IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 15TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH CRIMINAL APPEAL NO.1059 OF 2010 BETWEEN:
K. SURESH HEGDE SON OF LAXMANA HEGDE, AGED ABOUT 46 YEARS, RESIDING AT KULADAPARE HOUSE, NETTANIGE VILLAGE, KASARAGODU TALUK, KERALA STATE.
(BY SRI DAYANANDA K. G., ADVOCATE) AND:
P. R. MANJUNATHA AGED ABOUT 49 YEARS, SUPERINTENDENT, C.E.T CELL, NEAR MYSURU BANK OPPOSITE TO CAUVERY BHAVANA, KEMPEGOWDA ROAD, BENGALURU.
... APPELLANT ... RESPONDENT (BY SRI C. N. RAJU, ADVOCATE (ABSENT)) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 21.08.2010 PASSED BY THE CIVIL JUDGE AND J.M.F.C., SULLIA, D.K., IN C.C.NO.35 OF 2009 ACQUITTING THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.
***** THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The case of the complainant is that the accused towards payment of money due issued a cheque bearing No.9069257 dated 1.7.2008, drawn on Corporation Bank, Nrupathunga Road, Bengaluru in favour of the complainant for Rs.2,60,000/-. When the cheque was presented for encashment it was returned with an endorsement “insufficient funds”. A legal notice was issued. Nothing came of it. Hence, the instant complaint was lodged under Section 138 of the Negotiable Instruments Act. Notices were issued to the accused. In order to prove it case, the complainant examined himself as P.W.1 and marked Exs.P-1 to P-5. By the impugned order the accused was acquitted. Aggrieved by the same, the complainant has filed this appeal.
2. The learned counsel for the appellant contends that the impugned order is erroneous and interference is called for. That the cheque has been issued towards a legally enforceable debt. The reliance placed by the trial court on the opinion of the hand writing expert cannot be accepted. Hence, he pleads that the appeal be allowed by convicting the accused.
3. The learned counsel for the accused is absent.
On hearing learned counsel for the appellant, I’am of the view that there is no merit in this appeal. In view of the discrepancy with regard to the cheque the same was referred to a hand writing expert. He has furnished his information. The information has been extracted by the learned trial Judge at para-14 of the order which reads as follows:-
“OPINION 1) In the red enclosed part marked ‘Q1’, the existing figure ‘2’of the figures of amount “2,60,000=00” appears to have been added subsequently.
2) In the red enclosed part marked ‘Q2’, the writings reading “Two Lakh Sixty Thousand only has been written in an ink different from that in which the figures in ‘Q1’ has been written, and in the part marked ‘Q2, no sign of addition or alteration has been observed.”
I have examined Exs.P-1 the cheque. The opinion matches with the cheque. The figure ‘2’ is apparently added to the figure ‘60,000/-’. The finding of the hand writing expert is that the words ‘two lakh sixty thousand’ has been written in a different ink. So far as the figures is concerned, the appellant’s counsel submits that the cheque has been issued in that fashion only. However, on considering the evidence as well as the opinion such an interpretation of the appellant’s counsel cannot be accepted. It is a clear case of tampering with the cheque. The figure ‘two’ has been apparently added. It can be seen with a naked eye. The expert has opined that the words “Two Lakh Sixty Thousand only”- is written in a different ink. There is no acceptable explanation being offered even before this Court. The only explanation is that the cheque has been given in that fashion only. Under these circumstances, I do not find any good ground to interfere with the well considered order passed by the trial court. The order passed by the trial court is based on evidence and material on record. Hence, the appeal being devoid of merit, is dismissed.
Sd/- JUDGE Rsk/-