- 1 - HC-KAR NC: 2025:KHC-D:8905 CRL.A No. 100141 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAJESH RAI K CRIMINAL APPEAL NO.100141 OF 2018 (A) BETWEEN: SHRI MAHADEV BHARMAJI MUCHANDI AGE: 64 YEARS, OCC. RETIRED MANAGER, R/O. H.NO.2448, KAMAT GALLI, BELAGAVI. …APPELLANT (BY SRI. RAJASHEKHAR S. ARANI, ADVOCATE) AND: SMT. ZULEKHA W/O. ISMAIL NABBUWALE, AGE: 58 YEARS, OCC. HOUSEWIFE, R/O: CTS NO.4818/9, WARD NO.49, SUBHAS NAGAR, BEHIND S.P. OFFICE, BELAGAVI. …RESPONDENT (BY SRI. CHETAN MUNNOLI, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C., PRAYING TO CALL FOR THE ENTIRE RECORDS OF THE TRIAL COURT AND TO ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE V-JMFC, BELAGAVI AT BELAGAVI IN C.C.NO.261/2017 DATED 01.03.2018 THEREBY CONVICTING AND SENTENCING THE RESPONDENT-ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.07.22 10:20:41 +0530 - 2 - HC-KAR NC: 2025:KHC-D:8905 CRL.A No. 100141 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE RAJESH RAI K) In this appeal, the appellant/complainant assailed the judgment passed in C.C.No.261/2017 dated 01.03.2018 by the V-Judicial Magistrate First Class, Belagavi (hereinafter referred to as the 'learned Magistrate'), whereby, the learned Magistrate acquitted the accused/respondent for the offences punishable under Sections 138 of the Negotiable Instruments Act, 1881 (for short 'N.I.Act'). 2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. 3. The abridged facts of the case are as under: The complainant and the husband of the accused were acquainted with each other. The husband of the accused was the owner of plot bearing CTS No.4824/B2 measuring 4 guntas situated at Civil Hospital Road, Kolhapur Circle, Belagavi. The complainant intended to - 3 - HC-KAR NC: 2025:KHC-D:8905 CRL.A No. 100141 of 2018 purchase the said plot and he advanced Rs.20,00,000/- on different dates in the year 2005 and 2006 to the husband of the accused by way of cash. However the sale deed was not executed and in the meantime, the husband of the accused met with an unfortunate death on 12.02.2006. Thereafter, the complainant approached the accused and brought to her notice about the payment made by him to her husband for purchase of site. The accused admitted all the payments made by the complainant to her husband and assured the complainant that she would repay the amount. Finally, she issued a cheque in question dated 09.10.2007 in the name of the complainant for repayment of the amount paid by the complainant to her husband for purchase of the site. Accordingly, the complainant presented the cheque for encashment through his banker. However, the same was returned with an endorsement ‘Funds Insufficient’. Though the said fact was informed by the complainant to the accused, she did not make any arrangement to pay the same. Left with no other option, - 4 - HC-KAR NC: 2025:KHC-D:8905 CRL.A No. 100141 of 2018 he caused a legal notice to her. Though the said legal notice was served on her, she failed to make the payment. Hence, the complainant filed a private complaint under Section 200 of Cr.P.C., for the offence punishable under section 138 of N.I. Act before the Trial Court. 4. To prove the case before the trial Court, the complainant himself examined as PW.1 and also examined 2 witnesses on his behalf as PWs.2 and 3; marked 13 documents as Exs.P1 to P13. In order to prove her defence, the accused examined herself as DW.1. 5. On assessment of oral and documentary evidence, the learned Magistrate acquitted the accused for the offence punishable under Section 138 of N.I Act. Aggrieved by the same, the complainant preferred this appeal. 6. Heard the learned counsel Sri. Rajashekhar S Arani for the appellant, learned counsel Sri.Chetan Munnolli, for the respondent. - 5 - HC-KAR NC: 2025:KHC-D:8905 CRL.A No. 100141 of 2018 7. Besides urging several contentions, learned counsel for the appellant/complainant submitted that the trial Court has grossly erred in acquitting the accused for the offence punishable under Section 138 of N.I. Act without appreciating the evidence on record in a right perspective. He further contended that the reasoning of the learned trial Court is, the complainant failed to prove the legally enforceable debt is totally not correct, per contra Ex.P7-the receipt for having received a sum of Rs.20,00,000/-, clearly reveals that the husband of the accused has received the amount from the complainant for the sale of site and thereafter, he expired and the complainant approached the accused and after admitting the transaction, she issued the cheque in question for the amount received by her husband. As such, the cheque in question was issued for legally enforceable debt. He further contended that the accused has not disputed the cheque in question and her signature on it. She also not disputed the receipt Ex.P7 executed by her husband. In - 6 - HC-KAR NC: 2025:KHC-D:8905 CRL.A No. 100141 of 2018 such circumstance, the trail Court is erred in dismissing the complaint. Accordingly, he prays to allow the appeal and convict the accused for the offence punishable under section 138 of the N.I. Act. 8. Per contra, the learned counsel for the respondent contended that, though the issuance of cheque in question and the signature on it is not disputed by the accused, it is the specific defence of the accused that the complainant being a retired Bank employee assured her, he would facilitate her to obtain a loan from the Bank and for the same he demanded a signed cheque from her. Hence, she issued the cheque in question. But later, the accused failed to return the same and presented it for unlawful gain. He further contended that there is no legally enforceable debt against the accused since the complainant himself admitted that the cheque in question was issued by the accused for the amount received by her husband in respect of sale of a site in the year 2005 and 2006. However, her husband was died on 12.02.2006. - 7 - HC-KAR NC: 2025:KHC-D:8905 CRL.A No. 100141 of 2018 After lapse of 1½ year, the cheque in question was presented by the complainant. In such circumstance, it cannot be concluded that the cheque in question was issued by the complainant for legally enforceable debt. Further, the complainant also failed to produce any document including the title deeds of the site standing in the name of husband of the accused, which he intend to purchase. In such circumstance, the Trial Court has rightly appreciated the evidence and passed the impugned judgment which does not call for any interference. Accordingly, he prays to dismiss the appeal. 9. I have given my anxious consideration to the arguments advanced by the learned counsels for the respective parties and perused the materials on record. 10. As could be gathered from the records, the issuance of the cheque in question-Ex.P1 and the signature of the accused on it is undisputed. However, it is specific defence of the accused that the cheque in question - 8 - HC-KAR NC: 2025:KHC-D:8905 CRL.A No. 100141 of 2018 was issued by her to the complainant for obtaining loan from a Bank, since the complainant was a retired Bank employee. It is undisputed that the complainant was a retired bank employee. As far as the legally enforceable debt against the accused is concerned, the complainant has stated that in the year 2005 and 2006, in different installments, he had paid a sum of Rs.20,00,000/- to the husband of the accused for purchase of a plot bearing No.CTS 4824/B2 measuring 4 guntas at Civil Hospital Road, Kolhapur Circle, Belgaum. However, the complainant has neither executed any document nor received any title deeds of the said plot from the husband of the accused. Ex.P7 is the receipt produced by the complainant to substantiate that the husband of accused has received Rs.20,00,000/- for sale of the plot. Ex.P7 is executed in the year 2005. It is admitted by the complainant that the husband of the accused was died on 12.02.2006. The cheque in question was dated 09.10.2007 i.e., after lapse of 1½ year from the date of death of the - 9 - HC-KAR NC: 2025:KHC-D:8905 CRL.A No. 100141 of 2018 husband of accused. It is pertinent to note that even at the time of filing the private complaint or at the time of the evidence also, the complainant has not produced any document to prove that the husband of the accused was the owner of plot bearing CTS No. 4824/B2. Further, admittedly, no other document received by the complainant from the husband of accused during his life time after payment of the advance sale consideration in the year 2005 except Ex.P7. It is vehemently contended by the learned counsel for the appellant, Ex.P9 the statement of the account of the complainant reveals that he withdrawn the amount from the bank and paid the same to the husband of the accused. The date of withdrawal and date of payment as shown in Ex.P7 tallies each other. However, it is an admitted case of the complainant that the amount was paid by him to the husband of accused for purchase of a plot bearing CTS No.4824/B2. As discussed supra, the complainant has failed to produce any material to show that the husband of - 10 - HC-KAR NC: 2025:KHC-D:8905 CRL.A No. 100141 of 2018 the accused was the owner of the plot and the accused denied that her husband was the owner of the plot bearing CTS No.4824/B2 situated at Kolhapur Circle, Belagavi. Further, the accused is no way connected to the monitory transaction allegedly held between her husband and the complainant. For the issuance of cheque, she has clearly deposed that the same was issued for obtaining hand loan at the instance of the complainant from the bank. In such circumstances, the defence of the accused is probable one and the complainant has failed to prove the legally enforceable debt from the accused. No doubt the initial presumption arising under Sections 118 and 139 of N.I. Act favours the complainant, however, as laid down by the Hon’ble Apex Court and this Court in catena of judgments, the same is rebuttal one with the probable defence. In the instant case, the accused has rebutted the presumption with probable defence and additionally the complainant has failed to prove the legally enforceable debt from the accused. This aspect is properly appreciated by the - 11 - HC-KAR NC: 2025:KHC-D:8905 CRL.A No. 100141 of 2018 learned Magistrate. Further, this appeal is against the judgment of acquittal and it is settled position of law that the Appellate Court shall not interfere with the acquittal judgment unless the trial Court had not taken a plausible view. In the instant case, the Trial Court has taken a plausible view. I find no good grounds to interfere in the acquittal judgment. Accordingly, I proceed to pass the following: ORDER The Criminal Appeal No.100141/2018 is hereby dismissed. SD/- (RAJESH RAI K) JUDGE YAN CT:PA LIST NO.: 1 SL NO.: 10