- 1 - NC: 2025:KHC:3721 CRL.A No. 1075 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 1075 OF 2015 BETWEEN: SRI VAJRE GOWDAA M D S/O LATE DASEGOWDA AGED ABOUT 61 YEARS RESIDING AT No.1 12TH ‘A’ MAIN BRINDAVAN NAGAR MATHIKERE BANGALORE – 560 054. …APPELLANT (BY SRI F S DABALI, ADVOCATE) AND: SRI R PUTTARANGACHAR S/O RANGACHAR AGED ABOUT 47 YEARS RESIDING AT No.18, "MATHRUSHREE" NILAYA 14TH MAIN, MUTHYALAMMA NAGAR MATHIKERE POST BANGALORE – 560 054. …RESPONDENT (BY SRI. K S RAMESH, ADVOCATE – ABSENT) THIS CRL.A.IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 03.08.2015 PASSED BY THE COURT OF XVIII ACMM, BANGALORE IN C.C.No.6979/2013 - 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:3721 CRL.A No. 1075 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 appellant – complainant challenging the judgment of acquittal dated 03.08.2015 passed in C.C.No.6979/2013 by the XVIII Additional Chief Metropolitan Magistrate, Bengaluru, whereunder, the respondent – accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as ‘N.I.Act’). 2. Case of the appellant – complainant in brief is as under; The respondent – accused is the friend of the appellant – complainant and in the second week of August, 2012, the respondent – accused sought for financial assistance from the appellant – complainant to an extent of Rs.3,00,000/- for his personal commitments. During the last week of September, 2012, the appellant – - 3 - NC: 2025:KHC:3721 CRL.A No. 1075 of 2015 complainant had advanced Rs.3,00,000/- as hand loan to the respondent – accused. The respondent – accused had promised to repay the said amount within one month. As the respondent – accused did not repay the amount borrowed within one month, the appellant – complainant insisted him to repay the amount borrowed. In the first week of November, 2012, the respondent – accused had issued the post dated cheque in favour of the appellant – complainant for Rs.3,00,000/- dated 29.11.2012 draw on Axis Bank Limited, Jayanagara Branch, Bengaluru. The appellant – complainant presented the said cheque for encashment and it came to be returned with an endorsement ‘funds insufficient’. The appellant – complainant got issued the legal notice and the same has been served on the respondent – accused. The respondent – accused did not pay the cheque amount and therefore, the appellant – complainant had filed a private complaint against him for the offence under Section 138 of the N.I.Act. The learned Magistrate took cognizance and registered C.C.No.6979/2013 against the respondent – - 4 - NC: 2025:KHC:3721 CRL.A No. 1075 of 2015 accused for the offence under section 138 of the N.I.Act. The plea of the respondent – accused had been recorded. The complainant, in order to prove his case, has examined himself as PW1 and got marked Exs.P1 to P5. Ex.D1 has been marked in the cross examination of PW1. The statement of the respondent – accused came to be recorded under Section 313 of Cr.P.C. The respondent – accused examined himself as DW1 and got marked Exs.D2 and D3 in his evidence. The learned Magistrate after hearing the arguments on both sides, had formulated the points for consideration and thereafter, passed the impugned judgment of acquittal. The said judgment of acquittal has been challenged by the appellant – complainant in the present appeal. 3. Heard learned counsel for the appellant – complainant. Learned counsel for the respondent – accused is not present. 4. Learned counsel for the appellant – complainant would contend that the respondent – accused had - 5 - NC: 2025:KHC:3721 CRL.A No. 1075 of 2015 admitted his signature on Ex.P1 – cheque and therefore, a presumption arises that the cheque had been issued for making payment of the legally enforceable debt. The said presumption is not rebutted by the respondent – accused. The respondent – accused has not sent any reply to the legal notice got issued by the appellant – complainant as per Ex.P3. The appellant – complainant has not established his defence that the cheque has been issued as a security to the chit transaction lent by the appellant - complainant and his wife. Without considering all these aspects, the learned Magistrate has erred in passing the impugned judgment of acquittal. With this, he prayed for allowing the appeal and convicting the respondent – accused for the offence under Section 138 of the N.I.Act. 5. Having heard learned counsel for the appellant - complainant, this Court has perused the impugned judgment and the Trial Court records. Considering the grounds urged, the following point arises for consideration; - 6 - NC: 2025:KHC:3721 CRL.A No. 1075 of 2015 “Whether the learned Magistrate has erred in acquitting the respondent – accused of the offence punishable under Section 138 of the N.I.Act?” 6. My answer to the above point is in the nagative, for the following reasons; The respondent – accused had admitted his signature on the cheque – Ex.P1. As the respondent – accused had admitted his signature on the cheque – Ex.P1, the presumption has to be drawn that the cheque had been issued for making payment of the legally enforceable debt. The said presumption is a rebuttable presumption. 7. It is the defence of the respondent – accused that the appellant – complainant and his wife were running the chit transaction and he was one of the member in the said chit and he had taken the chit amount and at that time, he had issued a signed cheque as a security. The said defence has been put to PW1 in his cross examination and he had denied the same. The respondent – accused who has been examined as DW1, in his evidence has - 7 - NC: 2025:KHC:3721 CRL.A No. 1075 of 2015 specifically stated that he is neighbour of the appellant – complainant and he is one of the member of the chit transaction run by the appellant – complainant and his wife and he used to pay Rs.2,500/- + Rs.2,500/- in respect of two chits every month. He has further stated that during October, 2010, he had bid the chit and took the amount and at that time, he had issued two blank signed cheques as a security. Ex.D3 – pocket diary has been produced to establish the contention of the respondent – accused that the appellant – complainant and his wife used to affix their signatures whenever they receive the chit amount. The appellant – complainant has denied that he has affixed the signature in Ex.D3 – pocket diary. In Ex.D3 – pocket diary, there are several entries on different dates mentioning Rs.5,000/- and there are signatures against each entry. 8. On perusal of the signatures against the entries in the said Ex.P3 – pocket diary and comparing them with the signature of the appellant – complainant on the - 8 - NC: 2025:KHC:3721 CRL.A No. 1075 of 2015 complaint, his signature appears to be similar. In the said Ex.D3 – pocket diary, there is also mention that the cheque No.260266 has been given as a security. The said cheque is the cheque which is at Ex.P1. PW1 has admitted that the contents of the said cheque ie., name of the payee, amount in figures and words and the date are different than the signature of the drawer. Above said aspects clearly probabalize the defence of the respondent – accused. By the said evidence, the respondent – accused has rebutted the presumption raised under section 139 of the N.I.Act. As the presumption has been rebutted, the onus shifts on the appellant – complainant to establish the alleged lending of Rs.3,00,000/- and issuance of the cheque – Ex.P1 for making payment of the debt or liability. The alleged amount lent by the appellant – complainant is Rs.3,00,000/- during September, 2012. PW1, in his cross examination had admitted that he was not doing any avocation during the year 2012 and he had left the business of doing school students identity card four years prior to that. He has also admitted that he had - 9 - NC: 2025:KHC:3721 CRL.A No. 1075 of 2015 no income during the year 2012. The said aspect would itself indicate that he had no source of income or money available with him for lending the amount to the respondent – accused. Considering all these aspects, the learned Magistrate has rightly held that the appellant – complainant had failed to prove the alleged lending of Rs.3,00,000/- and issuance of cheque – Ex.P1 for making the payment of the said legally enforceable debt. The learned Magistrate considering the said aspects, has passed the reasoned judgment acquitting the respondent – accused for the offence under Section 138 of the N.I.Act. There are no grounds made out for setting aside the well reasoned judgment of acquittal. In the result, the following; ORDER The appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE GH List No.: 1 Sl No.: 61