- 1 - HC-KAR NC: 2025:KHC-K:4896 CRL.A No. 200080 of 2021 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 21ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE MRS. JUSTICE M.G. UMA CRIMINAL APPEAL NO.200080 OF 2021 (378(Cr.PC)/419(BNSS)) BETWEEN: SHRISHAILAPPA S/O UPASHEPPA KOLAR, AGE: 68 YEARS, OCC: BUSINESS, R/O VISHWESHWAR COLONY, ASHRAM ROAD, VIJAYAPURA-586 104 …APPELLANT (BY SRI R.S. LAGALI, ADVOCATE) AND: MALLAPPA S/O BHIMAPPA KAKHANDAKI, AGE: 37 YEARS, OCC: BUSINESS, R/O: C/O. MURALIDHAR KUMBAR, VISHWESHWAR COLONY, ASHRAM ROAD, BLDE HOSPITAL ROAD, VIJAYAPURA-586 104. …RESPONDENT (BY SRI SHIVANAND V. PATTANSHETTI, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C., PRAYING SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 25.02.2021 PASSED BY THE I ADDL. CIVIL JUDGE & JMFC., VIJAYAPURA, IN CRIMINAL CASE NO.2268/2013 & CONVICT THE Digitally signed by NANDINI B G Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:4896 CRL.A No. 200080 of 2021 RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT AND TO GRANT RELIEF AS PRAYED FOR IN THE PRIVATE COMPLAINT. 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 appellant being the complainant in C.C.No.2268/2013 on the file of the learned I Additional Civil Judge and JMFC, Vijayapura is impugning the judgment of acquittal dated 25.02.2021, acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘N.I. Act’). 2. The case of the complainant in brief is that, the accused was familiar with him and he used to get hand loan from the complainant very frequently. He approached the complainant during January 2013 and requested for hand loan of Rs.5,00,000/-. Accordingly, - 3 - HC-KAR NC: 2025:KHC-K:4896 CRL.A No. 200080 of 2021 the complainant lent an amount of Rs.5,00,000/- on 20.01.2013. Towards repayment of the loan amount, the accused issued the cheque bearing No.3180351 dated 25.03.2013 for Rs.5,00,000/-. The cheque was presented for encashment and the same was dishonoured, as there was insufficient fund in the account of the accused. Legal notice was issued by the complainant to the accused, informing about dishonour of the cheque and calling upon him to repay the cheque amount. On receipt of the notice, the accused issued reply notice denying that he had borrowed a sum of Rs.5,00,000/-. He has never repaid the cheque amount and thereby, committed the offence punishable under Section 138 of the N.I. Act. 3. The complainant filed the private complaint in P.C.No.584/2013. The Trial Court took cognizance of the offence and registered C.C.No.2268/2013. 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 P6 in support of his - 4 - HC-KAR NC: 2025:KHC-K:4896 CRL.A No. 200080 of 2021 contention. The accused has denied the incriminating materials available on record in his statement under Section 313 of Cr.P.C. and examined himself as DW.1. 4. The Trial Court after taking into consideration all the materials on record, came to the conclusion that the complainant has not proved his capacity to lend the loan of Rs.5,00,000/-. Therefore, dismissed the complaint by acquitting the accused for the offence punishable under Section 138 of the N.I. Act. Being aggrieved by the same, the complainant is before this Court. 5. Heard Sri R.S. Lagali, learned counsel for the appellant and Sri Shivanand V. Pattanashetti, learned counsel for the respondent. Perused the materials on record. 6. In view of the rival submissions made by the learned counsels for both the parties, the point that would arise for my consideration is: - 5 - HC-KAR NC: 2025:KHC-K:4896 CRL.A No. 200080 of 2021 "Whether the impugned judgment of acquittal passed by the Trial Court suffers from infirmities and calls for interference by this Court?" My answer to the above point is in the 'Negative’ for the following: R E A S O N S 7. It is contended by the learned counsel for the appellant that, the appellant was working as Accounts Supervisor in KSRTC and he retired from service. From out of the retirement benefits, he paid Rs.5,00,000/- to the accused on 20.01.2013. Towards repayment of the same, the cheque as per Ex.P1 was issued by the accused, which was admittedly dishonored. The appellant sent the legal notice to the accused informing about dishonour of the cheque and calling upon him to repay the cheque amount. Instead of repaying the cheque amount, the accused issued untenable reply as per Ex.P6. Once the accused admits issuance of cheque, the presumption - 6 - HC-KAR NC: 2025:KHC-K:4896 CRL.A No. 200080 of 2021 under Sections 118 and 139 of the N.I. Act would arise. The accused has not rebutted the presumption. Ignoring all these facts, the Trial Court acquitted the accused, which is untenable in law and accordingly prays for allowing the appeal. 8. Per contra, learned counsel for the respondent opposing the appeal submitted that, while filing the present complaint, the complainant has also filed another complaint registered in C.C.No.2267/2013 contending that, during March 2013, he had lent another sum of Rs.5,00,000/-. No materials are placed before the Court regarding the financial condition of the complainant. Even though Bank Statement was produced in that case before the Court, it does not disclose that he was having financial capacity to lend the amount. Under such circumstances, the Trial Court was right in acquitting the accused and accordingly, prays for dismissal of the appeal. 9. It is the contention of the complainant that, he had lent an amount of Rs.5,00,000/- on 20.01.2013. - 7 - HC-KAR NC: 2025:KHC-K:4896 CRL.A No. 200080 of 2021 Towards repayment of the same, the cheque-Ex.P1 was issued by the accused and the same was dishonoured, as there was insufficient fund. Legal notice as per Ex.P5 was issued and reply as per Ex.P6 was issued by the accused. The tenor of cross-examination of PW1 discloses that, the accused admits issuance of the cheque-Ex.P1, but contends that he used to borrow only an amount of Rs.5,000 to 10,000/- from the complainant. According to him, he issued a blank cheque with his signature as security, and the same was filled up by the complainant. 10. Once accused admits issuance of cheque with his signature, the presumption under Section 118 and 139 of N.I. Act would arise. The burden shifts on the accused to rebut the presumption. The accused has cross- examined PW1 at length. During cross-examination, it is elicited that the complainant was working as a Supervisor in K.S.R.T.C. and retired from his service. In the complaint as well as in the affidavit sworn in line of examination-in-chief, the complainant contends his - 8 - HC-KAR NC: 2025:KHC-K:4896 CRL.A No. 200080 of 2021 avocation as business. But, nothing has been placed before the Court to contend that he was carrying on business and was having sufficient amount with him. Moreover, according to the bank statement produced in CC.No.2267/2013 which was appreciated by the Trial Court and by this Court in CRL.A 200081/2021, the complainant was having balance of Rs.630/- only in his bank account. Hence, the complainant has failed to prove his financial capacity to lend a total sum of Rs.10,00,000 to the accused. 11. A specific defence was taken by the accused that, he is only a petty businessman having a petty shop. He used to borrow only Rs.5,000/- to Rs.10,000/- from the complainant. Towards repayment of such amount, he issued the blank cheque, which was misused by the complainant. When the complainant has proved that the accused did not have the financial capacity to lend the amount, the accused is successful in rebutting the legal presumption by creating dent in the case made up by the - 9 - HC-KAR NC: 2025:KHC-K:4896 CRL.A No. 200080 of 2021 complainant. Once, accused is successful in rebutting the legal presumption, the burden again shifts on the complainant, who is required to prove his financial capacity to lend and also actual lending of the amount. No materials are placed before the Court by the complainant to prove lending of the amount. PW1 had categorically states in his evidence that, he has not taken any document while lending such huge amount of Rs.5,00,000/- to the accused during January 2013. 12. It is brought to the notice of the Court that, Criminal Appeal No.200081/2025 is filed before this Court, where similar contention was taken by the complainant contending that, he had lent Rs.5,00,000/- to the accused on 20.01.2013 and similar cheque was issued for Rs.5,00,000/- by the accused. In the said complaint, the Trial Court passed similar judgment, acquitting the accused. Now the question arises about the source of income for the complainant to lend Rs.5,00,000/- on 20.01.2013 and another Rs.5,00,000/- on 05.03.2013. - 10 - HC-KAR NC: 2025:KHC-K:4896 CRL.A No. 200080 of 2021 When the accused is successful in rebutting the presumption, and when the complainant is not successful in proving his financial capacity and also lending of the amount to the accused, he is entitled for acquittal. 13. I have gone through the impugned judgment of acquittal passed by the Trial Court, which has appreciated the materials on record and has rightly passed the judgment. I do not find any reason to interfere with the same. 14. Accordingly, I answer the above point in the ‘negative’ and proceed to pass the following: ORDER The criminal appeal is dismissed. The Registry is directed to send back the Trial Court records along with the copy of this judgment. SD/- (M.G. UMA) JUDGE SBS, List No.: 1 Sl No.:CT:PK