- 1 - NC: 2025:KHC-D:5668 CRL.A No. 100348 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF MARCH 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO.100348 OF 2019 BETWEEN: SRI. SANJAY S/O. EKANATH MORE, AGED ABOUT: 48 YEARS, OCC: BUSINESS, R/AT: KELKARBAG, BELAGAVI. …APPELLANT (BY SRI. SHIVAKUMAR APARAJ, ADVOCATE FOR SRI. MRUTYUNJAY TATA BANGI, ADVOCATE) AND: SMT. ARATI D/O. RAVINDRA LENGADE, AGED ABOUT: 43 YEARS, OCC: SERVICE, R/AT: SAMBRAM HOSPITAL, 36, STAFF QUARTERS, BEML NAGAR, KGF, DIST: KOLAR – 563 113. …RESPONDENT (BY SRI. JAGADISH PATIL, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE ORDER OF ACQUITTAL PASSED BY THE VI ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI PASSED IN CRL. APPEAL NO.61 OF 2019 DATED 19.08.2019 AND CONFIRM THE ORDER OF CONVICTION PASSED BY VIII JMFC COURT, BELAGAVI PASSED IN C.C.NO.277 OF 2017 DATED 18/02/2019 AND CONVICT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT BY ALLOWING THE PRESENT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - NC: 2025:KHC-D:5668 CRL.A No. 100348 of 2019 ORAL JUDGMENT This appeal is filed by the complainant praying to set aside the judgment of acquittal dated 19.08.2019 passed in Crl.A. No.61/2019 by the VI Additional District and Sessions Judge, Belagavi and confirm the order of conviction passed in C.C. No.277/2017 dated 18.02.2019 by the learned VIII JMFC Court, Belagavi, and convict the respondent/accused for offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the IPC’, for short). 2. The case of the appellant/complainant is as under: The appellant/complainant is the permanent resident of Belagavi and a businessman by profession and was also a Chairman of Merchantile Co-operative Credit Society, Belagavi. The accused is a doctor by profession and having acquaintance with the complainant through Shri. Shivaji Hande’s wife Mrs. Tejaswini Hande, who is the - 3 - NC: 2025:KHC-D:5668 CRL.A No. 100348 of 2019 friend of the complainant. The accused being in need of money for starting a hospital at Kolkatta, had approached the complainant for financial help. The complainant having acquaintance, had extended help by financing the accused Rs.15,00,000/- in the year 2009-10 and the same was received by the accused from time to time in the year 2009-2010. The accused also availed loan from Mercantile Co-operative Credit Society, Belagavi, for the very project and the accused has repaid the loan to the Society. The accused had assured to return the money within four years. The transaction was not reduced into writing due to close acquaintance of the accused through Mrs. Tejaswini Hande. The accused, on repeated requests by the complainant to repay the loan amount, had issued a cheque for Rs.15,00,000/- dated 18.04.2015 drawn on State Bank of India, Shahapur , Belagavi bearing cheque No.978115. The said cheque came to be presented by the complainant for encashment. The said cheque has been returned dishonoured as “payment stopped by drawer”. The complainant got issued a legal notice dated - 4 - NC: 2025:KHC-D:5668 CRL.A No. 100348 of 2019 06.05.2015 to the accused and the same has been served on 12.05.2015. The accused did not pay the cheque amount and gave reply to the legal notice. As the accused did not pay the cheque amount, the complainant filed a private complaint against the respondent/accused for offence under Section 138 of NI Act. The learned Magistrate taken cognizance and registered C.C. No.277/2017 for the offence punishable 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 Exs.P-1 to P-6. The statement of the accused has been recorded under Section 313 of the Code of Criminal Procedure. The learned Magistrate, after hearing the arguments on both sides, has passed the judgment of conviction dated 18.02.2019 in C.C. No.277/2017. The said judgment of conviction was challenged by the respondent/accused in Crl.A. No.61/2019 before the learned VI Additional District and Sessions Judge, Belagavi. The said appeal came to be - 5 - NC: 2025:KHC-D:5668 CRL.A No. 100348 of 2019 allowed by judgment dated 19.08.2019 and the order of conviction passed in C.C. No.277/2017 has been set aside and the respondent/accused has been acquitted of the offence under Section 138 of NI Act. The said judgment of acquittal passed by the Appellate Court has been challenged in the present appeal by the complainant. 3. Heard the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused. 4. Learned counsel for the appellant would contend that the respondent/accused has admitted her signature on the cheque-Ex.P-1. As signature on the cheque is admitted, a presumption has to be drawn under Section 139 of NI Act. The Appellate Court erred in acquitting the respondent/accused on the ground that presumption drawn under Section 139 of NI Act has been rebutted by the respondent/accused. The very fact that the respondent/accused has borrowed loan in the name of other person itself indicates that she has borrowed money - 6 - NC: 2025:KHC-D:5668 CRL.A No. 100348 of 2019 from the complainant through one Umesh Shetty. Without considering this aspect, the Appellate Judge has erred in passing the judgment of acquittal. With this, he prayed to allow the appeal and restore the judgment of conviction passed by the trial Court. 5. The learned counsel for the respondent/accused would contend that, there is no legally enforceable debt. The complainant has not stated either in his complaint or in any other documents namely, legal notice or in his affidavit evidence, regarding he giving amount of Rs.15,00,000/- through the account of one Umesh Shetty maintained with IDBI bank. The appellant/complainant has transferred Rs.15,00,000/- to the account of one Umesh Shetty, there is no liability on the part of the respondent/accused to repay the said amount. The said Umesh Shetty has not been examined by the complainant. Considering all these aspects, the learned appellate Judge has rightly acquitted the respondent/accused by the - 7 - NC: 2025:KHC-D:5668 CRL.A No. 100348 of 2019 impugned judgment. With these, 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. 7. Considering the grounds urged, the following point arises for consideration. Whether the Appellate Court has erred in reversing the judgment of conviction passed by the trial Court and acquitting the accused of the offence under Section 138 of NI Act? 8. My answer to the above point is in the negative for the following reasons: 9. It is the specific case of the appellant/complainant that, he lent Rs.15,00,000/- during the year 2009-2010 to the respondent/accused for starting a hospital at Kolkatta. It is the further case of the appellant that, in order to repay the amount borrowed to - 8 - NC: 2025:KHC-D:5668 CRL.A No. 100348 of 2019 the respondent, the respondent/accused has issued a cheque-Ex.P-1. The respondent/accused has not denied her signature on the cheque-Ex.P-1. As the respondent/accused has admitted her signature on Ex.P.1, a presumption has to be drawn under Section 139 of NI Act that the cheque is issued for discharge of the debt. The said presumption is a rebuttable presumption. Standard of proof for rebutting the said presumption is preponderance of probabilities. 10. It is the defense of the respondent/accused that, she has not borrowed money from the complainant and the cheque was issued as a security to her loan account with Mercantile Co-operative Society, Belgaum, has been misused by this appellant/complainant as he was a chairman of the said Co-operative Society. The said defense has been put forth by the respondent/accused in reply notice/Ex.P-6. 11. The complainant has not stated either in his notice-Ex.P-3 or in the complaint or in his affidavit - 9 - NC: 2025:KHC-D:5668 CRL.A No. 100348 of 2019 evidence that he personally transferred Rs.15,00,000/- through RTGS to the account of one Umesh Shetty maintained in the name of Durga Associates with IDBI Bank. PW.1 in his cross-examination has admitted that he has transferred Rs.15,00,000/- to Umesh Shetty by RTGS. PW.1 in his cross-examination has stated that there was no problem for transferring the said amount of Rs.15,00,000/- to the account of the accused. He has stated that, as the accused has requested to transfer the said amount borrowed to the account of her friend. All these aspects have not been stated by the complainant in his legal notice, or the complaint or in his evidence affidavit. Merely because, the respondent/accused has borrowed loan in the name of others in the Mercantile Society, it cannot be said that she has also borrowed loan from the complainant through one Umesh Shetty. The said Umesh Shetty has not been examined. PW.1 has admitted that the respondent/accused has also borrowed loan from Merchantile Society and it is not repaid by her. Considering all these aspects, it probablise the defense of - 10 - NC: 2025:KHC-D:5668 CRL.A No. 100348 of 2019 the respondent/accused. Considering the same, the respondent/accused has rebutted the presumption drawn under Section 139 of NI Act that the cheque is issued for discharge of the debt. The appellant/complainant has not established borrowing of Rs.15,00,000/- by the respondent/accused. Without considering these aspects, the trial Court has erred in convicting the respondent/accused for the offence punishable under Section 138 of NI Act and the appellate Court has rightly considered the evidence and held that presumption under Section 139 of NI Act has been rebutted by the respondent/accused. Therefore, no grounds are made out for setting aside the well reasoned judgment passed by the appellate Court acquitting the respondent/accused. In the result, the appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE kmv CT-ASC