1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.160/2015 BETWEEN: 1 . SMT. SHOBHA K., D/O LATE KRISHNEGOWDA AGED ABOUT 30 YEARS R/A SHIVAPPA EXTENSION PERIYAPATNA TOWN MYSURU DISTRICT-571 107. … APPELLANT (BY SRI. B.ROOPESHA, ADVOCATE) AND: 1 . AZAGAR PASHA S/O LATE MOHAMMED MUSTHAF AGED ABOUT 48 YEARS R/A BYLAKUPPE VILLAGE HARANAHALLI HOBLI PERIYAPATNA TALUK MYSURU DISTRICT-571104. … RESPONDENT (RESPONDENT IS SERVED AND UNREPRESENTED) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 2.8.2013 PASSED BY THE CIVIL JUDGE AND JMFC, PERIYAPATNA, IN C.C.NO.69/2012 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT. 2 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 07.04.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV JUDGMENT 1. Heard the learned counsel for the appellant. This Court has issued notice to respondent and respondent did not choose to appear and contest the matter. 2. This appeal is filed against the judgment of acquittal passed by the Trial Court in C.C.No.69/2012 dated 02.08.2013 on the file Civil Judge and JMFC, Periyapatna. 3. The factual matrix of case of prosecution is that accused is well known to the complainant and for the legal necessity, he has borrowed sum of Rs.2,50,000/- from the complainant on 06.06.2011 and for security of the said amount and repayment issued a Cheque bearing No.035684. When the Cheque was presented, it was returned with an endorsement ‘Insufficient Funds’ and 3 hence, the complainant approached the accused to pay the amount and he did not repay the same and hence, issued legal notice on 06.11.2007 and the said notice was returned stating that the accused did not receive the same and the same was duly served to the accused and he did not given any reply and hence, filed the complaint and hence, cognizance was taken and secured the accused and accused did not plead guilty and hence, the complainant examined himself as P.W.1 and got marked Ex.P1 to Ex.P5, Ex.P.5(a). The accused did not choose to lead defense evidence. The Trial Court having considered material on record, taken note of admission on the part of complainant P.W.1. During the course of cross-examination suggestion was made that no notice was given and the same was denied and suggestion was made that he was not having capacity to make the payment of Rs.2,50,000/-. The Trial Court having taken note of evidence of P.W.1 comes to the conclusion that whether the accused issued Ex.P1 Cheque for 4 discharge of loan borrowed from the complainant or not and though the accused did not lead his defense evidence, it is the duty of the complainant to prove her case beyond reasonable doubt and case of complainant creates doubt about correction made in the Cheque and there is no signature of the accused on the corrections and hence, dismissed the complainant. Being aggrieved by the order of acquittal, the present appeal is filed before this Court. 4. The main contention of the counsel appearing for the appellant that the Trial Court committed an error in acquitting the accused and there is no any such correction and there is no evidence about insertion of the word and in the words also it is clearly written in the Cheque as Rs.2,50,000/- and may be slight difference in mentioning the alphabet ‘2’ and the same is not a correction and the Trial Court committed an error in coming to the conclusion that there is a correction that too without any material on record, the order was passed on presumption and 5 assumption. If any doubt creates when the bank issued separate endorsement in respect of the same, but the bank has issued an endorsement stating that insufficient fund and Cheque was returned with an endorsement that there is a correction and accused also not disputed the issuance of cheque and Trial Court committed an error in applying its mind and committed an error in coming to such a conclusion and no reasoned order has been passed and except extracting the evidence of P.W.1, only in six lines comes to the conclusion that the very case of complainant is doubtful when the Cheque was not disputed. Hence, it requires interference of this Court. 5. Having heard the appellant’s counsel and also on perusal of judgment of the Trial Court and the documents placed on record, the point that would arise for consideration of this Court are: 1) Whether the Trial Court committed an error in acquitting the accused and whether it 6 requires interference of this Court exercising the appellate jurisdiction? 2) What Order? 6. Having heard the appellant’s counsel and also on perusal of material on record, the complainant examined himself as P.W.1 and also in the evidence he re-iterated the averments made in the complaint and document of Ex.P1 was placed on record and having perused the Cheque Ex.P1 dated 06.06.2011, the amount was mentioned in the words and also on perusal of Cheque, no any insertion or correction as held by the Trial Court. It is also important to note that if any such correction and not given the Cheque ought to have led defense evidence and no such defense evidence was led by the accused. In the cross-examination of P.W.1 also P.W.1 categorically says that having acquaintance with accused from last 5 years. The P.W.1 says that having income of Rs.500/- per day and even suggestion was made to the complainant that after having 7 deducted the expenses the complainant can save only Rs.200/- and the same was denied by the complainant and categorically says that contents were already got it written by the accused herself on the Cheque. It is suggested that no notice was given and the same was categorically denied. In the further cross-examination also accused was selling white kerosene and hence known to the complainant and only in the further cross-examination suggestion was made that a correction was made and categorically says that the accused only got it return the amount in the Cheque and even nothing is elicited in the cross-examination of P.W.1 with regard to the correction is concerned and even in the 313 statement of accused, nothing is stated with regard to the correction is made in the Cheque and that is not the defense of the accused except making the suggestion in further cross-examination. Even nothing is elicited in the cross-examination of P.W.1 with regard to the correction is concerned. Even in the 313 statement of the accused, 8 nothing is stated with regard to the correction made in the Cheque and that is not the defense of the accused except making the suggestion. In further cross-examination of P.W.1 that too at the first instance, only on recalling of the witness P.W.1, the said suggestion was given and the P.W.1 clarified the same that the said wordings used in the Cheque was got it returned by the accused himself and though witness says that two signatures are made in the Cheque and got elicited the same from the P.W.1 and there are no two signature on the Ex.P1. The Trial Court fails to take note of this fact into consideration. 7. Having considered both oral and documentary evidence placed on record and also records available on record and also the admission on the part of the accused in the 313 statement nothing is stated with regard to issuance of Cheque and denying the same and even not stated anything about corrections except making further cross- examination wherein suggestion was made and the 9 reasoning given by the Trial Court though observed that accused did not lead any defense evidence but comes to the conclusion that it is the duty of the complainant to prove her case and when the complainant placed on record that is Cheque which was not disputed and also the observation made by the Trial Court that the complainant’s case creates doubtful is erroneous and though he extracted the evidence of P.W.1 and in the cross-examination of P.W.1 also nothing is extracted to disbelieve the case of the complainant, question of doubting the complainant does not arise and also on bare perusal of Cheque, there was no any corrections and in the words, it is categorically stated that an amount of Rs.2,50,000/- and the observations made by the Trial Court that there is no signature of the accused on the corrections and when there was no any corrections on the Cheque and only noting the same as ‘2’ and it is written like that and there was no any corrections. Hence, the observations made by the Trial Court is erroneous and Trial 10 Court committed an error in acquitting the accused even in the absence of defense evidence and when there was no any denial of issuance of Cheque, ought to have invoked Section 139 of N.I Act and there is a presumption and there is no any probable defense and in the absence of cogent evidence, there is no any preponderance of probability, question of acquitting the accused does not arise. The Trial Court committed an error in acquitting the accused and hence, it requires interference of this Court. Hence, I answer the point as ‘Affirmative’. 8. In view of the discussions made above, I pass the following: ORDER i) The Criminal Appeal is allowed. ii) The impugned judgment of acquittal order passed in C.C.No.69/2012 dated 02.08.2013 on the file of Civil Judge and JMFC, Periyapatna is set-aside. Consequently, the respondent is directed to pay the compensation amount of Rs.2,60,000/- (Rupees Two Sixty Thousand only) 11 and out of that Rs.2,50,000/- is payable to the appellant and remaining Rs.10,000/- shall vest with the State. iii) If the respondent fails to make payment within a period of two months, he shall undergo simple imprisonment for a period of six months. Sd/- (H.P. SANDESH) JUDGE RHS