- 1 - NC: 2025:KHC:2474 CRL.A No. 497 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 497 OF 2015 BETWEEN: SRI PUNDAREEKAKASHA B R AGED ABOUT 58 YEARS, SON OF LATE B R RANGAPPA RESIDING AT No.7, NAGAPPA STREET MAIN ROAD PALACE GUTTAHALLI, BANGALORE - 560 003. …APPELLANT (BY SRI VENKATRAMANA M K, ADVOCATE) AND: SMT. K VIJAYALAKSHMI AGED ABOUT 51 YEARS WIFE OF SHIVAKUMAR S.D.A ADMINISTRATIVE SECTION, BANGALORE RURAL ZILLA PANCHAYATH, K G ROA,D BANGALORE - 560 009. …RESPONDENT (BY SRI. H ABHISHEK GOWDA, ADVOCATE – ABSENT) THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED:26.2.2015, PASSED BY THE XL ACMM, BANGALORE (S.C.H.NO.14), IN C.C.No.13157/13 - 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:2474 CRL.A No. 497 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 This appeal is filed by the appellant –complainant challenging the judgment of acquittal dated 26.02.2015 passed in C.C.No.13157/2013 by the XL Additional Chief Metropolitan Magistrate, Bengaluru City, wherein the respondent –accused has been acquitted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act” for brevity). 2. The case of the complainant’s in brief is as under: The husband of the respondent –accused i.e. Sri Shivakumar is one of the friends of the complainant and acquainted him with since last 05 years. The respondent –accused is Government employee and during third week of October -2012, she sought - 3 - NC: 2025:KHC:2474 CRL.A No. 497 of 2015 financial help from the complaiannt in order to meet out her urgent necessities. The respondent –accused sought for a hand of Rs.1,50,000/- assuring to the complainant that that she will repay the same within three months. Accordingly, the appellant – complainant has paid Rs.1,50,000/- by way of cash on 28.10.2012 to the respondent –accused at his residence. The respondent –accused after receipt of Rs.1,50,000/- has executed an on demand promissory note and consideration receipt for having received a sum of Rs.1,50,000/- on 28.10.2012. The respondent –accused in order to repay the said amount barrowed has issued the cheque bearing No.780257 dated 01.02.2013 drawn on Bank of Maharastra, Gandhinagar Branch, Bengaluru infavour of the complainant and took back on demand promissory note and consideration receipt. The complainant presented the said cheque for collection and same - 4 - NC: 2025:KHC:2474 CRL.A No. 497 of 2015 came to be dishounoured for a reason “Payment stopped by Drawer”. The complainant got issued notice on 15.03.2013. The said notice has been served on the respondent –accused. The respondent – accused did not repay the cheque amount. Therefore, the appellant –complainant has filed private complaint against the respondent –accused for offence punishable under Section 138 of the N.I Act. 3. The learned Magistrate has taken cognizance against the respondent –accused and registered C.C.No.13157/2013 for the offence punishable under Section 138 of N.I. Act. The plea of the respondent has been recorded. The complainant in order to prove his case has examined himself as P.W.1 and got marked documents as Ex.P1 to P6. The statement of the respondent –accused came to be recorded under Section 313 of Cr.P.C. The respondent –accused has examined himself as D.W.1 and got - 5 - NC: 2025:KHC:2474 CRL.A No. 497 of 2015 marked three documents as Ex.D1 to D3. Learned Magistrate after hearing arguments on both side has formulated points for consideration and passed the impugned judgment of acquittal. The said judgment of acquittal has been challenged by the complainant in this appeal. 4. Heard learned counsel for the appellant – complainant. The learned counsel for the respondent – accused is absent. 5. Learned counsel for the appellant– complainant would contend that the respondent– accused has admitted her signature on Ex.P1 –Cheque and it is drawn on her account. Therefore, the presumption requires to be drawn under Section 139 of the N.I. Act. The said presumption has not been rebutted. The trial Court has erred in holding that the appellant –complainant has no financial capacity to lend money of Rs.1,50,000/- to the respondent – - 6 - NC: 2025:KHC:2474 CRL.A No. 497 of 2015 accused. The respondent –accused even after receipt of demand notice –Ex.P3 and issuing reply to the said notice as per Ex.P6 has not choosen to take any action against the appellant –complainant for misusing her cheque. The said presumption raised under Section 139 of the N.I. Act has not been rebutted by the respondent –accused. Without considering all these aspects, learned Magistrate has erred in passing the impugned judgment of acquittal. With these, he prays to allow the appeal and convict the respondent – accused for offence punishable under Section 138 of N.I Act. 6. Learned counsel for the appellant – complainant has placed reliance on the following decisions 1)Tedi Singh Vs Narayana Dass Mahant1 2)APS Forex Services(P) Ltd Vs Shakthi International Fashions Liners and Another2 3)Laxmi Dyechem Vs State of Gujarat and Ohers3 1 Reported in Crl.A.No.362/2022 dated 07.03.2022 2 Reported in (2020) 12 SCC 724 - 7 - NC: 2025:KHC:2474 CRL.A No. 497 of 2015 4)Uttam Ram Vs Devinder Singh Hudan Another4 5)Devaraj Vs Balappa5 6)M/s Shree Daneshwari Traders Vs Sanjay Jain and Anr6 7)Kalamani Tex And Another Vs P.Balasunbramanian7 8)Kishan Rao Vs Shankargouda8 9)T.P. Murugan (dead) Thr Lrs Vs Bojan Posa Nandhi9 10)Rohitbhai Jivanlal Patel Vs State of Gujarat and Anr10 11)Rajaram (since deceased) Vs Maruthachalam11 7. Having heard learned counsel, this Court has perused impugned judgment and trial Courts records. Considering grounds urged, the following point arises for consideration. “Whether the trial Court has erred in acquitting the respondent –accused for offence punishable under Section 138 of N.I Act?” My answer to the above point is in the negative for the following reasons. 3 Reported in (2012) 13 SCC 375 4 Reported in 2019 (2) Kar. LR 717 (SC) 5 Reported in II (2023) BC 72 (KAR) 6 Reported AIR 2019 SC 4003 7 Reported (2021) 5 SCC 283 8 Reported AIR 2018 SC 3173 9 Reported AIR 2018 SC 3601 10 Reported AIR 2019 SC 1876 11 Reported I (2023) BC 248 (SC) - 8 - NC: 2025:KHC:2474 CRL.A No. 497 of 2015 The respondent –accused has admitted her signature on Ex.P1 –Cheque which has been drawn on her account. As respondent –accused has admitted her signature on the Cheque the presumption requires to be raised that the said cheque has been issued for making payment of legally enforceable debt. The said presumption is rebuttable presumption. 8. It is specific case of the appellant – complainant that at the time of barrowing money, the respondent –accused has executed on demand promissory note and consideration receipt. It is further case of the appellant –complainant that while issuing Ex.P1 –Cheque, the respondent –accused demanded to return on demand promissory note and consideration receipt and therefore, he has returned them to the respondent –accused. The appellant – complainant is law graduate he has registered himself as an advocate. As complainant is law graduate he - 9 - NC: 2025:KHC:2474 CRL.A No. 497 of 2015 knows consequences of returning on demand promissory note unless the debt is repaid. Even the photocopy of alleged on demand promissory note and consideration receipt are not retained by the appellant –complainant. It is specific defence of the respondent –accused that she lost her two signed cheques kept in her bag during December -2012 when she went to shop and she filed complaint regarding the same to the Police as per EX.D1 and police have issued acknowledgement in that regard as per Ex.D3. The respondent –accused has also intimated regarding loss of cheque to her Banker by letter dated 20.12.2012. The respondent –accused by her oral evidence and documents -Ex.D1 to D3 has rebutted presumption that cheque –Ex.P1 has been issued to the appellant – complainant for making payment of legally enforceable debt. - 10 - NC: 2025:KHC:2474 CRL.A No. 497 of 2015 9. Cheque –Ex.P1 is dated 01.02.2013. It is case of the appellant –complainant that when he demanded repayment of amount barrowed, the respondent –accused has issued cheque on 01.02.2013. Prior to the said date i.e.01.02.2013, the respondent –accused has given intimation to her Banker regarding loss of signed cheques and also filed complaint to the Police on 20.12.2012 as per Ex.D1 and D2. The said complaint and intimation to the Banker is prior to the date of cheque i.e. 01.02.2013. It is not suggested to DW.1 that she had plan earlier and as per that plan she filed complaint to police as per Ex.D1 and given intimation to the Banker as per Ex.D2 and thereafter, she issued cheque as per EX.P1 on 01.02.2013. Considering all these aspects, the case of the complainant is that he returned on demand promissory note and consideration receipt while he receiving Ex.P1 –Cheque appears to be a cock and bull - 11 - NC: 2025:KHC:2474 CRL.A No. 497 of 2015 story. As respondent –accused rebutted the presumption raised under Section 139 of the N.I Act, the onus is on the appellant –complainant to establish the lending of money and issuance of cheque towards legally enforceable debt. The complainant failed to prove the alleged lending of money and issuance of cheque for making payment of said debt. 10. Considering all these aspects, learned Magistrate has rightly acquitted the respondent – accused for offence punishable under Section 138 of N.I Act by well reasoned judgment. There are no grounds for allowing the appeal. 11. In the result, the appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DSP List No.: 1 Sl No.: 53