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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL APPEAL No. /2021

BETWEEN:

Sri. Purushothama … Appellant

And

Sri. GC Ramegowda …Respondent

LIST OF DATES & SYNOPSIS

DATES EVENTS

01.03.200 The Respondent approached the Appellant borrowed a

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loan of Rs 2,00,000/- (Rupees Two Lakh Only)
05.05.200 Accordingly Respondent issued cheque bearing No
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437609, dated 05/05/2008 drawn on Punjab national
bank, mandya Branch, MC Road, mandya
07.05.200 The Appellant on presenting the said cheques for
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realization at Punjab national bank, mandya Branch, MC
Road, mandya was returned unpaid with endorsement
‘funds insufficient’.
05.05.200 Appellant got issued a legal notice and subsequently filed
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a complaint under section 200 of Cr.P.C r/w section 138 &
142 of Negotiable instrument Act.
The learned Trial Court recorded the plea and tried the
matter. In order to prove the case the manager of the
appellant got examined as PW1 and got marked Ex.P1 to
Ex.P10 the statement under section 313 Cr.P.C was
recorded. The accused also got himself examined DW 1
along with two witness DW 2 and DW 3 and got marked
Exhibits D 1 to D 6.
17.11.202 The learned trial Court after examining the witnesses and
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hearing the argument of both the parties was pleased to
acquit the accused for offence punishable under section
138 of Negotiable Instrument Act,1881
Being aggrieved by the order of acquittal, the present
appeal is filed seeking an order of conviction.
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RELIEF SOUGHT IN BRIEF

Being aggrieved by the judgment and order dated 17.11.2020 passed

in C.C.No.445/2013 by the Judicial Magistrate Of The
First Class, Mandya, produced hereto as Annexure-A, acquitting the
accused, the appellant has filed the present appeal seeking an order of
conviction of the accused in the interest of justice.

BENGALURU ADVOCATE FOR APPELLANT

DATED: .01.2021

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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CRIMINAL APPEAL NO. / 2021

IN THE COURT OF THE JUDICIAL MAGISTRATE OF THE

FIRST CLASS, MANDYA

CC NO.445/2013

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL APPEAL NO. / 2021

BETWEEN: RANK OF THE PARTIES

TRIAL COURT HIGH COURT

Sri. Purushothama,
S/o late Shivalingaiah,
Aged about years,
R/o Jain Street, 1st cross,
Mandya-571401 Complainant Appellant

AND

Sri. GC Ramegowda,
S/o Chikkegowda,
Aged about 52 years,
R/o Gantegowdanahalli village,
Keragodu Hobli,
Mandya Taluk-571446. Accused Respondent

MEMORANDUM OF APPEAL UNDER SECTION 378(4) OF THE

CODE OF CRIMINAL PROCEDURE, 1973

The Appellant most humbly submits as follows:

1. The address of the appellant for the purpose of service of

summons, notices, etc from this Hon’ble court is as stated in the
cause title. The appellant may also be served through its counsel
Mr. N. Jagadish, Advocate, having offices at, No.10/7, New Mico
Road, Adugodi, Bengaluru-560030.

2. That the address of the respondent for the purpose of service of

summons, notices etc. From this Hon’ble Court is as stated in the
cause title.
3. Being aggrieved by order dated 17.11.2020 in CC No.445 /2013
passed by the Judicial Magistrate Of The First Class, Mandya
wherein the learned Magistrate was pleased to acquit the
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accused for offence punishable under Section 138 of NI Act, the

present appeal is filed seeking an order of conviction of the
accused in the interest of justice on the following facts and
circumstances:

BRIEF FACTS OF THE CASE.

4. It is submitted that the appellant/complainant and the

respondent/accused are known to each other as friends. The
parties are referred to their ranks as they were before the trial
court. That the accused had approached the complainant for a
hand loan to take care of his urgent financial necessities in the
month December 2008. The accused borrowed loan from
complainant a sum of Rs. 1,50,000/- (Rupees One Lakh Fifty
Thousand Only) in cash from the complainant on 24.12.2008.
After the laps agreed time accused person failed to repay the
said amount. The complainant demand for repayment of loan
amount the accused issued a cheque bearing No 437610, dated
26/03/2009 drawn on Punjab national bank, mandya Branch, MC
Road, mandya for an amount of Rs 1,50,000/- (Rupees One Lakh
Fifty Thousand Only). The complainant presented the said cheque
through his banker i.e Indian bank Mandya branch on 26/03/2009
for encashment. But the said cheque came to be dishonored with
an endorsement “Insufficient Fund” and was returned on
28/03/2009.

5. The Complainant states that he got issued a legal notice dated

01/04/2009 through registered post acknowledgment due and
also under certificate of posting. The said legal notice was
returned with a shara as ‘Not Claimed’ on 15/04/2009 by the
accused. The Complainant states further the accused had the
knowledge of the presentation. The accused instead of paying the
demanded cheque amount, has also not replied to the notice
issued by the Complainant. The cheques issued by the accused
towards the discharge of an existing liability and his conduct in
not arranging the said amount in the account and having the
same dishonored for the reasons account closed amounts to an
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offence punishable under section 138 of the Negotiable

Instruments Act, 1881.

6. The complainant preferred a complaint in No 445/2013 before

the trial court. The accused entered appearance. The
complainant led his evidence and got examined himself as PW-1
and got marked documents Exhibit P 1 to P 7 marked. The
accused also got himself examined DW 1 along with two witness
DW 2 and DW 5 and got marked Exhibits D 1 to D 15(b)-(e). The
statement under section 313 Cr.P.C was recorded. The trial court
after considering the material and documents was pleased to
acquit the accused. Being aggrieved by the said order the
complainant has preferred the present appeal following amongst
other grounds:

GROUNDS

7. The judgment and the order of acquittal passed by the

Judicial Magistrate of the First Class, Mandya, is erroneous,
perverse, illegal and liable to be set aside.

8. It is submitted that the Trial Court failed to notice that the Exhibit
D/15 being alleged Panchayath Partition dated 26.04.2005,
created/concocted by the Accused which has been printed on a
document Sheets belongs to the Registration and Stamps
Department dated 15.03.2007 and 25.07.2013 which is evident
from the letters dated 24.09.2015 & 11.01.2016 issued by the
Karnataka State Registration and Stamp Department. This clearly
shows that the Accused has falsely created the documents for the
purpose of the case. Further the above said fact has been clearly
admitted by the Accused during his cross examination before the
trial court. Hence the Judgment dated 17.11.2020 has to be set-
aside on this ground alone.

9. The Learned Magistrate has failed to consider that the Hon’ble

Apex Court in a catena of decisions has held that as per Section-
118 NI Act, it is to be presumed in favour of the complainant
during the trial that the cheque in question was given against
consideration by the accused and that the complainant was the
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holder of the said cheque in due course. Further as per Sec. 139 NI
Act, it is to be presumed in favour of the complainant during the
trial that the cheque in question was received by the complainant
against a legally enforceable debt or liability. For the sake of
convenience, Section 139 NI Act is extracted hereunder:

“139. Presumption in favour of the holder – It shall be

presumed, unless the contrary is proved, that the holder of a
cheque received the cheque of the nature referred to in Section
138 for the discharge, in whole or in part, of any debt or other
liability”.

The Learned Magistrate has also not considered the presumption

under Section 114 of the Indian Evidence Act, 1972. The Learned
Magistrate ought to have drawn adverse inference considering the
conduct of the Respondent in failing to lead evidence on its behalf.

10. The Learned Magistrate has failed to consider that the burden of
proving that the cheque had not been issued towards discharge of
any existing debt or liability is on the accused. That mere denial of
the averments by the accused is not sufficient to shift the burden
of proof onto the complainant. That the accused has to prove in
trial by leading cogent evidence that there was no debt or liability.
The Learned Magistrate has failed to consider the same in the
present case and has erroneously acquitted the accused.

11. Further for rebutting the presumptions under the Negotiable

Instruments Act, a just need is to raise a probable defence.
However, in the present case, the accused not only failed to show
preponderance of probability in his favour but also not succeeded
in discharging his initial burden for rebutting the presumption
under the NI Act by not leading any cogent evidence in his support.
Thus, the Learned Magistrate ought to unhesitatingly hold that the
accused has not been able to rebut the presumptions under
Section 139 and 118 NI Act standing in favour of complainant and
convict the accused.
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12. The learned Magistrate grossly failed to consider that the

Respondent Accused did not dispute the cheques in question or
the signature etc. The Learned Magistrate failed to consider that
the Appellant has established the financial capacity. The
Respondent Accused cannot outrightly deny the borrowing of loan
amount. The Accused has not denied the issuance of cheque, the
amount filled in etc. It is not open to the Accused to deny any
relationship between the complainant and the accused.

13. The learned Magistrate grossly erred in coming to the conclusion

that there is non-existence of the legally recoverable debt between
the appellant and respondent despite the transactions.

14. The learned Magistrate grossly failed to consider that the

Respondent Accused did not dispute the cheques in question. The
Learned Magistrate failed to consider that the Appellant has
established Ex D 15(b)-(e).

15. It is also relevant to mention that even in the statement, the

respondent has admitted the transaction during his cross
examination. The learned magistrate wrongly assumed the same,
which is in valid in law, and liable to be set aside

16. That the learned Magistrate grossly erred in holding that the
Accused has rebutted the presumption u/S 139 NI Act by cross
examining PW-1. It has failed to consider that there was a legally
recoverable debt due from it to the Complainant Hence liable to be
set aside.

17. That the learned Magistrate grossly erred in holding that the
Complainant is not entitled to recover the money covered by the
impugned cheque from the Accused. Hence liable to be set aside.

18. That the learned Magistrate grossly erred in holding that the
Complainant has failed to prove that the Accused has committed
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an offence punishable under Section 138 of the Negotiable

Instruments Act, 1881. Hence liable to be set aside.

19. That the impugned judgment passed by the learned Magistrate is

otherwise erroneous and contrary to the facts and circumstances
of the case and is, therefore, liable to set aside.

20. The Appellant craves leave of this Hon’ble Court to urge additional
grounds at any time before the final hearing and disposal of the
present appeal.

21. On any ground the impugned judgment and order of the trial court
is in valid in law liable to set aside/quashed, and the respondent is
liable to be punished under section 138 read with 142 of the
Negotiable Act.

22. The impugned order is dated 17.11.2020, and the present appeal
filed is within time, and this Hon’ble court has got jurisdiction to try
this appeal.

23. That no other appeal or legal proceedings against the impugned

order dated 17.11.2020 has been filed or pending in any court of
law, except the above appeal.

PRAYER

The appellant wherefore, respectfully prays that this Hon’ble court

be pleased to:

(a) Grant leave to appeal and Call for the records in CC No.445/2013
passed by the Judicial Magistrate of the First Class, Mandya.

(b) Set aside the impugned judgment and order dated 17.11.2020 in
CC No.445/2013 passed by the Judicial Magistrate Of The
First Class, Mandya, produced as ANNEXURE-A and punish the
respondent for the offences under Section 138 of the Negotiable
Instruments Act, and award compensation to the appellant by
allowing this appeal.
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(c) Grant any other order as this Hon’ble court deems fit in the
circumstances of the case, by allowing this appeal with costs in
the interest of justice.

BENGALURU ADVOCATE FOR

APPELLANT
DATED: __.02.2021

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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CRIMINAL APPEAL NO. /2021

BETWEEN:

Sri. Purushothama … Appellant

And

Sri. GC Ramegowda …Respondent

INDEX

Sl No Particulars Page No
1 Synopsis
2 Memorandum of Criminal Appeal
3 Annexure-A: Impugned judgment dated
17.11.2020 in CC No.445/2013.

4 Vakalath

5 IA for Special Leave

6 Affidavit

BENGALURU ADVOCATE FOR APPELLANT

DATED: ___.02.2021

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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CRIMINAL APPEAL NO. / 2021

BETWEEN: RANK OF THE PARTIES

TRIAL COURT HIGH COURT

Sri. Purushothama,
S/o late Shivalingaiah,
Aged about years,
R/o Jain Street, 1st cross,
Mandya-571401 Complainant Appellant

AND

Sri. GC Ramegowda,
S/o Chikkegowda,
Aged about 52 years,
R/o Gantegowdanahalli village,
Keragodu Hobli,
Mandya Taluk-571446. Accused Respondent

IA FOR SPECIAL LEAVE UNDER SECTION 378(4) OF THE CODE

OF CRIMINAL PROCEDURE, 1973

For reasons stated in the accompanying affidavit, it is humbly prayed

that this Hon’ble Court grant special leave to file the appeal against
the order of acquittal dated 17.11.2020 in CC No. 445/2013 passed by
the Judicial Magistrate Of The First Class, Mandya, in the interest of
justice.

BENGALURU ADVOCATE FOR APPELLANT

DATED:___.02.2021

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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CRIMINAL APPEAL NUMBER /2021

BETWEEN:

Sri. Purushothama, … Appellant

And

Sri. GC Ramegowda …Respondent

AFFIDAVIT

I Sri. Purushothama, S/o late Shivalingaiah, Aged about years,

R/o Jain Street, 1st cross, Mandya-571401. do hereby solemnly affirm
and state as follows:

1. I state that I am the appellant company. I state that I am

conversant with the facts of the case and competent to depose to
this affidavit. I state that I have been authorized to file the present
appeal.

2. I stat that being aggrieved by the judgment and order dated

17.11.2020 in CC No.445/2013 passed by the
Judicial Magistrate Of The First Class, Mandya, acquitting the
accused, the appellant has filed the present appeal seeking an
order of conviction of the accused.

3. I state that the present application has been filed seeking special
leave of this Hon’ble Court to file the appeal against the order of
acquittal dated 17.11.2020 passed in C.C.No. 445/2013 by the
Judicial Magistrate Of The First Class, Mandya.

4. I state that the Hon’ble trial court after hearing the arguments, by
its judgment and order dated 17.11.2020 was pleased to dismiss
the complaint in C.C.No.445/2017 and acquitted the accused.

5. I state that the appellant/complainant and the respondent/accused

are known to each other. The parties are referred to their ranks as
they were before the trial court. That the accused had approached
the complainant for an hand loan to take care of his urgent
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financial necessities in the month December 2008. The accused

borrowed loan from complainant a sum of Rs. 1,50,000/- (Rupees
One Lakh Fifty Thousand Only) in cash from the complainant on
24.12.2008. after the laps agreed time accused person failed to
repay the said amount. The complainant demand for repayment of
loan amount the accused issued a cheque bearing No 437610,
dated 26/03/2009 drawn on Punjab national bank, mandya Branch,
MC Road, mandya for an amount of Rs 1,50,000/- (Rupees One
Lakh Fifty Thousand Only). The complainant presented the said
cheque through his banker i.e Indian bank Mandya branch on
26/03/2009 for encashment . but the said cheque came to be
dishonored with an endorsement “Insufficient Fund” and was
returned on 28/03/2009.

6. I state that The Complainant states that he got issued a legal

notice dated 01/04/2009 through registered post acknowledgment
due and also under certificate of posting. The said legal notice was
returned with a shara as Not Claimed on 15/04/2009 by the
accused. The Complainant states further the accused had the
knowledge of the presentation. The accused instead of paying the
demanded cheque amount, has also not replied to the notice
issued by the Complainant. The cheques issued by the accused
towards the discharge of an existing liability and his conduct in not
arranging the said amount in the account and having the same
dishonored for the reasons account closed amounts to an offence
punishable under section 138 of the Negotiable Instruments Act,
1881.

7. I state that I preferred The complainant preferred a complaint in

No 445/2013 before the trial court. The accused entered
appearance. The complainant led his evidence and got examined
himself as PW 1 and got marked documents Exhibit P 1 to P 7
marked. The accused also got himself examined DW 1 along with
two witness DW 2 and DW 5 and got marked Exhibits D 1 to D
15(b)-(e). The statement under section 313 Cr.P.C was recorded.
The trial court after considering the material and documents was
 14

pleased to acquit the accused. Being aggrieved by the said order

the complainant has preferred the present appeal.

8. I state that I have been advised that the appellant has a fair
chance of success in the appeal. I state that for the sake of brevity,
the averments and grounds urged in the appeal be read as part
and parcel of this application.

9. I state that the present application seeking special leave of this

Hon’ble Court to file the appeal be granted. I state that if this
accompanying application seeking special leave to file appeal is
rejected, the appellant will suffer irreparable loss and hardship. Per
contra, no prejudice will be caused to the Respondent.

WHEREFORE it is humbly prayed that this Hon’ble Court grant

special leave to file the appeal against the order of acquittal dated
17.11.2020 in CC No. 445/2013 passed by the Judicial Magistrate
First Class, Mandya, in the interest of justice.

Bengaluru DEPONENT
Date:
Identified by me,

Advocate
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL APPEAL NUMBER /2021

BETWEEN:

Sri. Purushothama, … Appellant

And

Sri. GC Ramegowda …Respondent

INDEX

SL NO PARTICULARS PAGE NO

1 IA for Special Leave

2 Affidavit

BENGALURU ADVOCATE FOR APPELLANT

DATED: .02.2021 (N.JAGADISH)