- 1 - NC: 2025:KHC-K:748 CRL.A No. 200229 of 2022 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 1ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL APPEAL NO. 200229 OF 2022 (378(Cr.PC)/419(BNSS) BETWEEN: AYESHA BANU D/O SHAYAMIDAPASHA AGED ABOUT: 28 YEARS, OCCU: HOUSE HOLD, R/O BADEBESA, SINDHANUR TOWN, TQ: SINDHANUR, DIST: RAICHUR – 584128. …APPELLANT (BY SRI ARUNKUMAR AMARGUNDAPPA, ADV.) AND: SRI ANIL KUMAR S/O AMARAPPA KAMANUR AGED ABOUT: 32 YEARS, OCCU: MECHANIC, R/O SHOP NAME: AMARA CAR CARE, OPP: RANI VOINCE, GANGAVATHI ROAD, TQ: SINDHANUR, DIST: RAICHUR – 584128. …RESPONDENT (BY MS. RANJITA ALAGAWADI, ADV.) THIS CRIMINAL APPEAL IS FILED U/S. 378 (4) OF CR.P.C, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE ORDER OF ACQUITTAL OF ACCUSED/RESPONDENT DATED 07.06.2022 PASSED IN C.C.NO.344/2018, BY THE II ADDL. CIVIL JUDGE AND JMFC AT SINDHANUR FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND PUNISH THE ACCUSED AS PER PROVISIONS OF SECTION 138 OF N.I. ACT.C) TO PASS SUCH ORDER OR ORDERS THAT, THIS HON’BLE COURT THINKS FIT TO PASS. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:748 CRL.A No. 200229 of 2022 CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL JUDGMENT (PER: HON'BLE MR JUSTICE RAJESH RAI K) This appeal directed against the judgment dated 07.06.2022 passed in C.C.No.344/2018 by the II Additional Civil Judge and JMFC, at Sindanur, whereby, the learned Judge acquitted the respondent/accused for the offence punishable under Section 138 of Negotiable Act, (for short ‘NI Act’). 2. The parties are referred to as per their ranking before the trial Court. 3. The facts apposite for consideration as borne out from the pleadings are as under: The accused is the friend of father of the complainant, as such he came into contact with the complainant, the accused was in need of money to meet out his family and business necessities and approached the complainant and requested her to lend the hand loan of Rs.6,10,000/ and agreed to return the same within two months. Accordingly the complainant lent the hand loan of a sum of Rs.6,10,000/- to the accused on 04.06.2017. After lapse of two months, the accused failed to - 3 - NC: 2025:KHC-K:748 CRL.A No. 200229 of 2022 repay the hand loan, hence the complainant approached the accused and requested him to repay the same, hence the accused issued a cheque dated 04.08.2017 bearing No.239016 of Corporation Bank branch Sindhanur for an amount of Rs.6,10,000/- towards repayment of loan borrowed by him. Accordingly, the complainant presented the cheque for encashment through her banker at State bank of Hyderabad (SBI) Branch at Sindhanur on 31.10.2017 and the same was returned unpaid to the complainant on 02.11.2017 with an endorsement "FUNDS INSUFFICIENT". Thereafter, on 10.11.2017, the complainant got issued the demand notice. The legal notice was duly served upon accused on 14.11.2017. In spite of service of legal notice, the accused neither replied to the same nor complied with the demand made in the notice. Hence, the complainant filed the complaint before the learned Magistrate under Section 200 of Cr.P.C for the offence punishable under Section 138 of N.I. Act. 4. To prove the case of the complainant before the trial Court, she himself examined as P.W.1 and got marked 5 documents. However, accused himself examined as DW.1 and got marked 6 documents. - 4 - NC: 2025:KHC-K:748 CRL.A No. 200229 of 2022 5. After assessment of oral and documentary evidence, the trial Court acquitted the accused for the offence punishable under Section 138 of the NI Act. 6. I have heard the learned counsel for the appellant so also the learned counsel for respondent and carefully perused the entire evidence on record. 7. On perusal of oral and documentary evidence, the issuance of cheque in question i.e., Ex.P1 and the signature of the accused on it is not disputed by the accused. However, the lending of hand loan by the complainant on 04.06.2017, the lending/financial capacity of the complainant so also the reason behind issuance of the cheque is seriously contested by the accused. According to the complainant, the accused had approached him and has borrowed a hand loan of Rs.6,10,000/- from her on 04.06.2017. However, in her cross- examination, she has admitted that, it was the wedding day of the accused. Further, to prove the said aspect, the accused confronted Ex.D6-the wedding invitation which was admitted by the complainant. Further, she also admitted in her cross- examination that on the date of wedding of the accused and on the following day, the accused and his brothers received the - 5 - NC: 2025:KHC-K:748 CRL.A No. 200229 of 2022 hand loan from her. This portion of the evidence of PW.1, clearly goes contradictory to her case projected in the legal notice, complaint and in her evidence that the accused himself received Rs.6,10,000/- on 04.06.2017. Further, according to the complaint, she has lent hand loan to the accused without any document and the cheque in question was issued by the accused after lapse of 2 months i.e., on 04.08.2017. Hence, the lending of hand loan by the complainant to the accused on 04.06.2017 itself creates a doubt in her version. 8. Further, in respect of lending/financial capacity of the complainant to the tune of Rs.6,10,000/- is concerned, the complainant has categorically admitted that she has no source of income and she is a student studying DED and she was at Saudi Arabia for a period of two years before the transaction. She also admitted that she is having an account at IDBI Bank, Sindhanur Branch and she did not had bank balance of Rs.4 to 5 lakhs at any point of time before the transaction. Further, her father do not earn much income either from the business or from agricultural income and all earnings of her father will not be sufficient to manage the home affairs and education of children. In such circumstance, the complainant has also failed - 6 - NC: 2025:KHC-K:748 CRL.A No. 200229 of 2022 to prove her financial capacity to lend a huge hand loan of Rs.6,10,000/- to the accused. It is also relevant to observe that, PW.1 has stated, she got the amount of Rs.6,10,000/- by selling the landed property in the year 2016, however, no such documents placed by her before the Court to prove the said contention. Further, according to her, the accused has executed a promissory note for having received the loan amount. However, the said document has not produced in her evidence. 9. Per contra, it is the specific case of accused that the complainant has filed a false case against him for the reason that herself and accused are being passionate each other and since he failed to marry her, she demanded money with menaces by retaining their intimate photographs, thereby blackmailing, forcibly received the cheque through one of his relative. To substantiate the said aspect, the accused produced the photographs-Exs.D1 to D4, the same depicts the accused and complainant was in close proximity with each other. In such circumstance, the accused has explained under what circumstance the cheque in question-Ex.P1 has issued to the complainant. No doubt under the provisions of Sections 118 and 139 of N.I. Act the initial presumption favours the holder of - 7 - NC: 2025:KHC-K:748 CRL.A No. 200229 of 2022 the cheque. However, it is settled position of law by the Hon’ble Apex Court that the said presumption can be rebutted by the accused by placing probable defence available under law. 10. In the case on hand, on perusal of examination of PW.1, she failed to prove her financial/lending capacity of Rs.6,10,000/- as hand loan to the accused so also to prove the lending of hand loan to the accused on 04.06.2017. Per contra, the accused successfully established the circumstance of issuance of cheque in question. Under this circumstance, this Court is of the view that the accused has rebutted the initial presumption by placing believable evidence. 11. In that view of the matter, the judgment passed by the trial Court is sound and proper, does not call for any interference. Accordingly, the appeal is dismissed being devoid of merits. Sd/- (RAJESH RAI K) JUDGE HKV List No.: 1 Sl No.: 9 CT: PS