- 1 - NC: 2025:KHC:2652 CRL.A No. 252 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 252 OF 2015 BETWEEN: SRI R. LAKSHMAN S/O.LATE RAMASWAMY AGED 57 YEARS R/AT No.419, 14TH CROSS LIC COLONY, SRIRAMAPURA 2ND STAGE MYSORE – 570 023. …APPELLANT (BY SRI SHANTKUMAR N, ADVOCATE FOR MURUGESH V CHARATI, ADVOCATE) AND: SRI R. CHANDRAN S/O RAJU GOWDA AGED 61 YEARS R/AT No.-109/2B DEVAIAHNA HUNDI MAIN ROAD SRIRAMAPURA 2ND STAGE MYSORE- 570 023. …RESPONDENT (BY SRI G RAVINDRA BABU, ADVOCATE – ABSENT) THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED 10.10.2013 PASSED BY THE I ADDL. I CIVIL JUDGE & JMFC, MYSORE, IN C.C.No.1292/09 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC., Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:2652 CRL.A No. 252 of 2015 THIS APPEAL COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT 1. This appeal is filed by the complainant challenging the judgment of acquittal dated 10.10.2013 passed in C.C. No. 1292/2009 by the I Additional Civil Judge and JMFC, Mysuru whereunder the respondent - accused has been acquitted for offence under Section 138 of the Negotiable Instruments Act (hereinafter for the sake of brevity referred to as the `N.I. Act’). 2. Brief facts of the complainant’s case is, that the complainant and accused are old friends and in the month of January, 2007 the respondent - accused requested the complainant to lend loan of Rs.18,00,000/- to meet the expenses relating to construction of the house and also to clear the debts. After one month, the respondent - accused repaid Rs.20,000/- and assured that the balance amount would be paid as early as possible. The respondent - accused did not pay the amount as agreed. When the - 3 - NC: 2025:KHC:2652 CRL.A No. 252 of 2015 complainant insisted the accused to repay the balance amount, the accused had issued cheque bearing No. 560490 for Rs.17,80,000/- dated 21.02.2009 of ICICI Bank Limited, Mysuru. The complainant presented the cheque and the same came to be dishonoured with shara “insufficiency of funds” in the account of the accused. The complainant got issued legal notice to the respondent - accused. The respondent - accused sent reply to the said notice but, did not pay the cheque amount. Therefore, the appellant – complainant filed a private complaint against the respondent – accused for offence under Section 138 of the N.I. Act. Learned Magistrate has taken cognizance of the offence and registered C.C. No. 1292/2009 against the respondent - accused for offence under Section 138 of the N.I. Act. Plea has been recorded. The complainant, in order to prove his case, has examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.11. Statement of the respondent - accused has been recorded under Section 313 of Cr.P.C. The respondent - accused has examined himself as D.W.1 and got marked Ex.D.1 to Ex.D.20. The trial Court after - 4 - NC: 2025:KHC:2652 CRL.A No. 252 of 2015 hearing arguments on both sides formulated points for consideration and passed the impugned judgment of acquittal. Said judgment of acquittal has been challenged by the complainant in this appeal. 3. Heard learned counsel for appellant – complainant. Learned counsel for respondent – accused is absent. 4. Learned counsel for appellant would contend that the respondent - accused has admitted his signature on the cheque - Ex.P.1 and therefore, a presumption under Section 139 of the N.I. Act requires to be drawn. Said presumption raised under Section 139 of the N.I. Act has not been rebutted by the respondent - accused. The contention of the respondent - accused that the cheque – Ex.P.1 has been issued by him to one Sri. Tilakramu as security has not been established by examining the said Sri. Tilakramu and his wife Smt. Renuka. The respondent - accused has failed to rebut the presumption. The suit filed by the respondent - accused in O.S. No.1292/2009 is subsequent to the filing of the present complaint by the - 5 - NC: 2025:KHC:2652 CRL.A No. 252 of 2015 complainant and therefore, it is an after thought. To create record and defence said suit has been filed. Without considering these aspects learned Magistrate has erred in passing the impugned judgment of acquittal. With this he prayed to allow the appeal and convict the respondent - accused for offence under Section 138 of the N.I. Act. 5. Having heard the learned counsel for appellant and on perusal of the impugned judgment of acquittal and trial Court records the following point arises for consideration in this appeal. “Whether the learned Magistrate erred in acquitting the respondent - accused for offence under Section 138 of the N.I. Act?” 6. My answer to the above question is in the negative for the following reasons: It is the case of the complainant that the respondent had borrowed Rs.18,00,000/- from him in January, 2007 and he repaid Rs.20,000/- within one month thereafter. It is the further case of the complainant that the respondent - 6 - NC: 2025:KHC:2652 CRL.A No. 252 of 2015 - accused had issued a cheque – Ex.P.1 dated 21.02.2009 bearing No. 0560490 for Rs.17,80,000/- for making payment of the balance amount of the debt. The respondent - accused has admitted his signature on the cheque – Ex.P.1. Therefore, a presumption has been drawn that the said cheque has been issued for making payment of legally enforceable debt. Said presumption is a rebutable presumption. It is for the respondent - accused to rebut the said presumption. 7. The defence of the respondent - accused is that he had issued a blank signed cheque to one Sri. Tilakramu and his wife Smt. Renuka with regard to a sale transaction between his son and the said Sri. Tilakramu in the year 2007 by mentioning the date as 21.02.2007 and the said cheque has been misused by the complainant in collusion with the said Sri. Tilakramu by altering the date mentioned in the said cheque. 8. On bare perusal of the cheque – Ex.P.1 it is clearly visible that the year in the said cheque has been - 7 - NC: 2025:KHC:2652 CRL.A No. 252 of 2015 altered from 2007 to 2009. The numerical `7’ has been altered to numerical `9’. Said cheuqe has been sent for expert opinion and the report dated 11.04.2013 of the expert indicate that 3 different inks were observed in the altered portion of the date and the same is evident that the last part of the date has been materially altered. Said aspect fortifies the defence of the respondent - accused that the cheque has been issued by him in the year 2007 and it has been misused by the said Sri. Tilakramu and the complainant altering the year in the said cheque. As there is an allegation that there is collusion between the Sri. Tilakramu and the complainant, the question of respondent - accused examining the said Sri. Tilakramu to establish his defence does not arise. 9. The respondent - accused and the complainant were partners and the partnership deed executed between them is dated 17.06.1998 which is at Ex.P.10. The respondent - accused and the appellant – complainant were not in cordial terms after the year 2004 as the respondent - accused had filed a complaint against the appellant – - 8 - NC: 2025:KHC:2652 CRL.A No. 252 of 2015 complainant. When the relationship between the appellant and the respondent is not cordial, there is no question of borrowing loan and issuing cheque for repayment of the amount borrowed. More so, the respondent accused has filed a suit in O.S. No. 1615/2009 against the appellant – complainant, Sri. Tilakramu and his wife Smt. Renuka seeking return of the cheque which is at Ex.P.1. Considering all these aspects the respondent - accused has rebutted the presumption raised under Section 139 of the N.I. Act. As the presumption has been rebutted, onus is on the appellant – complainant to prove actual lending of loan amount and issuance of cheque – Ex.P.1 for making repayment of the loan amount. The appellant – complainant has not proved that he had lent Rs.18,00,000/- to the respondent - accused during January, 2007. Even the appellant – complainant has not produced any documents to show how he got cash of Rs.18,00,000/- even though he has produced copy of the sale deed which is at Ex.P.9 as the amount of sale consideration has been credited to his bank account. Considering all these aspects learned - 9 - NC: 2025:KHC:2652 CRL.A No. 252 of 2015 Magistrate has rightly held that the respondent - accused has not committed any offence under Section 138 of the N.I. Act. Said judgment of acquittal passed by the learned Magistrate is a reasoned judgment. There are no grounds made out for allowing the appeal and setting aside the impugned judgment of acquittal. 10. In the result, the appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE LRS List No.: 1 Sl No.: 52