- 1 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 23RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 200177 OF 2025 (378(Cr.PC)/419(BNSS)) BETWEEN: GUNDAPPA K. BALTE S/O LATE KARBASAPPA BALTE, AGE:65 YEARS, OCC:RETIRED PENSIONER, R/O. H NO. 8-9-455, DEVI COLONY, NEAR BUS STAND, BIDAR-585401. …APPELLANT (BY SRI MAHANTESH PATIL, ADVOCATE) AND: KASHINATH RAO S/O BASAPPA PATIL, AGE:MAJOR, OCC: AGRICULTURE, R/O. AT POST VILLAGE ALIYABAD, BIDAR-585401. …RESPONDENT (BY SRI ANILKUMAR RAMRAO GAIKWAD, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CR.P.C (OLD), U/S 419(4) OF BNSS(NEW) PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 18-03-2025 PASSED BY THE LEARNED II ADDL. CIVIL JUDGE AND JMFC-II BIDAR IN CRIMINAL CASE NO.3791/2022 AND TO PUNISH THE RESPONDENT-ACCUSED FOR THE OFFENCE Digitally signed by SWAPNA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT. THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA ORAL JUDGMENT (PER: HON'BLE MRS JUSTICE M G UMA) The complainant in C.C.No.3791/2022 on the file of learned II Additional Civil Judge and JMFC-II, Bidar (for short ‘Trial Court’), registered for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short ‘N.I.Act’), is impugning the judgment dated 18.03.2025, acquitting the respondent/accused for the above said offence. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. Brief facts of the case are that, the complainant has filed the private complaint in P.C.No.194/2022 before the Trial Court against the accused alleging commission of the offence punishable under Section 138 of N.I.Act. It is - 3 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 the contention of the complainant that, the accused was his friend and to meet his legal necessities and to clear the debts, the accused was interested in selling Plot No.5 measuring 40 x 30 ft. situated at Siddeshwar Colony, Bidar, for sale consideration of Rs.30,000/-. The complainant accepted the proposal. Similarly, registered sale deed dated 20.11.2002 was executed by the accused in favour of the complainant. Similarly, two other plots i.e., Plot Nos. 6 & 7 were also sold under two separate sale deeds. After purchase of the plots from the accused, the complainant was put in possession of the same. It is alleged that during December, 2021, the complainant came to know that, the accused had alienated the very same plots in favour of a third party behind the back of the complainant. When the act of the accused was questioned by the complainant, the accused had agreed to repay the value of the plots i.e., Rs.25,00,000/- and later, issued three cheques. In respect of the sale deed referred to above, he had issued cheque dated 25.02.2022 for - 4 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 Rs.10,00,000/-. When the cheque was presented for encashment, the same was dishonoured as there was funds insufficient in the account of the accused. The legal notice was issued to the complainant informing dishonour of the cheque and calling upon him to repay the cheque amount. But the accused knowing the contents of the notice, refused to accept the same and he has not repaid the cheque amount. Thereby, he has committed the offence punishable under Section 138 of N.I. Act. Accordingly, the complainant has requested the Trial Court to take cognizance of the offence and to initiate legal action against the accused. 4. The Trial Court took cognizance of the offence, registered the criminal case and summoned the accused. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. The complainant examined himself as PW.1 and got marked Exs.P1 to P8 in support his contention. The accused has denied all the incriminatory materials available on record in his - 5 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 statement under Section 313 of Cr.P.C. and examined himself as DW.1. The Trial Court after taking into consideration all the materials on record came to the conclusion that, the complainant was not successful in proving the guilt of the accused beyond reasonable doubt and therefore, passed the impugned judgment of acquittal, acquitting the accused for the offence punishable under Section 138 of N.I. Act. Being aggrieved by the same, the complainant is before this Court. 5. Heard Sri Mahantesh Patil, learned counsel for the appellant and Sri Anilkumar Ramrao, learned counsel for the respondent. Perused the materials on record including the Trial Court records. 6. In view of the rival contentions urged by learned counsel for the parties, the point that would arise for my consideration is: "Whether the judgment of acquittal passed by the Trial Court suffers from - 6 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 infirmities and calls for interference by this Court?" My answer to the above point is in the ‘Affirmative’, for the following: REASONS 7. It is the contention of the complainant that, even though the sale deeds have been executed in his favour the accused had handed over the property to a third party, and when such act of the accused was questioned by the complainant, the accused had agreed to repay the value of the plots, which was estimated at Rs.25,00,000/-. Accordingly, he issued three cheques, out of which two cheques were for Rs.10,00,000/- each and the 3rd cheque was for Rs.5,00,000/-. Ex.P1 is one of the cheques for Rs.10,00,000/- dated 25.02.2022. The same was presented for encashment. Ex.P2 is the Return Memo informing the complainant about dishonour of the cheque as there was insufficient fund in the account of the - 7 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 accused. Ex.P3 is the legal notice. Ex.P4 is the postal receipt. Ex.P5 is the Postal acknowledgment of notice returned un-served, as the accused refused to receive the same. 8. During cross-examination, it is suggested to PW1 that Exs.P1 and the other two cheques belonging to the accused were lost and it is suggested that the signatures and other writings on the cheque Ex.P1 are not that of the accused, the same was denied by the witness. Except taking the defence that the cheques in question were lost, no other defence was taken by the accused. 9. The accused stepped into the witness box and deposed as DW1. In his evidence, the witness states that the complainant is a stranger to him. However, he states that, he was the Chairman of the Gram Panchayat from 2000 to 2005. Strangely, he states that he never executed any sale deed in favour of the complainant. Thereafter, the chief-examination was deferred at the request of the learned counsel for the accused and during - 8 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 further chief-examination, he states that Ex.P1 does not bear his signature or his writings and nor has he received any notice. During cross-examination, witness stated that, since 1980 he worked as Chairman of the Gram Panchayat for six times. He asserts that he has not executed sale deed in favour of the complainant, which is quite contrary to the registered sale deeds Exs.P6 to P8. 10. Learned counsel for the respondent/accused submits that, the accused is so innocent and without knowing the consequences, has given such evidence. But the fact remains that, he was appointed as the Chairman of the Gram Panchayat for six times, that means atleast for 30 years. 11. It is pertinent to note that, the accused admitted his address as mentioned in the legal notice as well as in the complaint. He admits that, if a notice was sent to the said address, it will be served on him. Ex.P5 is the postal envelop addressed to the accused, returned as ‘refused’. The endorsement by the postal authority will - 9 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 have a presumption, and the burden is on the accused to rebut the same as he contends that, the notice was never tendered to him. No efforts whatsoever is made by the accused to rebut the said presumption regarding the postal endorsement, which clearly goes to show that, the accused has refused to receive the legal notice. 12. During further cross-examination of DW1, he categorically admits that, Exs.P6 to P8 are the sale deeds executed by him in favour of the complainant, but contends that, he insisted the complainant to get the sale deeds cancelled. However, he admits that, he has not issued any notice to the complainant to get the sale deed cancelled. It is also pertinent to note that, the accused has categorically stated that, the subject matters of the sale deeds at Ex.P6 to P8 were the plots, and he has handed over the possession of the same in favour of one Bharatibai W/o Prabhu. Even though, the plots were not sold in her favour, the possession of the property was handed over to her. However, he denied such suggestions - 10 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 that since the possession of the plots were handed over to Bharatibai, the accused had issued cheques as per Ex.P1 and two other cheques which are subject matter of other complaints. 13. If the materials on record are taken into consideration, the accused admits that the cheque – Ex.P1 belongs to his bank account. However, he denies the signature and the other writings found therein. Even though, the accused denies signature found on Ex.P1, when the said signature is compared with the admitted signature of the accused found on the registered sale deeds, Vakalatnama, Plea, and the Depositions recorded by the Trial Court, I am satisfied with the signature found on Ex.P1 is that of the accused himself. 14. It is the contention of the accused that the cheque – Ex.P1 was taken away by the complainant from his office. Except, taking such bald stand, the accused has not complained against the accused for having taken away the cheque. He has also not complained to the Bank and - 11 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 asking for stopping the payment. There is absolutely no reason assigned by the accused as to why he has not taken any action against the complainant, who said to have taken away the cheque and presented the same for encashment. Strangely, the accused has not chosen to accept the legal notice, and has refused to receive the same. 15. When the accused admits that, Ex.P6 to P8 are the sale deeds executed by him in favour of the complaint and further states that, the possession of those sites were handed over by him to one Bharatibai, it probablize the contention taken by the complainant that accused had agreed to repay the market value of the site and accordingly, the cheque in question was issued. Under such circumstances, the presumption under Sections 139 and 118 of N.I. would arise. It is for the accused to rebut the legal presumption. Even though, the accused has stepped into the witness box, he has not rebutted the legal presumption. The contention of the accused that, the sale - 12 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 deeds – Exs.P6 to P8 are not cancelled and therefore, the complainant is not entitled for any relief cannot be accepted for the simple reason that the issuance of the cheque by the accused is admitted and the evidence on record as discussed above discloses that the plots in question were handed over by the accused in favour of the 3rd party, for which, the accused has agreed to repay the value of the site and under such circumstances, the cheque in question was issued. In view of the above, I am satisfied with the contention taken by the complainant. 16. Learned counsel for the complainant submits that the complainant will undertake to file an affidavit to the effect that he would execute the cancellation deed in favour of the accused in respect of the sale deeds – Exs.P6 to P8. Whenever, the accused calls upon him to do so. The said submission is placed on record. 17. In view of the discussions held above, I am of the opinion that, the complainant is successful in proving the guilty of the accused for offence under Section 138 of - 13 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 N.I. Act, beyond reasonable doubt and accused is liable for conviction. 18. Heard learned counsel for the parties regarding sentence. 19. Accordingly, I answer the above point in the affirmative and proceed to pass the following: ORDER (i) The criminal appeal is allowed. (ii) The impugned judgment of acquittal dated 18.03.2025 passed in Criminal Case No.3791/2022 by the learned II Additional Civil Judge and JMFC-II, Bidar, is hereby set aside. (iii) Consequently, the respondent/accused is convicted for the offence punishable under Section 138 of the N.I. Act. He is sentenced to pay fine of Rs.15,00,000/- - 14 - HC-KAR NC: 2025:KHC-K:5774 CRL.A No. 200177 of 2025 (Rupees: Fifteen Lakhs Only) within a period of three months from today and in default of payment of fine, he shall undergo simple imprisonment for a period of one year. (iv) Out of the fine amount to be deposited by the respondent/accused, a sum of Rs.14,90,000/- is ordered to be paid to the appellant/complainant as compensation. Registry to send back the Trial Court records along with copy of this judgment for information and needful action. Sd/- (M.G. UMA) JUDGE SRT, SBS List No.: 1 Sl No.: 21 CT:PK