- 1 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO. 616 OF 2014 BETWEEN: SRI. M. NAVEENKUMAR S/O N. MUDDANA AGED ABOUT 31 YEARS R/O NO.42, NAVEEN NILAYA 2ND MAIN ROAD, ATTIGUPPE VIJAYANAGAR, II STAGE BANGALORE-560 040 …APPELLANT (BY SRI. S.B. HALLI, ADVOCATE) AND: SRI. K.C. GANGAIAH S/O CHENNAIAH AGED ABOUT 35 YEARS R/O KOLIHALLI VILLAGE PUTTAIANAPALYA, HIREHALLI POST TUMKUR TQ & DIST-572 101 …RESPONDENT (BY SRI. RAVICHANDRA T. C, ADVOCATE) THIS CRL.A. IS FILED U/S. 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:2.7.14 PASSED BY THE P.O., FTC-II, BANGALORE IN CRL.A.NO.39/14 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT AND CONFIRM THE ORDER DATED:1.1.14 PASSED BY THE XVI ADDL.C.M.M., BANGALORE IN C.C.NO.15432/2008. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT 1. This appeal is filed by the appellant – complainant challenging the judgment dated 02.07.2014 passed in Crl.A.No.39/2014 by the Presiding Officer, Fast Track Court – II, Bengaluru City, wherunder, conviction of the respondent – accused passed in C.C.No.15432/2008 by the judgment dated 01.01.2014 by the XVI Additional Chief Metropolitan Magistrate, Bengaluru for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as “N.I.Act”) has been reversed and the respondent – accused has been acquitted of the offence under Section 138 of the N.I.Act. 2. Case of the appellant – complainant in brief is as under; The appellant – complainant and the respondent – accused were known to each other. The respondent – accused was working under the complainant’s brother in his S.T.D and Xerox shop situated at Attiguppe, - 3 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 Vijayanagar, Bengaluru. The respondent – accused approached the appellant - complainant on 01.10.2007 and availed hand loan of Rs.80,000/- to meet his urgent and immediate financial and legal commitments. The appellant - complainant paid hand loan of Rs.80,000/- and the respondent – accused promised to repay the said loan within five months. The appellant - complainant approached the respondent – accused for repayment of the amount borrowed and the respondent – accused had issued a cheque bearing No.986591 dated 07.03.2008 for Rs.80,000/-. The appellant - complainant presented the said cheque for encashment. The said cheque has been returned dishonoured on 06.05.2008 with an endorsement ‘insufficiency of funds’ in the account of the respondent – accused. The appellant – complainant got issued the legal notice to the respondent – accused on 12.05.2008 and the same has been duly served on the respondent – accused. The respondent – accused has not paid the cheque amount. Therefore, the appellant - complainant has filed a private complaint against the respondent – accused for the - 4 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 offence under Section 138 of the N.I.Act. The learned Magistrate took cognizance and registered a case in C.C.No.15432/2008 against the respondent – accused for the offence under Section 138 of the N.I.Act. The plea of the respondent – accused has been recorded. The appellant – complainant in order to prove his case, got examined himself as PW1 and got marked Ex.P1 to P7. The statement of the respondent – accused has been recorded under Section 313 of Cr.P.C. The respondent – accused examined himself as DW1 and got marked Exs.D1 to D4. After hearing the arguments on both sides, the learned Magistrate has formulated the points for consideration and passed the judgment dated 01.01.2014 convicting the respondent – accused for the offence under section 138 of the N.I.Act. The said judgment of conviction has been challenged by the respondent – accused in Crl.A.No.39/2014 before the Presiding Officer, Fast Track Court – II, Bengaluru City. The Appellate Court after hearing the arguments on both sides has passed the judgment dated 02.07.2014 reversing the judgment of - 5 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 conviction passed in C.C.No.15432/2008 and acquitted the respondent – accused of the offence under Section 138 of the N.I.Act. The said judgment passed by the Appellate Court in Crl.A.No.39/2014 has been challenged in this appeal by the appellant - complainant. 3. Heard learned counsel for the appellant – complainant and learned counsel for the respondent – accused. 4. Learned counsel for the appellant – complainant would contend that the respondent – accused has admitted his signature on the cheque – Ex.P2. As the respondent – accused has admitted his signature on the cheque, a presumption under Section 139 of the N.I.Act has to be drawn. The said presumption has not been rebutted by the respondent – accused. Even though the said cheque – Ex.P2 is a blank signed cheque and PW1 / respondent – accused admitting, he filling the contents of the cheque is covered under Section 20 of the N.I.Act. The respondent – accused has taken up the defence that - 6 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 eleven cheques have been forcibly taken by the appellant - complainant, his brother and one Sri.Chandrashekar and he has not filed any complaint regarding the same and he has not intimated his Banker in that regard. He placed reliance on the decision of the Hon’ble Apex Court in the case of Rajesh Jain Vs. Ajay Singh reported in 2023 INSC 888, on the point that if the presumption is not rebutted, the respondent – accused has to be convicted for the offence under section 138 of the N.I.Act. On these grounds, he prayed to allow the appeal and restore the judgment of conviction passed by the learned Magistrate. 5. Learned counsel for the respondent – accused would contend that the respondent – accused has taken up the specific defence that there are no transactions of any borrowing between the respondent – accused and the appellant – complainant. PW1, in his cross examination has admitted that during January, 2008, the appellant – complainant, his brother and one Sri.Chandrashekar went to his native place and made galata and taken the blank - 7 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 cheques. He further submits that PW1 has also admitted of his brother taking two signed cheques when his brother lent money to the respondent – accused and he filling the contents of the blank signed cheque. He further submits that as there was a quarrel in January, 2008, there is no question of issuing any cheque as per Ex.P2. The said signed cheque issued to the brother of the appellant - complainant has been misused by the appellant - complainant. The said galata taken place in January, 2008 is with regard to the appellant – complainant, his brother and Sri.Chandrashekar demanding Rs.15,00,000/- borrowed by this respondent – accused. But in the case on hand what is alleged is borrowing of Rs.80,000/-. There is no case filed by brother of the appellant - complainant for recovery of any amount from the respondent – accused. Considering all these aspects, the respondent – accused has rebutted the presumption drawn under Section 139 of the N.I.Act. Considering the said aspect, the learned Appellate Judge has rightly reversed the judgment of conviction and acquitted the respondent – - 8 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 accused for the offence under Section 138 of the N.I.Act. On that point, he placed reliance on the decision of the Hon’ble Apex Court in the case of Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SCC 197. 6. Having heard the learned counsels, this Court has perused the impugned judgment and the Trial Court records. Considering the grounds urged, the following point arises for consideration; “Whether the learned Appellate Judge has erred in reversing the judgment of conviction passed by the Trial Court in C.C.No.15432/2008 for the offence under Section 138 of the N.I.Act and acquitting the respondent – accused?” 7. My answer to the above point is in the negative, for the following reasons; It is the specific case of the appellant – complainant that the respondent – accused had borrowed Rs.80,000/- as hand loan from him on 01.10.2007 and agreed to repay the same within five months and the respondent – accused - 9 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 had issued a cheque – Ex.P2 dated 07.03.2008 for Rs.80,000/- for making payment of the amount borrowed. The respondent – accused has admitted his signature on cheque – Ex.P2. As the signature on the cheque – Ex.P2 has been admitted, a presumption has to be drawn under Section 138 of the N.I.Act that the cheque is issued for discharging the debt. The said presumption is a rebuttable presumption. The standard of proof for rebutting the said presumption is preponderance of probability. 8. It is the specific defence of the respondent – accused that he had not availed any loan from this appellant - complainant and signed blank cheque issued to the brother of the appellant - complainant has been misused by the appellant - complainant. The respondent – accused has also taken up the defence that during January, 2008, the appellant – complainant, his brother and one Sri.Chandrashekar came to his native place and made galata and demanded Rs.15,00,000/- and at that time, they forcibly taken eleven signed cheques. PW1, in his - 10 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 cross examination has admitted the suggestion that the respondent – accused was working in Jagadeesh Enterprises which is of the ownership of his brother. PW1 has further stated in his cross examination that his brother has helped the respondent – accused financially to run the said Jagadeesh Enterprises. PW1 has also admitted the suggestion that his brother had obtained one or two cheques from the respondent – accused when his brother has given financial assistance to the respondent – accused. The said admission would indicate that the brother of the appellant - complainant had two signed cheques of the respondent – accused with him. The brother of the appellant - complainant has not filed any recovery proceedings or the cheque dishonour case against the respondent – accused by using the said signed cheques given by this respondent – accused. PW1 in his cross examination has admitted the suggestion that in the month of January, 2008, he, his brother and his cousin Sri.Chandrashekar made galata with the appellant - complainant and demanded for repayment of - 11 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 Rs.15,00,000/-. The said galata took place as per the said admission in January, 2008. The alleged repayment as admitted by PW1 is Rs.15,00,000/-. The alleged borrowing in the present case is Rs.80,000/- The said galata took place in January, 2008 and Ex.P2 is dated 07.03.2008. PW1 has admitted that it was a signed blank cheque and he has filled in its contents. DW1, in his cross examination has admitted that on 08.04.2008, brother of the appellant - complainant by name Sri.Jagadeesh has filed a complaint against the respondent – accused in Chandra Layout Police Station. Even though the cheque is dated 07.03.2008, it has been presented and dishonoured on 06.05.2008 and notice dated 12.05.2008 has been issued to the respondent – accused. Even though the cheque is dated 07.03.2008, it has been presented on 06.05.2008 which is subsequent to the brother of this appellant - complainant by name Sri.Jagadeesh filing the police complaint against this respondent – accused. Considering the said aspect, it probabilizes the defence of the respondent – accused that the cheque given to brother - 12 - NC: 2025:KHC:5758 CRL.A No. 616 of 2014 of the appellant - complainant has been misused by filling its contents. Considering the above aspects, the respondent – accused has rebutted the presumption drawn under Section 139 of the N.I.Act. The appellant - complainant in order to establish his case of lending, has not placed any evidence on record. Considering the said aspect, the learned Appellate Judge has rightly reversed the judgment of conviction passed by the learned Magistrate. Considering these aspects, there are no grounds for allowing the appeal. In the result, the following; ORDER The appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE GH List No.: 1 Sl No.: 15