I IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED ThIS THE 15Th DAY OF MARCH, 2011 BEFORE THE T-ION’BLE MR. JUSTICE V. JAGANNATHAN CRL.A. NO.511/2005 BETWEEN: SRI.PREMANAND, 5/0 BDSAVANEPPA AKKISHETFI, AGED MAJOR, 0CC: BUSINESS, MANAGER OF M/S HAflARKI FEEDS A PARTNERSHIP FIRM, HONGA INDUSTRIAL AREA, HONGA, TALIJKA AND DIST: BELGAUM. .APPELLANT (BY SRI.JAGADISH PATIL, ADV.) AND: SRI.SHARAD KALLAPPA KHOT, AGED MAJOR, 0CC: BUSINESS, R/0 H.N0.329, ¶E’ WARD, NEW SHAHAPURI, KOLHAPUR, MAHARASTRA STATE. ...RESPONDENT (BY SRI.GIRIJA S.HIREMATh, ADV.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT ThIS HONtLE COURT MAY BE PLEASED TO SET ASIDE ThE ORDER DT.7.2.2005 IN C.C.NO.18/02 ON ThE FILE OF ThE III ADDL C.J.(JR.DN.) & JMFC, BELGAUM ACQUITtING ThE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.138OF N.I. ACT. 2 THIS APPEAL COMING ON FOR FINAL HEARING This DAY, THE COURT DELIVERED ThE FOLLOWING: JUDGEMENT The appellant was the complainant before the trial Court and the complaint filed by him alleging the commission of the offence under Section 138 of N.I. Act by the respondent, came to be dismissed by the trial Court. Aggrieved by the acquittal of the respondent, the complainant has preferred this appeal. 2. The case of the complainant in short is that, the respondent-accused borrowed Z2,50,000/- from the complainant and not repaid the said hand loan. The respondent-accused issued a cheque bearing No.0836310 for ?2,50..000/- on 29.02.20O0 dçawn on Bank of Maharashtra and the cheque being on presented was returned by the banker on 13.02.2000 with the endorsement “Insufficient Funds” and” Refer to Drawef and the complainant issued notice to the respondent and not getting any positive S rt,ot sc (riapijiral ts1CtL,Y 1’h. c ‘del t,cl r ‘lab trial Cuur 3 lhc- ‘ii ü Court ‘lit rraflerwords tool up the ‘tc’ .w— •‘iya:ai e taRt n and aitti sCtVaC il flouCt tc thc xespondcnt nd the accused pleaded not guilty, tht complarnaut i as askrd to lead evidenec, and accordingl) IlK cornplaanni:t himself as examined is P W. 1 and prnduceO clocumcnts t E,xs P1 to P6 ‘Ihc accuse] also leal . b’s, ecaniirnng himself is I) W 1 r& submissic , cf accused is im of otal denial rn the given statement. Learned trial Julac afti’ p Ct tr g thc niden c ‘n reec’a. .i qut ted tIl i U I c ‘1 i £O1. I Cr •ti’ i tic w’ T per Ft-P the 1 i 4 cAj ‘q ‘, :ci r. ht bIer ‘%%L.td 1- i• 1j .s c •..‘.‘ ‘1 ‘ tht b—rk ‘1t .nt t’”:’ r.,”t.i:t - 1 i ( l ii €“, ‘. 1”- C’•’ 1 a’’ • dT • .,3! ...P ,‘, •t tt.— r 1 ..ij. ‘ iiL % 1 f, 1 ’ t f 4 in the instant case, cheque was returned with the endorsement “signature differs”, the question of 138 of N.I. Act being attracted does not arise. Second reason given by the trial Court was that, there was no legally recoverable debt and cheque was issued by the accused as security only. Third reason given was that, the signature on the cheque Ex.P1 differs from the signature on the vakalath Ex.P6. -All- sdP these reason the accused was acquitted. 5. Heard learned counsel Sri. Jagadish Path for the appellant and learned counsel Smt. Girija S. Hiremath for the respondent. 6. Submission of the appellant counsel is that, entire evidence appreciation by the trial Court is erroneous because in the bank endorsemnt issued as per Ex.P3, it has been clearly stated that the cheque was returned not only on account of “signature differs” but also on the ground of “insufficient funds’. Learned counsel refers to the endorsement at serial number 19 of the bank memo wherein it is mentioned “insufficient funds”. Therefore, trial Court I as roflR hnlCWW that the tcUOfl 138 nf ‘l %ct does not the as on band P s ‘ ai, I) iib’ is ibe ha’ idmitttd thc cr’S that. be bd sucd thc chcaUe and a’ b him a 4 tlirretOW the uid CoU could pot ha” dtsbCht the ot the comPlhhtWt Leafl1 coun’S ai5t 4 ygUCd that. W aeeW’ actl.iall’ enCU,g.OO( troth the sam’ hank 0 fter soUW’ and thcrCtOTt the cotidU’ of the cu% also goeS tO prOct tht ca$C of the coflP’ SubroibMOri is made thait 1 Ccnifl had tout) 4 that. ing bcntt it coOl 4 laVt got 5 ignati” comP11 juth3ut d 0 iug that. trial CoUfl has acquitt the acCUS1 oril’ hecau of ate gnaoremthdn1t siSi’’ cWfetS is such, sabt11i6°’ niade s that the 1 .ttet t q’ u’C’ 4 cofl 4 1 stiOt’ b’ the tr.a 1 . alP 0” Va iii r ct $ ji icwh Ic n 1 n- , r rtSf.t n d’r Ct tn& ir “C’ . t.:l’ it batfrafhft0t cr er.t iaP ri 1 ‘jar ‘ 1” • U a’ Cr’ • . 1J4. *1 £5” ILL -liti C’ ‘tj I hr “sini if;Lrc Ij rs’ P.’ tetc, . the • ( Ott t cJ :tp; •f • t[ •“ ‘ha’ th(.. S. ‘i.,ti ‘.: \ T ‘. isntat’iIti I ri’! ‘i’isrl I r’c 4 ’h 1 ..% S%tt * (‘ a t Ut(lISt H 4 nino thus Ji ‘ it’d both side intl tftci goinw F .ugh U rcas ii isswr c o r uh ‘ii ins th Sri tin 1 I 4.t ty ‘hg t1 t.ed ‘ t iiiitetittd the. hank endorqt’men: at Es P3 also njrnijnni-d a! ci rid! number 1 s I r ir • art fn’ trial u’t I i los jit o I ‘P rue .l ‘at’ t ‘n nib £‘ .i.i.J dS st;r I. :e . •it .‘ t • j ?•• .;‘ n•i pr •;u- r “St •,tl i( 4’t” ‘, ‘ t ‘ ci P’i it . ‘10 I. i ••.‘hi. I. ‘ii.? ,:‘ ‘: ‘ :—: —. . •• • . ••• . • • — ••_ • •• It. It iii .1 I • I& 7 9. For the above reasons, in my view, the matter requires remand to the trial Court for fresh consideration on all the aspects of the matter and therefore the following order is passed. The appeal is allowed. The judgement of acquittal passed by the trial Court is set aside. The matter remanded to the trial Court for fresh consideration in accordance with law. Sd/ JUDGE MBS/