- 1 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 353 OF 2014 BETWEEN: SRI P VINOD KUMAR S/O LATE N.B. PURUSHOTHAMA RAO AGED ABOUT 49 YEARS RESIDING AT No.150 VEERAPILLAI STREET SHIVAJINAGAR BANGALORE - 560 001. …APPELLANT (BY SRI ASHOKA E, ADVOCATE) AND: SRI ABDUL SATTAR S/O LATE YOUSUF SIDDIQ SAIT AGED ABOTU 63 YEARS RESIDING AT No.21 VITTAL MALYA ROAD VIK GARDEN LAVELLY MARK, FLAT No.217 RAJANI GANDHA APARTMENT (NEAR SHELL PETROL BUNK ) BANGALORE – 560 068. …RESPONDENT (BY SRI A C PATIL, ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 374(3) Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 11.02.2014 IN C.C.No.27572/2011 PASSED BY THE XIV ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE - ACQUITTING Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT AND ETC., THIS APPEAL COMING ON FOR ARGUMENTS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT 1. This appeal is filed by the appellant – complainant challenging the judgment of acquittal dated 11.02.2014 passed in C.C.No.27572/2011 by the XIV Additional Chief Metropolitan Magistrate, Bengaluru, whereunder, the respondent – accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as ‘N.I.Act’). 2. Case of the appellant – complainant in brief is that; The appellant – complainant and the respondent – accused were known to each other since several years and the respondent – accused had approached the appellant – complainant and borrowed a sum of Rs.8,30,000/- for the purpose of discharging his debt, agreeing to repay the same with interest and issued a crossed cheque bearing - 3 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 No.085236 dated 27.06.2011 for Rs.8,30,000/- drawn on Union Bank of India, Hains Road Branch, Bengaluru towards discharge of the hand loan. The said cheque came to be presented by the appellant – complainant for encashment through the Corporation Bank, Cantonment Branch, Bengaluru and the same has been returned on 28.06.2011 with endorsement – “funds insufficient” . The appellant – complainant got issued the legal notice dated 06.07.2011 to the respondent – accused demanding to pay the cheque amount. The said notice has been served on the respondent – accused. The respondent – accused has not paid the cheque amount, but has sent a false reply. The appellant – complainant filed a private complaint against the respondent – accused for the offence under Section 138 of the N.I.Act. The learned Magistrate took cognizance and registered a criminal case in C.C.No.27572/2011 against the respondent – accused for the offence under Section 138 of the N.I.Act. The plea of the respondent – accused has been recorded. The appellant – complainant in order to prove his case, has examined himself as PW1 and got - 4 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 examined one Sri.P.Ravi Kumar as PW2 and got marked Exs.P1 to P7. The statement of the respondent – accused came to be recorded under Section 313 of Cr.P.C. The respondent – accused has been examined as DW1 and got marked Ex.D1. The Trial Court after hearing the arguments on both sides, has formulated the points for consideration and thereafter, passed the impugned judgment of acquittal. The said judgment of acquittal has been challenged by the appellant – complainant in the present appeal. 3. Heard learned counsel for the appellant – complainant and learned counsel for the respondent – accused. 4. Learned counsel for the appellant – complainant would contend that the respondent – accused had admitted his signature on Ex.P1 – cheque and therefore, a presumption arises under Section 139 of the N.I.Act, that the cheque had been issued for making payment of legally enforceable debt. The evidence of PW2 coupled with the evidence of PW1 establishes the amount borrowed by the respondent – accused. The respondent – accused had not rebutted the - 5 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 said presumption. Without considering all these aspects, the learned Magistrate has erred in acquitting the respondent – accused. On these grounds, he prayed for allowing the appeal and convicting the respondent – accused for the offence under Section 138 of the N.I.Act. 5. Learned counsel for the respondent – accused would contend that the respondent – accused on receipt of Ex.P3 – legal notice, has sent his reply – Ex.P7 denying the amount borrowed, his acquaintance with the appellant – complainant and his issuance of cheque to the appellant – complainant. He further submits that PW2 is the younger brother of the appellant – complainant and he was holding the vakalth for the appellant – complainant in this case and his evidence cannot be relied upon as he is an interested witness. The respondent – accused who has been examined as DW1 has produced Ex.D1 – letter containing endorsement of the Bank that the cheque No.085236 ie., Ex.P1 was issued to M/s.Fathima Timbers having Current Account No.457701010016011. He submits that there is no - 6 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 cross examination of DW1 with regard to the said Ex.D1. He submits that Ex.P1 – cheque is of the year prior to 2000 and the same has been admitted by PW1 in his cross examination. He submits that even on perusal of Ex.P1, it is clear that the print year contains the numerical “19”, which itself would indicate that the cheque had been issued prior to the year 2000. The respondent – accused in his reply has denied the alleged borrowing and issuance of cheque – Ex.P1 to the appellant – complainant. The date of borrowing is not mentioned in Ex.P4 – legal notice, complaint and the evidence of PWs.1 and 2. The capacity of PW1 to lend huge amount of Rs.8,30,000/- has not been established. He submits that there was another cheque dishonour case filed by the present appellant – complainant against Sri.Nissar Ahmed, wherein also the appellant – complainant contended that he had lent Rs.8,30,000/- and the cheque had been issued on 27.06.2011. He submits that the said aspect itself would show that the alleged lending by the appellant – complainant is Rs.8,30,000 + Rs.8,30,000 = Rs.16,60,000/-. The appellant – - 7 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 complainant has not placed on record his capacity to lend the said huge amount. He submits that in the sworn statement of PW1, the appellant – complainant had stated that he had lent money on 27.06.2011 to the respondent – accused and on the same date, the respondent – accused had issued a cheque – Ex.P1 for Rs.8,30,000/- and it was presented on the same day and it was dishonoured on 28.06.2011. The said aspect is contradictory to the contents of Ex.P4 – legal notice and the averments of the complaint. The respondent – accused had taken up the defence that Ex.P1 – cheque was signed by the respondent – accused which was blank, has been given to one Sri.Nissar Ahmed as a security to get the loan and it reached one Sri.Ravi Kumar who has misused the same through this respondent – accused. The said presumption under Section 139 of the N.I.Act has been rebutted by the respondent – accused by preponderance of probability and therefore, the onus has been shifted to the respondent – accused to prove the alleged borrowing and issuance of cheque towards legally enforceable debt. Even the date of - 8 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 borrowing has not been stated in the legal notice, complaint and the evidence of PWs.1 and 2. He has placed reliance on several decisions on his contentions. He submits that considering all these aspects, the learned Magistrate has rightly passed the judgment of acquittal. With this, he prayed for dismissal of the appeal. 6. Having heard the learned counsels, the Court has perused the impugned judgment and the Trial Court records. 7. Considering the grounds urged, the following point arises for consideration; “Whether the Trial Court has erred in passing the judgment of acquittal, acquitting the respondent – accused of the offence punishable under Section 138 of the N.I.Act?” 8. My answer to the above point is in the nagative, for the following reasons; - 9 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 It is the case of the appellant – complainant that the respondent – accused had borrowed Rs.8,30,000/- from the appellant – complainant. The date of borrowing the said amount has not been stated in Ex.P4 – legal notice, averments of the complaint and in the evidence of PWs.1 and 2. 9. PW2 is stated to be an eye witness to the alleged borrowing by the respondent – accused from the appellant – complainant. PW2 had admitted in his cross examination that he is the younger brother of the appellant – complainant and as an advocate, he has drafted the legal notice and also the complaint and he was an advocate for the appellant – complainant at the time of filing the private complaint. The said aspect itself would indicate that PW2 is an interested witness and therefore, his evidence is not trustworthy to place reliance on, to prove the alleged lending of money by the appellant – complainant to the respondent – accused. - 10 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 10. It is the defence of the respondent – accused that he is not acquainted with the appellant – complainant, he has not borrowed any money from him and he has not issued any cheque to him. It is his further defence that Ex.P1 – cheque has been issued which is blank and signed by him to one Sri.Nissar Ahmed to avail loan by him and that is more than ten years prior to he receiving the legal notice – Ex.P4. PW1 in his cross examination had admitted that Ex.P1 – cheque is of the year prior to 2000. On perusal of Ex.P1 – cheque, one can see that the year printed on it at the date column commencing with the numerical “19”. The said aspect itself fortifies the defence of the respondent – accused that the cheque is of the year prior to 2000. 11. Ex.D1 is the letter of the respondent – accused given to the Union Bank of India dated 06.06.2013 and in its bottom, there is an endorsement of the Bank. As per the said endorsement, the cheque No.085236 had been issued to M/s. Fathima Timbers, Current Account No. 457701010016011 maintained with their bank since - 11 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 19.07.1988. The said cheque No.085236 is the cheque which is at Ex.P1. The said Ex.P1 has been marked in the evidence of DW1. There is no cross examination with respect to the said document ie., Ex.D1 by the appellant – complainant. All these aspects fortifies the defence of the respondent – accused that the cheque – Ex.P1 had been issued by him to Sri.Nissar Ahmed and it has been misused. 12. The appellant – complainant to establish that he had the financial capacity to lend Rs.8,30,000/- has not placed any evidence on record. As the respondent – accused has rebutted the presumption raised under Section 139 of the N.I.Act, the onus shifts on the appellant – complainant to establish the alleged lending and issuance of cheque towards the legally enforceable debt. The appellant – complainant has not proved the said lending to the respondent – accused. Considering all these aspects, the learned Magistrate has rightly passed the impugned judgment of acquittal, acquitting the respondent – accused for the offence under Section 138 of the N.I.Act. There are - 12 - NC: 2025:KHC:1684 CRL.A No. 353 of 2014 no grounds made out for setting aside the impugned judgment of acquittal. In the result, the following; ORDER The appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE GH List No.: 1 Sl No.: 43