- 1 - NC: 2025:KHC:10240 CRL.A No. 683 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO. 683 OF 2015 BETWEEN: SRI B. S. BHASKAR S/O. SRI B. V. SUBBA RAO, AGED 67 YEARS, RESIDING AT NO.107, 2ND CROSS, 11TH MAIN ROAD, 3RD PHASE, GIRINAGAR, BANGALORE – 560 085. …APPELLANT (BY SRI PARAMESWARAPPA C., ADVOCATE) AND: SMT. RAMYA W/O. MR. NAVEEN, AGED: 37 YEARS, RESIDING AT NO.30, 3RD CROSS, 1ST MAIN ROAD, ISRO LAYOUT, BANGALORE – 560 078. …RESPONDENT (BY SRI ARUN K. S., ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO CALL FOR THE RECORDS IN C.C.NO.12049/2013 ON THE FILE OF THE LEARNED XVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BANGALORE AND SET ASIDE THE JUDGMENT DATED 10.03.2015 PASSED IN C.C.12049/2013 ON THE FILE XVIII A.C.M.M AT BANGALORE AND TO PUNISH THE RESPONDENT IN ACCORDANCE WITH LAW AND TO COMPENSATE THE APPELLANT SUITABLY, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THROUGH VIDEO CONFERENCING HEARING AT DHARWAD BENCH, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - NC: 2025:KHC:10240 CRL.A No. 683 of 2015 CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT This appeal is filed by the complainant praying to set aside the judgment of acquittal dated 10.03.2015 passed in C.C. No.12049/2013 by the learned XVIII Additional Chief Metropolitan Magistrate, Bangalore, whereunder, the respondent/accused has been acquitted of the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the NI Act’, for short). 2. Facts in brief of the complainant’s case are as under: The complainant and the accused are known to each other for more than 4 years. That, the accused, for repayment of loan borrowed from others, has demanded for financial assistance from the complainant to an extent of Rs.8,00,000/-. The complainant advanced hand loan of Rs.4,00,000/- on 06.01.2013 and Rs.4,00,000/- on 05.02.2013 by cash. The complainant, in all advanced - 3 - NC: 2025:KHC:10240 CRL.A No. 683 of 2015 Rs.8,00,000/- to the accused. The accused issued a post dated cheque in favour of the complainant for repayment of said amount dated 07.02.2013 for Rs.8,00,000/- drawn on ICICI bank, Whitefield Branch, Bangalore. The complainant presented the said cheque for encashment and the same came to be returned dishonoured with an endorsement ‘funds insufficient’ under a bank memo dated 08.03.2013 and 03.05.2013. The complainant has got issued a notice to the accused dated 20.05.2013 calling upon the accused to pay the cheque amount. Though the said notice had been duly served on the accused, the accused did not pay the cheque amount and therefore, the complainant filed a private complaint against the respondent/accused for the offence under Section 138 of NI Act. The learned Magistrate has taken cognizance and registered C.C. No.12049/2013 against the respondent/accused for an offence under Section 138 of NI Act. The plea of the accused has been recorded. The complainant in order to prove his case, has examined himself as PW.1 and got marked Ex.P-1 to P-14. The - 4 - NC: 2025:KHC:10240 CRL.A No. 683 of 2015 statement of the accused has been recorded under Section 313 of the Code of Criminal Procedure. The respondent/accused examined herself as DW-1 and no documents are marked on defense side. The learned Magistrate after hearing the arguments on both side, has passed the impugned judgment of acquittal. The said judgment of acquittal has been challenged by the complainant in this appeal. 3. Heard the learned counsel for the appellant and the learned counsel for the respondent. 4. Learned counsel for the appellant would contend that the respondent has admitted her signature on the cheque-Ex.P-1. As the respondent has admitted her signature on the cheque, a presumption has to be drawn under Section 139 of NI Act that the cheque is issued for discharge of the debt. The respondent/accused has not rebutted the said presumption. The respondent has taken up a defense that, for the loan borrowed by her father-in-law, she has issued the cheque as a security. He - 5 - NC: 2025:KHC:10240 CRL.A No. 683 of 2015 submits that the said defense has not been established by the respondent/accused. Without considering these aspects, the learned Magistrate has erred in acquitting the respondent/accused. With this, he prayed to allow the appeal and convict the respondent/accused for the offence under Section 138 of NI Act. 5. Learned counsel for the respondent would contend that, the cheque Ex.P-1 has been issued as a security to the loan availed by father-in-law of the respondent/accused. The said defense has been established by the respondent/accused. The learned Magistrate, considering the said aspect and holding that the appellant/complainant has no capacity to lend huge amount of Rs.8,00,000/-, has rightly acquitted the accused of the offence under Section 138 of NI Act. With this, he prayed for dismissal of the appeal. 6. Having heard the learned counsel, the Court has perused the impugned judgment and the trial Court records. - 6 - NC: 2025:KHC:10240 CRL.A No. 683 of 2015 7. Considering the grounds urged, the following point arises for consideration: Whether the learned Magistrate has erred in acquitting the respondent/accused of the offence under Section 138 of NI Act? 8. My answer to the above said point is in the affirmative for the following reasons: 9. It is the specific case of the appellant/complainant that the respondent has borrowed Rs.4,00,000/- on 06.01.2013 and Rs.4,00,000/- on 05.02.2013 by way of cash and in order to repay the same, she has issued a cheque-Ex.P-1 dated 07.02.2013 for Rs.8,00,000/-. As the respondent/accused has admitted her signature on cheque-Ex.P-1, presumption under Section 139 of NI Act that, the cheque is issued for discharge of the debt has to be drawn. The said presumption is a rebuttable presumption. The standard of proof for rebutting the said presumption is preponderance of probabilities. - 7 - NC: 2025:KHC:10240 CRL.A No. 683 of 2015 10. The respondent/accused has taken up a defense that, the cheque-Ex.P-1 has been issued as a security to the loan availed by her father-in-law. The said aspect which is put to PW.1 in his cross-examination has been denied by him. In order to establish the said defense, the respondent/accused has not examined her father-in-law. The respondent/accused has admitted her acquaintance with the appellant and his wife. The respondent/accused has also admitted in the cross- examination that her husband suffered loss in his business in the year 2012 and closed his shop. It is the case of the complainant that, the respondent/accused has borrowed the amount in order to repay the loan availed by her from others. That, the said aspect of her husband sustaining loss and closing his business, itself, indicates that she was in need of money. It is suggested to PW.1 in his cross- examination that, he has received interest from the accused at the rate of 6% per annum and the said suggestion has been denied by him. It is also suggested to PW.1 in his cross-examination that, he has received - 8 - NC: 2025:KHC:10240 CRL.A No. 683 of 2015 higher interest from the accused, he has denied the same. The said suggestions indicate that the respondent/accused has availed loan and paid interest to the complainant. Considering all these aspects, the respondent/accused has failed to rebut the said presumption drawn under Section 139 of NI Act. As the said presumption is not rebutted, there is no question of considering the capacity of the appellant/complainant to lend the money. Without considering all these aspects, the learned Magistrate has erred in acquitting the respondent/accused for the offence under Section 138 of NI Act. The appellant/complainant has satisfied the other ingredients of the offence under Section 138 of NI Act i.e., statutory notice has been issued within the statutory period from the date of dishonour and the compliant has been filed within the statutory period from the date of cause of action. Considering the same, the appellant/complainant has proved the commission of the offence by the respondent/accused under Section 138 of NI Act. - 9 - NC: 2025:KHC:10240 CRL.A No. 683 of 2015 11. In the result, the following: ORDER The appeal is allowed. The impugned judgment of acquittal dated 10.03.2015 in C.C. No.12049/2013 by the learned XVIII Additional Chief Metropolitan Magistrate, Bangalore, is set aside. The respondent/accused is convicted for the offence under Section 138 of NI Act and is sentenced to fine of Rs.8,10,000/-, in default, to undergo simple imprisonment for three months. Out of the fine amount, Rs.8,00,000/- is ordered to be paid as compensation to the appellant/complainant. The respondent/accused shall deposit the fine amount within two months from this day. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE kmv CT-ASC