- 1 - HC-KAR NC: 2025:KHC-D:8148 CRL.A No. 100353 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE RAJESH RAI K CRIMINAL APPEAL NO.100353 OF 2017 (A) BETWEEN: SHRI DURADUNDESHWAR MALLIKARJUN BASARAKOD AGE: 46 YEARS, OCC. TEACHER, R/O. ULLAGADDI ONI, BHUSAPPA CHOWK, DHARWAD. …APPELLANT (BY SRI. RAMESH B. CHIGARI, ADVOCATE) AND: MAHANTESH S/O. SHIVALINGAYYA HIREMATH, AGE: 43 YEARS, OCC. BUSINESS, R/O. 4TH CROSS, KALYAN NAGAR, DHARWAD. …RESPONDENT (BY SRI. N.D. GUNDE, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C., SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE LEARNED PRL. CIVIL JUDGE AND PRL. CIVIL JUDGE AND PRL. JMFC, DHARWAD, IN C.C.NO.650 OF 2016 BY ITS ORDER DATED 27.09.2017 AND CONVICT THE ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT, BY ALLOWING THIS APPEAL. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.07.02 10:29:15 +0530 - 2 - HC-KAR NC: 2025:KHC-D:8148 CRL.A No. 100353 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE RAJESH RAI K) In this appeal, the appellant/complainant has assailed the judgment dated 27.09.2017 in C.C.No.650/2016 passed by the Principal Civil Judge and Principal JMFC, Dharwad (hereinafter referred to as the 'trial Court'), whereby the trial Court acquitted the accused for the offence punishable under Section 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 accused are friends. The accused is the owner of Shivaganga Talkies situated at Kalaghtagi, Dharwad and for repair work of the said talkies, he approached the complainant for financial assistance of Rs. 5,00,000/-. Based on his request, the complainant advanced an amount of ₹5,00,000/- to the accused by way of cash on 11.11.2008. Subsequently, the accused once again received a sum of Rs.70,000/- from the complainant on 02.05.2012 for the same - 3 - HC-KAR NC: 2025:KHC-D:8148 CRL.A No. 100353 of 2017 purpose. Later, accused received amount from the complainant on several times totaling to a sum of Rs.14,05,000/-. While obtaining the said amount, the accused promised the complainant to repay the said amount within a stipulated period and he failed to repay the same, as such the complainant insisted the accused to repay the hand loan. Finally, the accused issued a cheque bearing No.084602 dated 27.04.2015, drawn on Axis Bank, Dharwad Branch for a sum of ₹14,05,000/-. The said cheque was presented by the complainant for encashment through his banker. However, the said cheque was dishonored for the reason ‘Insufficient funds’ vide memo dated 11.05.2015. The said aspect was intimated by the complainant to the accused through legal notice dated 07.10.2015. The said legal notice was served on the accused and he replied to it by denying the averments made in the legal notice. Thereafter, left with no other option, the complainant filed a private complaint under Section 200 of Cr.P.C., before the learned Magistrate against the accused for the offence punishable under Section 138 of the N.I. Act. 4. To prove the case before the trial Court, the complainant himself examined as PW.1 and marked 31 - 4 - HC-KAR NC: 2025:KHC-D:8148 CRL.A No. 100353 of 2017 documents as Exs.P1 to P31. The accused also examined himself as DW.1 and marked 11 documents as Ex.D1 to Ex.D11. 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. The said judgment is challenged in this appeal by the complainant. 6. Heard the learned counsel Sri. Ramesh B. Chigari for the appellant-complainant and the learned counsel Sri. N.D.Gunde for the respondent-accused. 7. The primary contention of the learned counsel for the appellant-complainant is that the trial Court has grossly erred in acquitting the accused for the offence punishable under Section 138 of the N.I. Act despite the complainant placed sufficient evidence to prove the legally recoverable debt by the accused. He further contended that in the cross-examination of DW.1 i.e., accused he has categorically admitted that 11.11.2008 he had obtained a hand loan of Rs.5,00,000/- from the complainant and he executed a acknowledgment to that effect. Later, he issued the cheques to the complainant. In such - 5 - HC-KAR NC: 2025:KHC-D:8148 CRL.A No. 100353 of 2017 circumstance, the hand loan obtained by the accused and issuance of cheque in question are proved. Hence, the complainant discharged the initial presumption available under Sections 118 and 139 of the N.I. Act and the same is not rebutted by the accused. In such circumstance, the trial Court erred in acquitting the accused. Accordingly, he prays to set aside the judgment of acquittal by convicting the accused. 8. Per contra, learned counsel appearing for the respondent-accused contended that the judgment challenged in this appeal does not suffer from any perversity or illegality. He further contended that the complainant has miserably failed to prove his lending capacity of huge sum of Rs.14,05,000/-. He being a teacher, he failed to explain as to how he paid the huge sum by way of cash. Moreover, in his cross-examination he stated that he had contested for the MLC election in the West Teachers Constituency and he submitted the assets and liability declaration as per Ex.D2 and D2(a) wherein he has not stated about the hand loan given to the accused. Further, the cheque in question was returned on 11.05.2015, the legal notice was sent on 07.10.2015. As such, the complainant failed to comply the mandatory provision under Section 138(b) of the NI Act. - 6 - HC-KAR NC: 2025:KHC-D:8148 CRL.A No. 100353 of 2017 This aspect was well considered by the trial Court and rightly acquitted the accused. Accordingly he prays to dismiss the appeal. 9. Having heard the learned counsel for the parties and on perusal of the entire materials available on record, the sole point that would surface for my consideration is: “Whether the trial Court is justified in acquitting the accused for the offence punishable under section 138 of the N.I. Act? 10. I have given my anxious consideration to the arguments advanced by both the learned counsel and perused the materials on record. 11. In the instant case, the cheque in question-Ex.P2 was returned on 11.05.2015 with an endorsement as ‘Insufficient funds’. However, the complainant issued legal notice on 07.10.2015 i.e., after lapse of 5 months. Section 138(b) inter alia provides that ‘the payee has to make demand for the payment of money by giving a notice to the drawer of the cheque within 30 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid’. In - 7 - HC-KAR NC: 2025:KHC-D:8148 CRL.A No. 100353 of 2017 the instant case, the notice was issued after lapse of 5 months. In such circumstance, the complainant failed to comply the mandatory requirement under section 138(b) of the NI Act. Further, as rightly contended by the learned counsel for the accused, since the complainant failed to disclose the loan transaction between himself and accused in the ‘Asset and Liability Form’ submitted by him to the Election authority, his claim of advancing loan amount to the accused cannot be believed. In that view of the matter, the trial Court has rightly acquitted the accused for the offence punishable under Section 138 of N.I. Act. Hence, interference in the impugned judgment does not call for. Accordingly, I answer the point raised above in the ‘affirmative’ and proceed to pass the following: ORDER The Criminal Appeal is dismissed being devoid of merits. SD/- (RAJESH RAI K) JUDGE HKV/CT:PA LIST NO.: 1 SL NO.: 6