- 1 - NC: 2025:KHC:747 CRL.A No. 422 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 422 OF 2014 BETWEEN: RAMESHA S/O KRISHNAPPA AGED ABOUT 54 YEARS PLUMBER, R/A H.NO.3036, V P BORE, HUNSUR TOWN MYSORE DISTRICT – 571 105. …APPELLANT (BY SRI RAJANNA, ADVOCATE) AND: SMT. LAKSHMAMMA T W/O T HOMBEGOWDA AGED ABOUT 48 YEARS WORKING AS COOLIE AT PUBLIC BOYS PRE-METRIC HOSTEL BANNIKUPPE VILLAGE & POST KASABA HOBLI, HUNSUR TALUK MYSORE DISTRICT – 571 105. …RESPONDENT (BY SMT. ROJA M R, ADVOCATE FOR SRI MAHANTESH S HOSMATH, ADVOCATE) THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C. PRAYING TO SET ASIDE THE ORDER DATED 04.04.2014 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, HUNSUR IN C.C.No.326/2011 - 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:747 CRL.A No. 422 of 2014 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 04.04.2014 passed in C.C. No. 326/2011 by the Senior Civil Judge and JMFC, Hunsur, whereunder the respondent - accused has been acquitted for offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as the `N.I. Act’). 2. Case of the complainant in brief is, that the respondent - accused had borrowed a sum of Rs.2,00,000/- from the complainant for her legal necessity and executed an On Demand Promisory Note and consideration receipt agreeing to repay the same with interest at 2% per month. Inspite of repeated requests and demands, the respondent - accused did not pay the amount borrowed and therefore, the complainant got issued legal notice on 04.10.2010 and it has been served on the respondent - accused on 07.10.2010. After receipt - 3 - NC: 2025:KHC:747 CRL.A No. 422 of 2014 of the said notice, the respondent - accused approached the complainant and issued a cheque bearing No. 083077 dated 23.10.2010 drawn on State Bank of Mysuru, Hunsur Branch for a sum of Rs.2,52,000/-. Said cheque, on presentation, came to be dishonoured for insufficient funds. The complainant got issued legal notice on 20.11.2010 and it has been served on the respondent - accused. As the respondent - accused did not pay the cheque amount, the complainant has filed a complaint. After recording the sworn statement, the learned Magistrate has taken cognizance against the respondent - accused for offence under Section 138 of N.I. Act and a case came to be registered in C.C. No. 326/2011. Plea of the respondent - accused came to be recorded. The complainant, in order to prove his case, examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.12. Statement of the respondent - accused came to bee recorded under Section 313 of Cr.P.C. The respondent - accused examined herself as D.W.1 and examined one witness as D.W.2 and got marked one document as Ex.D.1. After - 4 - NC: 2025:KHC:747 CRL.A No. 422 of 2014 hearing arguments on both sides, learned Magistrate 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 and learned counsel for respondent - accused. 4. Learned counsel for appellant would contend that the respondent – accused, for meeting the medical expenses of her son, had borrowed Rs.2,00,000/- agreeing to pay interest at 2% per month and executed an On Demand Promisory Note and consideration receipt. In order to re-pay the same, she had issued Ex.P.1 – cheque and it came to be dishonoured for want of funds. Evidence of P.W.1 itself prove the said lending and receipt of amount by the respondent - accused. The respondent - accused has not given any reply to the legal notice issued by the complainant. As the cheque is admitted, a presumption under Section 139 of the N.I. Act is required to be raised. Without considering all these aspects, - 5 - NC: 2025:KHC:747 CRL.A No. 422 of 2014 learned Magistrate has erred in passing the impugned judgment of acquittal. With this, he prayed to allow the appeal. 5. Learned counsel for respondent - accused would contend that considering the evidence on record learned Magistrate has rightly acquitted the respondent - accused. She has supported the reasons assigned by the trial Court. With this she prayed for dismissal of the appeal. 6. Having heard the learned counsel for the appellant and learned counsel for the respondent – accused this Court has perused the impugned judgment of acquittal and other material placed on record. 7. Considering the grounds urged the following point arises for consideration in this appeal. Whether the trial Court has erred in acquitting the respondent - accused for offence under Section 138 of N.I. Act? 8. My answer to the above point is in the negative for the following reasons: - 6 - NC: 2025:KHC:747 CRL.A No. 422 of 2014 It is the case of the complainant that at the time of borrowing the respondent - accused had executed an On Demand Promisory Note and consideration receipt. P.W.1 has stated the same in her evidence. The complainant has also stated the same in the two notices got issued by him to the respondent – accused, one dated 04.10.2010 (Ex.P.2) and another dated 20.11.2010 (Ex.P.7). In the complaint – Ex.P.1 also the complainant has stated regarding the respondent - accused executing On Demand Promisory Note and consideration receipt for Rs.2,00,000/-. The complainant has not produced the said On Demand Promisory Note and consideration receipt to establish the borrowing of money by the respondent - accused. P.W.1 in his chief examination has also not stated as to why he has not produced the On Demand Promisory Note and consideration receipt. P.W.1 in his cross-examination has stated that the respondent - accused took back the On Demand Promisory Note and consideration receipt after issuing the cheque – Ex.P.1. The complainant ought to have stated the same in his - 7 - NC: 2025:KHC:747 CRL.A No. 422 of 2014 complaint – Ex.P.1 and also in the legal notice – Ex.P.7. Said statement of the complainant regarding returning of On Demand Promisory Note and consideration receipt to the respondent - accused appears to be an after thought. As the On Demand Promisory Note and consideration receipt are not produced by the complainant, he has failed to establish lending of Rs.2,00,000/- by him to the respondent - accused. 9. The respondent - accused has taken up the defence that one Yashodamma was running a chit transaction and she has issued a signed cheque to the said Yashodamma as a security as she was a member of the said chit transaction. In order to establish the same, the respondent - accused has examined herself as D.W.1 and also got examined one witness as D.W.2. D.W.1 and D.W.2 have specifically stated regarding the respondent - accused issuing a cheque as security to Yashodamma in respect of a chit transaction. The respondent - accused has raised a probable defence and it has been established by the evidence of D.W.1 and D.W.2. Therefore, - 8 - NC: 2025:KHC:747 CRL.A No. 422 of 2014 presumption raised under Section 139 of the N.I. Act has been rebutted by the respondent - accused. The appellant – complainant has failed to prove the alleged lending of Rs.2,00,000/- to the respondent - accused and the respondent - accused issuing cheque – Ex.P.1 in discharge of legally enforceable debt. Considering all these aspects learned Magistrate has rightly acquitted the respondent - accused for offence under Section 138 of the N.I. Act by a reasoned judgment. There are no grounds to interfere with the well reasoned judgment passed by the learned Magistrate. 10. In the result, the following; O R D E R The appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE LRS List No.: 1 Sl No.: 42