL APPEAL IS FILED U/SEC. 378(4) OF CR.P.C., 1973, PRAYING TO SET ASIDE THE JUDGMENT IN C.C.NO. 382/2012 DATED 26/02/2016 PASSED BY THE PRL. CIVIL JUDGE & JMFC, KHANAPUR, ACQUITTING THE ACCUSED AND PUNISH THE ACCUSED U/SEC. 138 OF NEGOTIABLE INSTRUMENTS ACT 1881 BY ALLOWING THE IN THE INTEREST OF JUSTICE AND EQUITY. THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER This appeal is filed by appellant/complainant challenging the judgement of acquittal dated 26.02.2016 passed in C.C.No.382/2012 by the Prl. Civil Judge and JMFC, Khanapur, whereunder, respondent/accused has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘138 of N.I. Act’, for short) . 2. The case of the appellant/complainant in brief is as under: The appellant/complainant and respondent/accused are well known to each other, both are residents of Khanapur City. The complainant was owner of land bearing - 3 - NC: 2025:KHC-D:5607 CRL.A No. 100095 of 2016 R.S.No.28/1 measuring 4 acres 19 guntas 8 annas, situated in Mansapur village, Khanapur Taluka. The complainant intended to sell his 2 acres of land to the accused. The accused approached the complainant and showed his willingness to purchase the said land for consideration of Rs.3,00,000/-. The complainant has executed a registered sale deed in favour of accused. The accused had no sufficient amount to pay consideration amount. The accused paid Rs.2,25,000/- in cash and Rs.75,000/- through a cheque bearing No.021419 dated 01.08.2008 of Shree Bhagyalaxmi Co-operative Credit Society Limited, Khanapur. The said cheque was presented for encashment and it came to be dishonoured with an endorsement “Funds Insufficient” in the account of the accused by memo dated 28.10.2008. The complainant got issued legal notice dated 10.11.2008 calling upon the respondent/accused to pay the cheque amount within 15 days. The said notice has been served on the respondent/accused. Inspite of service of notice, respondent/accused has not paid the cheque amount. - 4 - NC: 2025:KHC-D:5607 CRL.A No. 100095 of 2016 Therefore, the complainant, filed a private complaint against the respondent/accused for offence under Section 138 of N.I. Act 3. Learned Magistrate has taken cognizance and registered case in C.C.No.382/2012 against the respondent/accused for offence under Section 138 of N.I. Act. The plea of the accused has been recorded. The complainant in order to prove his case has examined himself as PW-1 and got marked documents as Exs.P-1 to P-5 and also examined another witness as PW-2. The statement of accused has been recorded under Section 313 of Cr.P.C. The accused in defence has examined himself as DW-1 and got marked documents as Ex.D-1 to D-10. 4. The learned Magistrate after hearing the arguments on both sides, has formulated the points for consideration and passed the impugned judgement of acquittal. The said judgement of acquittal has been challenged by the complainant in this appeal. - 5 - NC: 2025:KHC-D:5607 CRL.A No. 100095 of 2016 5. Heard learned counsels for appellant and respondent. 6. Learned counsel for appellant would contend that under the sale agreement-Ex.P-5, the respondent/accused has agreed to purchase 2 acres of land of the complainant for sale consideration of Rs.3,00,000/- and at the time of executing the sale deed- Ex.D-1 dated 23.06.2008, sale consideration in part Rs.2,25,000/- has been paid in cash and cheque dated 01.08.2008 has been issued for Rs.75,000/- in favour of the complainant. He submits that the said cheque has been dishonoured. The said cheque is issued as part of sale consideration for executing sale deed–Ex.D-1. He submits that sale price for 1 acre of land is Rs.1,50,000/- and the same can be seen on perusing Ex.D-2-sale agreement dated 19.06.2008. Without considering these aspects, the learned Magistrate has erred in acquitting respondent/accused. With this, he prayed for allowing the - 6 - NC: 2025:KHC-D:5607 CRL.A No. 100095 of 2016 appeal and convicting the respondent/accused for offence under Section 138 of N.I. Act. 7. Learned counsel for respondent would contend that the entire sale consideration of Rs.3,00,000/- as agreed under sale agreement-Ex.P-5 has been paid as on the date of sale deed dated 23.06.2008(Ex.D-1). There was another sale agreement pending executed by complainant in favour of the accused dated 19.06.2008. Whereunder, the complainant has agreed to sell his 1 acre of land for sale consideration of Rs.1,50,000/- and under which Rs.25,000/- has paid as advance, towards making payment of another part of sale consideration, cheque- Ex.P-1 has been issued for Rs.75,000/- and appellant/complainant did not agreed to execute the sale deed as agreed under sale agreement-Ex.D-2 and the cheque was not honoured. The same has been admitted by PW-1 in his cross-examination. In respect of the said sale agreement- Ex.D-2, dated 19.06.2008, there was a suit for specific performance filed by the accused against - 7 - NC: 2025:KHC-D:5607 CRL.A No. 100095 of 2016 the complainant in O.S.No.52/2009 and another suit is filed in O.S.No.17/2009 by the complainant against the accused seeking permanent injunction. Both suits have been decreed and certified copies of judgements are at Ex.D-9 and D-10 and Ex.D-5 and Ex.D-6. He contends that as sale agreement-Ex.D-2 has not been performed, there is no liability on the part of the respondent/accused for honour of cheque-Ex.P-1 issued regarding part payment of sale agreement. Considering the said aspect, learned Magistrate has rightly acquitted respondent/accused. With this, he prayed for dismissal of the appeal. 8. Having heard learned counsels, the Court has perused the impugned judgment and trial Court records. 9. Considering grounds urged, the following point arises for consideration: i. Whether the trial Court has erred in acquitting the respondent/accused for offence under Section 138 of N.I. Act? - 8 - NC: 2025:KHC-D:5607 CRL.A No. 100095 of 2016 10. My answer to the above point is in ‘negative’ for the following reasons. 11. The appellant/complainant has agreed to sell his 2 acres of land in R.S.No.28/1 to the respondent/accused under the sale agreement-Ex.P-5 for Rs.3,00,000/-. As per the said sale agreement, sale deed has been executed on 23.06.2008, certified copy of sale deed is at Ex.D-1. There is no mention in Ex.D-1-sale deed that there is a balance amount of sale consideration of Rs.75,000/- to be paid by the accused to the complainant. As per complainant, cheque-Ex.P-1 dated 01.08.2008 is issued for Rs.75,000/- in favour of complainant by accused. When the sale transaction is concluded by executing sale deed on 23.06.2008, there is no question of accused issuing the cheque dated 01.08.2008 for Rs.75,000/-. 12. There was another sale agreement dated 19.06.2008, copy of which is at Ex.D-2, whereunder, complainant has agreed to sell his 1 acre of land to the - 9 - NC: 2025:KHC-D:5607 CRL.A No. 100095 of 2016 respondent/accused for Rs.1,50,000/- and he received advance of Rs.25,000/-. The said sale agreement is not performed by the complainant and therefore, the accused has filed a suit for specific performance in O.S.No.52/2009 and the judgment passed in the said case is at Ex.D-9. It is the case of the respondent/accused that cheque-Ex.P-1 has been issued pertaining to the sale agreement-Ex.D-2 dated 19.06.2008 for making payment of part of balance sale consideration of Rs.1,25,000/-. The same has been admitted by PW-1 in his cross examination, the relevant portion of said cross-examination is as under: “£À£Àß ªÀÄvÀÄÛ DgÉÆæAiÀi ªÀÄzÀå £Á£ÀÄ ZÉPÀÄÌ ºÁPÀĪÀ §UÉÎ ºÁUÀÆ DgÉÆæAiÀi vÀ£ÀUÉ MAzÀÄ JPÀgÉ d«Ä¤£À §UÉÎ RgÉâ ¥ÀvÀæ §gÉzÀÄPÉÆqÀĪÀ WÀµÀðuÉ £ÀqÉ¢zÀݪÀÅ JAzÀgÉ ¸Àj, DgÉÆæAiÀÄÄ £À£ÀUÉ RgÉâ ¥ÀvÀæ §gÉzÀÄPÉÆqÀĪÀªÀgÉUÀÆ vÁ£ÀÄ PÉÆlÖ 25 ¸Á«gÀ gÀÆ. AiÀÄ ZÉPÀÄÌ ªÀiÁ£Àå ªÀiÁqÀĪÀÅ¢®è JAzÀÄ ºÉüÀÄwÛzÀÝgÀÄ ºÁUÀÆ £Á£ÀÄ DgÉÆæUÉ ªÉÆzÀ®Ä ZÉPÀÄÌ ªÀiÁ£Àå ªÀiÁqÀ¨ÉÃPÀÄ £ÀAvÀgÀ RgÉâ ¥ÀvÀæ §gÉzÀÄPÉÆqÀÄwÛzÉÝ JAzÀÄ ºÉüÀÄwÛzÉÝ. F ªÀÄzÀå £Á£ÀÄ DgÉÆæ PÉÆlÖ ZÉPÀÄÌ ¨ÁåAQUÉ ºÁPÀÄvÉÛÃ£É JAzÀÄ ºÉý DgÉÆæ vÀ£Àß SÁvÉAiÀÄè°zÀÝ J¯Áè zÀÄqÀØ£ÀÄß ªÁ¥À¸ÀÄì vÉUÉzÀÄPÉÆArzÁÝgÉAzÀgÉ ¸Àj. ¸ÀzÀj ZÉPÀÄÌ £Á£ÀÄ JgÀqÀÄ JPÀgÉ d«ÄäUÉ ¸ÀA§AzsÀ¥ÀlÖ ºÁUÉ DgÉÆæAiÀÄÄ £À£ÀUÉ PÉÆnÖzÁÝgÉAzÀÄ ºÉüÀÄwÛzÉÝÃ£É ªÀÄvÀÄÛ DgÉÆæ ¸ÀzÀj ZÉPÀÄÌ RgÉâ PÀgÁgÀÄ ¥ÀvÀæ DzÀ MAzÀÄ JPÀgÉ d«ÄäUÉ PÉÆnÖzÁÝgÉ JAzÀÄ ºÉüÀÄwÛzÁÝgÉ JAzÀgÉ ¸Àj.” - 10 - NC: 2025:KHC-D:5607 CRL.A No. 100095 of 2016 13. Considering the above said admission given by PW-1 in his cross examination, it is clear that Ex.P-1- cheque for Rs.75,000/- issued with regard to the sale agreement-Ex.D-2 dated 19.06.2008. The performance of the said sale agreement-Ex.D-2 is subject matter of suit in O.S.No.52/2009 filed by accused against the complainant. Considering the same, the appellant/complainant has not established that cheque–Ex.P-1, has been issued for making payment of sale consideration pertaining to sale deed-Ex.D-1 and sale agreement-Ex.P-5. Considering the said aspect, the learned Magistrate has rightly acquitted the respondent/accused for offence under Section 138 of N.I. Act. The appellant has not made out any grounds for setting aside the impugned judgment of acquittal. 14. In the result, the appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE RKM/CT-ASC List No.: 1 Sl No.: 31