- 1 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO. 671 OF 2019 BETWEEN: A. NISHAR AHMED, S/O. ABUBAKKAR, AGED ABOUT 45 YEARS, RESIDING AT NO.1851, 12TH MAIN ROAD, II PHASE, RPC LAYOUT, VIJAYANAGAR, BANGALORE-560 040. …APPELLANT (BY SRI. HARISH BABU K.N., ADVOCATE (VC)) AND: KALEEMULLA, AGED ABOUT 50 YEARS, NO.115 & 116, MASJID E KAREEM MADRASA, E TALIMU AL QURAN, BACK SIDE HOUSE, 11TH CROSS, KARIMSAB LAYOUT, SRIGANDHANAGAR, PEENYA 2ND STAGE, VISHWANEEDAM POST, BANGALORE-560 091. …RESPONDENT (BY SRI. P. BASAVARAJU, ADVOCATE) THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 24.12.2018 PASSED BY THE XXII A.C.M.M., BANGALORE IN C.C.NO.30083/2017 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.138 OF THE N.I. ACT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL JUDGMENT Heard learned counsel appearing for the appellant and also learned counsel appearing for the respondent. For the sake of convenience, the parties would be referred to in terms of their status and rankings before the trial Court. 2. The factual matrix of the case of the complainant / appellant before the trial Court is that the complainant and the accused were known to each other since several years and in the month of April 2012, the accused had requested the complainant for advancing him a sum of Rs.4,00,000/- for improvement of his business and the complainant considering the said request, advanced an amount of Rs.4,00,000/- to the accused on 29.05.2012 in cash. The accused at the time of availing the said loan, had agreed to repay the same within one year from the date of its availment but, failed to do so and on persistent demands made by the complainant, he issued a cheque dated 25.03.2017 for a sum of Rs.4,00,000/-. When the cheque was presented, the same was dishonoured with an - 3 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 endorsement as "Funds insufficient" and immediately, notice was given. In spite of service of notice, no reply was given nor complied with the demand. 3. The trial Court after having considered the grounds urged in the complaint, took cognizance and secured the accused and the accused did not plead guilty and hence, the complainant examined himself as PW.1 and got marked the documents at Exhibits P1 to P6. On the other hand, the accused also examined himself as DW.1 and got marked documents at Exhibits D1 to D4 during the cross-examination of P.W.1, by confronting the said documents. However, the accused got marked Exhibit D5 dated 13.07.2017. 4. The trial Court after having considered both oral and documentary evidence comes to the conclusion that as on the date of lending the money, no document was taken and the subject matter of cheque is also after five years, that it was issued in 2017. The transaction had taken place in 2012 according to the complainant. The accused also contended that the legal notice was not served on him and also contended during the course of evidence that he was a chit member of the - 4 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 chit conducted by the complainant’s father and in that connection, cheque was given and the same was misused. The trial Court having considered the defence, comes to the conclusion that there is no legally recoverable debt and the transaction was barred by limitation. It is also contended that even payment of amount of Rs.4,00,000/- was not proved and the complainant did not have any source of income to make the payment. The trial Court also has taken note that during the cross-examination, the complainant contends that he has drawn money from the Bank and paid the amount and comes to the conclusion that for having drawn the money, no such documents are placed before the Court. The trial Court also taken note of drawing up of Rs.9,00,000/- and payment of Rs.5,00,000/- to one Sri Avinash and another Rs.4,00,000/- to one Sri Umashankar and the complainant was not left with him any amount. 5. The trial Court also discussed with regard to the service of notice, particularly to a particular address mentioned in Ex.P3 - legal notice and also took note of Ex.D5 address in respect of which the accused stated to be residing. Having considered all these materials, the trial Court comes to the - 5 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 conclusion that the complainant has not made out a case and acquitted the accused. Being aggrieved by the said judgment of acquittal, the present appeal is filed. 6. Learned counsel for the appellant vehemently contended that it is not the heavy burden on the complainant to probabalise that he had given a hand loan to the accused as observed by the trial Court when passing an order of acquittal and once cheque was placed on record, the Court has to draw the presumption and the said presumption has not been rebutted by the accused. Learned counsel also vehemently contended that the trial Court also committed an error in holding that there is no proper service as held under Section 138(b) of the Negotiable Instruments Act. Learned counsel would contend that the address mentioned in the legal notice, R.P.A.D. cover and address of the respondent is one and the same. The legal notice was received by the respondent who did not give any reply and now, he cannot contend that he was residing in house bearing No.114 and not in numbers 115 and 116. - 6 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 6(i) The learned counsel for the appellant also vehemently contended that the trial Court committed an error in acquitting the accused in spite of the material placed on record by the complainant / appellant that he has sold the property and out of the sale consideration of the said transaction, payment of Rs.4,00,000/- was made and Ex.P5 is also placed on record to show that he had entered into an agreement of sale for sale of property and out of the sale consideration only, the payment was made. 7. Per contra, learned counsel appearing for the respondent, in his arguments, vehemently contended that no ordinary person will lend the money without obtaining any document. But, in this case, no such document was obtained at the time of lending the money. Learned counsel would vehemently contend that the very subject matter of cheque Ex.P1 was given in the year 2017 and according to the complainant, the transaction was of the year 2012 and hence, the trial Court had also taken note of the same and the debt is time-barred. Learned counsel also contended that the trial Court elicited the answer from the mouth of PW.1 in the course of cross-examination and has rightly come to the conclusion - 7 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 that, both in respect of payment as well as service of notice, the amount was not lent and notice was not served and rightly acquitted the accused. 8. Having heard learned counsel appearing for the appellant and learned counsel appearing for the respondent, this Court also perused the material on record. Learned counsel for the respondent relied upon the judgment of this Court passed in Criminal Appeal No.200057 of 2016 rendered on 17.12.2020 and brought to the notice of this Court the discussion made in paragraph Nos.37 to 39 of the judgment regarding service of notice as well as payment of money and implied promise so as to attract a criminal liability under Section 138 of Negotiable Instruments Act was discussed. 9. Having heard the learned counsel appearing for the appellant/complainant and also learned counsel appearing for the respondent/accused, the points that would arise for consideration of this Court are, (i) Whether the trial Court has committed an error in acquitting the accused for - 8 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 the offence under Section 138 of the Negotiable Instruments Act? (ii) Whether it requires interference by this Court while exercising the appellate jurisdiction on re-appreciation of the material placed on record? (iii) What order? 10. Having heard the appellant/complainant’s counsel and also on perusal of the contents of the complaint, in paragraph No.4, wherein it is pleaded that both of the complainant and the accused were having acquaintance with each other and the accused approached the complainant and sought for financial assistance for improvement of his business and the complainant agreed to give hand loan of Rs.4,00,000/- to the accused with a condition to repay the said amount within one year. It is important to note that at the time of payment of Rs.4,00,000/-, no document was collected from the accused and also it is important to note that in the complaint itself, it is pleaded that the accused had undertaken to repay the amount - 9 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 within one year. But the fact is that the cheque was given in the year 2017, almost after five years. It is also to be noted that within a time frame, no demand was made and the case was filed and even the cheque at Ex.P1 relied upon is also dated 25.03.2017 and from a perusal of the material available on record, it is apparent that the loan was advanced without obtaining any document and also the case of the complainant is that the cheque was given in the year 2017 and that is also after five years. It is also important to note that, for having made the payment of Rs.4,00,000/- at a time and also answers are elicited from the mouth of P.W.1 that the amount was drawn from the Bank, but in order to prove the factum that the amount was drawn, no document is placed on record. It is also stated that the amount of Rs.5,00,000/- was given to one Avinash as well as Rs.9,00,000/- to one Umashankar after having drawn the amount of Rs.14,00,000/-. Though the complainant contends that Rs.14,00,000/- amount was given, no document was placed on record and the same is also taken note of by the trial Court. 11. With regard to the service of notice is concerned, the trial Court relied upon Ex.P3 and the same is in respect of - 10 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 house Nos.115 and 116 and also the bank statement at Ex.P4 is also placed on record which also does not disclose about the complainant having made payment to the accused by drawing the money from the bank. The trial Court also while appreciating the material on record taken note of both the oral and documentary evidence on record. 12. No doubt, learned counsel appearing for respondent relied upon the judgment of this Court in The Bidar Urban Co- operative Bank Ltd., v. Mr. Girish1 and also discussed with regard to the payment of the amount and also unconditional undertaking or promise in writing either expressly or impliedly so as to attract the criminal offence under Section 138 of Negotiable Instruments Act and also discussed the judgment of the Hon’ble Apex Court in Sasseriyal Joseph v. Devassia2 case, wherein it is held that the cheque given in discharge of a time barred debt will not constitute a promise in writing not even an implied promise so as to attract a criminal liability under Section 138 of Negotiable Instruments Act. 1 Criminal Appeal No.200057/2016 dated 17.12.2020 2 2001 Crl.L.J. 24 - 11 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 13. It is also important to note that the postal acknowledgment is placed on record to show service of notice and there is no proper service of notice and also with regard to house Nos.114, 115 and 116, the trial Court elaborately discussed and rightly contended by the learned counsel for the respondent that if notice was served, the complainant ought to have produced the acknowledgment for having served the notice. Learned counsel also vehemently contended that the trial Court in detail taken note of the contents of the documents at Exhibits D1 to D4 and also the agreement of sale produced by the complainant before the Court in terms of Ex.P5 and so also the accused placed on record the document at Ex.D5 with regard to the proof of address and though the complainant placed on record the certified copy of agreement of sale which is marked at Ex.P5 and Ex.P6 - photo and no document of sale executed in pursuance of the sale agreement at Ex.P5 is placed on record before the trial Court. 14. Having considered the reasons given by the trial Court, the trial Court also, while answering all the points as negative, elaborately discussed the same in respect of the source of income as well as drawing of amount from the Bank - 12 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 and no such material is placed on record to show that the amount was drawn by the complainant from the Bank. It is the submission of learned counsel for the appellant that the amount was drawn from the Bank and also PW.1 was under confusion with regard to payment of Rs.9,00,000/-, whether out of the said amount of Rs.9,00,000/-, an amount of Rs.4,00,000/- was given to the accused or not. But admission is very clear that out of Rs.9,00,000/-, the amount was given to Umashankar and Avinash. When the trial Court discussed the material on record and particularly when the transaction had taken place in the year 2012, the complainant did not insist the accused to execute a document and the amount of Rs.4,00,000/- was given without any documentary proof and apart from that, cheque was also given after five years and the same is also barred by limitation, I do not find any error committed by the trial Court in acquitting the accused, after having taken note of both question of fact and question of law, while appreciating both oral and documentary evidence on record. Nothing is also elicited in the cross-examination of DW.1, during the course of cross-examination, with regard to payment is concerned. It is also the contention of the accused that he was having a chit - 13 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 transaction with the father of the complainant. In that connection, he gave a cheque and the same was misused. Even a suggestion was made during the course of cross- examination of PW.1 that the document at Ex.P5 was created for the purpose of the case and the same was denied. Hence, I do not find any error in the judgment of the trial Court since both oral and documentary evidence has been discussed in detail. 15. The appellant has not made out any case to reverse the finding of the trial Court. The trial Court judgment can be reversed if any perversity in the judgment of the trial Court is found and if the material on record is not appreciated properly by the trial Court, the Appellate Court can reverse the same. If there are two opinions with regard to acquitting of the accused is concerned, the finding of acquittal recorded by the trial Court is one of them, the Appellate Court should uphold the trial Court decision. The benefit of doubt always goes in favour of the accused. Hence, there is no merit in this appeal. Accordingly, I answer the point Nos.(i) and (ii) in “negative”. - 14 - NC: 2025:KHC:16205 CRL.A No. 671 of 2019 In view of the discussions made above, I pass the following: ORDER The Criminal Appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE Bss List No.: 1 Sl No.: 51