Case Note & Summary
This criminal appeal under Section 378(4) of the Code of Criminal Procedure, 1973 arose from a cheque dishonour complaint under Section 138 of the Negotiable Instruments Act, 1881. The parties, Muniraju (complainant) and G. Nagaraju (accused), were friends. The accused allegedly borrowed a hand loan of Rs. 64,000 in October 2006 to meet urgent financial needs and issued a cheque dated 21.01.2007, which upon presentation was dishonoured. The complainant sent legal notice to the accused's residential and office addresses, but the accused did not reply. The trial court in C.C. No. 160/2007 convicted the accused on 20.02.2009. The accused appealed to the Additional District and Sessions Judge, Fast Track Court-V, Bengaluru Rural District, which allowed Criminal Appeal No. 23/2009 and acquitted the accused on 30.11.2010, finding that the complainant had not proved capacity to lend and that the cheque was not in the accused’s handwriting.
The complainant then filed the present appeal before the High Court of Karnataka under Section 378(4) Cr.P.C. The High Court initially allowed the appeal after re-appreciating evidence and convicted the accused, but upon an application by the respondent, recalled its judgment on 23.02.2021 and gave an opportunity to both sides to argue afresh.
In the rehearing, the main contention of the respondent was that the appeal was not maintainable and only a revision under Section 397 or 401 Cr.P.C. lies, as the Sessions Court had already exercised appellate jurisdiction. The appellant contended that Section 378(4) permits an appeal against any acquittal and that it is not a second appeal since the accused was the appellant before the Sessions Court. The Court framed two points for consideration: (i) whether the appeal lies or revision lies, and (ii) whether the First Appellate Court erred in acquitting the accused. On the merits, the appellant relied on the presumption under Section 139 NI Act, admission of signature, and non-reply to legal notice, citing Rangappa v. Mohan. The respondent argued that the complainant failed to prove capacity to lend, the loan violated Section 269SS of the Income Tax Act, and the accused’s defence of stolen cheque was probable.
At the conclusion of the extracted text, the Court was examining the maintainability issue and had extracted Section 378 Cr.P.C. The extracted portion ends abruptly, and the final analysis, decision, and order are not available in the provided judgment text. Therefore, the final outcome of the appeal remains unknown based on the incomplete record.
Issue of Consideration
Whether an appeal under Section 378(4) Cr.P.C. lies against an order of acquittal passed by the First Appellate Court, or whether only a revision under Sections 397 or 401 Cr.P.C. is maintainable; Whether the First Appellate Court committed an error in acquitting the accused under Section 138 of the Negotiable Instruments Act.
Law Points
- Appeal against acquittal under Section 378(4) Cr.P.C.
- distinction between appeal and revision
- presumption under Section 139 NI Act
- service of notice
- capacity to lend
- compliance with Section 269SS Income Tax Act
Case Details
2021 LawText (KAR) (08) 19
CRIMINAL APPEAL NO.309/2011
Shivaraj N. Arali (for appellant), Abhinav R. (for respondent)
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Nature of Litigation
Criminal appeal against acquittal in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The appellant/complainant sought to set aside the order of acquittal passed by the First Appellate Court and restore the conviction order passed by the trial court.
Filing Reason
The First Appellate Court reversed the trial court's conviction and acquitted the accused, which the complainant challenged on the grounds that the appellate court misapplied the law regarding presumption and burden of proof.
Previous Decisions
The trial court in C.C. No. 160/2007 convicted the accused on 20.02.2009. The Additional District and Sessions Judge, Fast Track Court-V, Bengaluru Rural District, in Criminal Appeal No. 23/2009, acquitted the accused on 30.11.2010.
Issues
Whether an appeal under Section 378(4) Cr.P.C. lies against an order of acquittal passed by the First Appellate Court, or whether only a revision under Section 397 or 401 Cr.P.C. is maintainable.
Whether the First Appellate Court committed an error in acquitting the accused under Section 138 of the NI Act.
Submissions/Arguments
Appellant: The appeal is maintainable under Section 378(4) as it is not a second appeal (the accused was the appellant before the Sessions Court). The accused admitted his signature on the cheque, did not reply to the legal notice, and thus the statutory presumption under Section 139 was not rebutted. The trial court correctly convicted, and the First Appellate Court erred in ignoring the presumption and the decision in Rangappa v. Mohan. The relationship of friends justified a hand loan without demanding interest or documentary proof.
Respondent: The appeal is not maintainable and amounts to a second appeal; only a revision under Sections 397/401 Cr.P.C. lies, as the Sessions Court already exercised appellate jurisdiction. On merits, the complainant failed to prove capacity to lend, the cheque was not in the accused’s handwriting, and the loan violated Section 269SS of the Income Tax Act. The First Appellate Court's reasoning for acquittal was sound and should not be interfered with.
Judgment Excerpts
The main question raised by the learned counsel for the respondent is that the appellant cannot invoke Section 378 of Cr.P.C. to file an appeal against the order of acquittal. ... the remedy is only to invoke Section 397 or Section 401 of Cr.P.C.
This Court on re-appreciation of evidence, allowed the appeal and set aside the judgment of the First Appellate Court and convicted the accused for the offence punishable under Section 138 of the NI Act.
The trial Court, after recording the evidence of the complainant examined the accused under Section 313 of Cr.P.C. The accused also examined himself as DW1 and got marked Ex.D1. The trial Judge, after considering both oral and documentary evidence convicted the accused ...
Procedural History
The complaint was filed before the Magistrate for an offence under Section 138 NI Act. The trial court convicted the accused on 20.02.2009. The accused appealed to the Additional District and Sessions Judge, Fast Track Court-V, Bengaluru Rural District, in Criminal Appeal No. 23/2009, which acquitted the accused on 30.11.2010. The complainant filed the present appeal under Section 378(4) Cr.P.C. before the High Court. The High Court initially allowed the appeal and convicted the accused, but subsequently, on an application by the respondent, recalled its judgment on 23.02.2021. After rehearing arguments, the Court reserved judgment on 30.07.2021 and pronounced on 10.08.2021 (though the available text is incomplete).
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 139
- Code of Criminal Procedure, 1973: 378, 313, 397, 401, 372, 2(d)
- Income Tax Act, 1961: 269SS
- General Clauses Act, 1897:
