- 1 - NC: 2025:KHC:12180 CRL.A No. 461 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 461 OF 2021 (A) BETWEEN: T. TULASIDAS S/O LATE T. K. KONDAIAH, AGED ABOUT 53 YEARS, RESIDING AT NO.58, BASAVA SAMITHI MAIN ROAD, NEAR NANJAPPA CIRCLE, THINDLU, VIDYARANYAPURA, BENGALURU-560097. …APPELLANT (BY SRI K. VIJAYA KUMAR, ADVOCATE) AND: SMT. RATNAMMA W/O LATE KRISHNAMURTHY, AGED ABOUT 54 YEARS, RESIDING AT NO.87, 2ND FLOOR, AIYAPPA ENCLAVE, KOGILU, YELAHANKA, BENGALURU-560064. …RESPONDENT (BY SRI. B. O. CHANDRA SHEKAR, ADVOCATE) THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER OF ‘ACQUITTAL’, VIDE JUDGMENT DATED 08.01.2021, PASSED BY THE HON’BLE LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE(CCH-61), BENGALURU IN CRL.APPEAL. NO.1622/2019 AT ANNEXURE-A AND CONFIRM THE JUDGMENT DATED 01.07.2019 PASSED BY THE HON’BLE XVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN C.C.NO.19845/2017 AT ANNEXURE-B. THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 10.03.2025 COMING ON FOR PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: Digitally signed by RENUKA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12180 CRL.A No. 461 of 2021 CORAM: HON'BLE MR JUSTICE S RACHAIAH CAV JUDGMENT 1. This appeal is filed by the appellant being aggrieved by the judgment of acquittal passed by the Appellate Court for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘N.I Act’). 2. The ranks of the parties in the Trial Court will be considered henceforth for convenience. Brief facts of the case: 3. It is the case of the appellant that he knew the accused since many years and both were known to each other. It is stated that the accused had borrowed a sum of Rs.30,00,000/- on different dates for the purpose of purchasing the gold and silver articles on the occasion of the marriage of her daughter and also for other legal necessities. 4. It is stated that in the first week of April 2017, when the complainant approached the accused and asked her to return the loan which he had given to her, the accused had issued a cheque dated 15.06.2017 for a sum of - 3 - NC: 2025:KHC:12180 CRL.A No. 461 of 2021 Rs.30,00,000/- and requested the complainant to present the same for encashment. When the said cheque was presented for encashment, it got dishonoured for want of sufficient funds. Therefore, the complainant issued a notice to the accused and informed her about the dishonour of cheque. In spite of service of notice, the accused neither replied to the said notice nor returned the amount. Therefore, the complainant filed a complaint before the jurisdictional Magistrate. 5. To prove the case, the complainant got himself examined as PW.1 and got marked 15 documents as Exs.P1 to P15. On the other hand, the accused got herself examined as DW.1 and examined another witness as DW.2. The Trial Court after appreciating the oral and documentary evidence on record, convicted the accused for the offence punishable under Section 138 of N.I Act. On appeal being filed, the Appellate Court set aside the judgment of conviction passed by the Trial Court and acquitted the accused for the offence punishable under Section 138 of N.I Act. - 4 - NC: 2025:KHC:12180 CRL.A No. 461 of 2021 6. Heard Sri.K.Vijaya Kumar, learned counsel for the appellant and Sri.B.O.Chandra Shekar, learned counsel for the respondent. 7. It is the submission of the learned counsel for the appellant that the Appellate Court has misread the principles of N.I Act and opined that the initial burden would lie upon the complainant to prove his case and thereafter the burden would be shifted to the accused, which is contrary to the principles of the N.I Act and also the law laid down by the Hon'ble Supreme Court in various cases. 8. It is further submitted that the Trial Court has failed to raise the presumption which was required to be raised in favour of the complainant. Having failed to raise such presumption, resulted in passing the impugned judgments. Therefore, the judgment of acquittal passed by the Appellate Court has to be set aside. Making such submissions, the learned counsel for the appellant prays to allow the appeal. 9. Per contra, the learned counsel for the respondent justified the findings of the Appellate Court and he - 5 - NC: 2025:KHC:12180 CRL.A No. 461 of 2021 submitted that initially the complainant has to discharge the presumption that he had sufficient means or financial capacity to lend such a huge amount. Once it is proved, the Trial Court has to raise the presumption in favour of the complainant. Therefore, the burden would be shifted on the accused to rebut the said presumption. 10. It is further submitted that the complainant being the Conductor working at BMTC stated to have paid the amount of Rs.30,00,000/- to the accused cannot be accepted and the same is considered as unimaginable. Such being the fact, the findings of the Appellate Court in rendering the acquittal is appropriate and proper. Interference with the findings is not necessary and hence, the appeal has to be dismissed. Making such submissions, the learned counsel for the respondent prays to dismiss the appeal. 11. Having heard the learned counsel for the respective parties and also perused the findings of the Appellate Court in reversing the judgment of conviction passed by the Trial Court, it is necessary to have a cursory look upon the evidence both oral and documentary on record. - 6 - NC: 2025:KHC:12180 CRL.A No. 461 of 2021 12. Before adverting to the facts of the case, it is relevant to refer the proposition of law in respect of the N.I Act. 13. The Hon'ble Supreme Court in the case K.N.BEENA v. MUNIYAPPAN AND ANOTHER1 held in paragraph No.7 as under: “7. In this case admittedly the 1st respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/averments in his reply dated 21-5- 1993 were sufficient to shift the burden of proof on to the appellant complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1st respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The 1st respondent not having led any evidence could not be said to have discharged the burden cast on him. The 1st respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability, the conviction as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction. 1 (2001) 8 SCC 458 - 7 - NC: 2025:KHC:12180 CRL.A No. 461 of 2021 14. In another case, the Hon'ble Supreme Court in the case of TEDHI SINGH v. NARAYAN DASS MAHANT2 paragraph No.10 reads as under: 10. The trial court and the first appellate court have noted that in the case under Section 138 of the NI Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the NI Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by 2 (2022) 6 SCC 735 - 8 - NC: 2025:KHC:12180 CRL.A No. 461 of 2021 pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately, it becomes the duty of the courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence. 15. On careful reading of the dicta of the Hon’ble Supreme Court stated supra, it makes it clear that the complainant need not show in the first instance that he had the capacity to lend the amount and it is also held that mere denial of the transaction is not sufficient to hold that the accused has rebutted the presumption. 16. In this context, now it is relevant to refer the evidence of DW.1 for the purpose of re-appreciation. DW.1 Rathnamma is a house wife. She admitted that she had performed the marriage of her son on 08.09.2016 and also admitted that the complainant is the uncle of her - 9 - NC: 2025:KHC:12180 CRL.A No. 461 of 2021 daughter-in-law. She deposed that she had no transaction with the complainant and the said cheque had been issued to her son, who is examined as DW.2 and it was kept in the house of DW.2. 17. It is further stated that there was a difference of opinion between DW.2 and her daughter-in-law and the same has been ended in getting the divorce. She further stated that her daughter-in-law being a relative of the complainant stated to have stolen the said cheque and handed over the same to the complainant and the complainant had presented the said cheque only in order to take revenge against the accused. 18. On conjoint reading of the evidence of DWs.1 and 2, it appears that the divorce has been obtained by both DW.2 and his wife after filing of this complaint. However, in the settlement arrived at between the parties, it has not been mentioned that the cheque was stolen by his wife and it was given to the complainant for encashment. If it was to be true, he being a Police Sub- Inspector should have lodged a complaint against his wife and he could have taken back the cheque. - 10 - NC: 2025:KHC:12180 CRL.A No. 461 of 2021 19. After having gone through the evidence of DWs.1 and 2 thoroughly, I am of the opinion that the accused has just denied the transaction. However, such denial is not sufficient to hold that she is not liable to pay the cheque amount. Hence, I am of the considered opinion that the findings of the Appellate Court in reversing the judgment of conviction passed by the Trial Court is erroneous and therefore, the said findings has to be reversed. 20. In the light of the observations made above, I proceed to pass the following : ORDER (i) The Criminal Appeal is allowed. (ii) The judgment of conviction and order on sentence dated 08.01.2021 passed in Crl.A No.1622/2019 by the LX Additional City Civil and Sessions Judge, Bengaluru (CCH- 61) is set aside. - 11 - NC: 2025:KHC:12180 CRL.A No. 461 of 2021 (iii) The judgment of conviction and order on sentence dated 01.07.2019 passed in C.C No.19845/2017 by the XVIII Additional Chief Metropolitan Magistrate, Bengaluru is confirmed. (iv) The Trial Court is directed to take appropriate steps in accordance with law to execute the sentence. (v) The Registry is directed to send the records to the Trial Court forthwith. Sd/- (S RACHAIAH) JUDGE UN List No.: 19 Sl No.: 1