- 1 - HC-KAR NC: 2025:KHC:41299 CRL.A No. 1236 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.1236 OF 2018 (378(Cr.PC) / 419(BNSS)) BETWEEN: SRI B. RAMANA S/O SRI LATE LINGAPPA, AGED ABOUT 49 YEARS, R/AT NO.15/A, MANIMA-2D-2, 13TH MAIN, MARUTHI LAYOUT, BHUVNESHWARI NAGAR, NEAR GOLDEN APARTMENTS, BENGALURU-560024. …APPELLANT (BY SRI. MITHUN G.A., ADV.) AND: SRI P. N. MANJUNATH S/O LATE P. NARAYANA, AGED ABOUT 53 YEARS, R/AT NO.190, SOUNDARYA NILAYA, 4TH MAIN, 5TH CROSS, DOLLORS LAYOUT, J.P.NAGAR, 4TH STAGE (SARAKKI) BENGALURU-560078. AND ALSO AT: NO.30, GANIGARa 'C' LANE, NAGARATHPET CROSS, BENGALURU-560002 …RESPONDENT (BY SMT. RAKSHITHA P. SINGH, ADV. FOR SRI. S. BALAKRISHNAN, ADV.) Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:41299 CRL.A No. 1236 of 2018 THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 08.06.2018 PASSED BY THE XV A.C.M.M., BANGALORE IN C.C.NO.12223/2017 AND ETC. THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT Appellant/accused has preferred this appeal against the Judgment of acquittal dated 08th June, 2019 passed in CC No.12223 of 2017 by the XV Additional Chief Metropolitan Magistrate, Bangalore City (for short “the trial Court”). 2. For the sake of convenience, the parties herein are referred to as per the status before the trial Court. 3. Facts leading to this appeal are that, towards discharge of loan borrowed in a sum of Rs.9.00 lakh, the accused/respondent issued five cheques of different dates amounting to Rs.9.00 lakh, in favour of the appellant. Out of the said five cheques, upon presentation of the first cheque bearing No.061851 dated 30th January, 2017 for Rs.1,00,000/- the complainant-Bank the same was dishonoured for want of funds. the appellant did not receive the cheque. After repeated visits to the Bank, the appellant came to know that the cheque - 3 - HC-KAR NC: 2025:KHC:41299 CRL.A No. 1236 of 2018 was dishonoured by the respondent Bank, but the Bank did not return the original cheque to the appellant. On 20th March, 2017, the appellant addressed a letter to the Bank for return of original cheque. The appellant-Bank through its letter dated 18th April, 2017 informed the appellant that they have lost the cheque and issued scanned copy of the cheque. During the trial, the appellant made an application under Section 65 of Indian Evidence Act, for the production of secondary evidence as primary evidence is lost. The trial Court rejected the application filed by the appellant followed by acquitting the respondent. Hence, the present appeal. 4. I have heard the arguments on both sides and perused the material placed before me. The complainant has filed complaint under section 138 of Negotiable Instruments Act, 1881. In the complaint, the complainant has clearly stated that the complainant-Bank did not return the subject cheque. On 20th March, 2017, the complaint issued letter and demanded for the return of the instrument i.e. the subject cheque. On receipt of the complainant’s letter for return of the dishonoured cheque, the complainant-Bank by its letter dated 18th April, 2017 expressed its inability to return the same and informed - 4 - HC-KAR NC: 2025:KHC:41299 CRL.A No. 1236 of 2018 that the subject cheque was misplaced and also issued a scanned copy of the cheque deposit details of the complainant dated 30th January, 2017. The appellant-B. Ramana has also filed his affidavit by way of sworn statement, in which he has stated the same. Considering the sworn statement of the complainant, the trial Court has taken cognizance against the accused for offences under section 138 of Negotiable Instruments Act and ordered to register a case in register No.3. Accordingly, case was registered in CC No.12223 of 2017. The trial Court has recorded the plea of the accused. Accused pleaded not guilty. To prove the guilt of the accused, complainant has filed his evidence by way of affidavit instead of his examination-in-chief and also filed application under Section 65 of Indian Evidence Act, 1872 stating that the cheque bearing No.061851 for Rs.1,00,000/- dated 30th January, 2017 drawn on Indian Bank, BTM Layout Branch, Bangalore, issued in favour of the complainant for encashment, the complainant-Bank presented the said cheque through HDFC Bank, Race Course Road Branch, Bangalore. The complainant received the intimation about dishonour of the abovesaid cheque on 08th March, 2017. The complainant-Bank did not return the cheque. - 5 - HC-KAR NC: 2025:KHC:41299 CRL.A No. 1236 of 2018 On 20th March, 2017 he addressed letter to the Bank for return of the said cheque dated 30th January, 2017. On receipt of the letter dated 20th March, 2017, the Complainant-Bank informed that the subject cheque dated 30th January, 2017 bearing No.061851 was misplaced by the complainant-Bank and the scanned copy of the original cheque was issued by the complainant-Bank. Hence, he filed the application. After filing the application, though the other side have not filed any objection, the trial Court has passed the order rejecting the application. The order dated 17th January, 2018 passed by the trial Court reads as under: "The complainant filed the application under Section 65 of the Evidence Act and sought the relief for production for secondary evidence regarding cheque. The complainant has filed this complaint against accused for the alleged offence punishable under Section 138 of NI Act alleging that the cheque given by the accused was bounced. Thus the case is based on alleged cheque. Therefore, the complainant bound to produce primary evidence to proceed with the case. He is not permissible to produce secondary evidence. Hence, no merit in the application. Accordingly, I proceed to pass the following: O R D E R Application is rejected." - 6 - HC-KAR NC: 2025:KHC:41299 CRL.A No. 1236 of 2018 5. Though the trial Court has not objected while taking cognizance for the offence under Section 138 of Negotiable Instruments Act at the initial stage, the trial Court has observed in its order that the primary evidence is not produced. The trial Court has not assigned any reason as the provisions of Sections 63(2) and 65(c) and Section 66 of Indian Evidence Act, 1872. Section 65 of Indian Evidence Act, contemplates as to admissibility of secondary evidence. Considering the provisions of Sections 63(2) and 65(c) and 66 of Indian Evidence Act, 1872, I am of the opinion that the scanned copy of the cheque issued by the Bank is admissible in evidence. The order passed by the trial Court dated 17th January, 2018 is not sustainable under law. 6. The learned Counsel for the complainant would submit that the trial Court has not provided an opportunity to produce copy of Bank endorsement, copy of legal notice, registered postal covers, etc. Since this Court has expressed its opinion that the Application filed under section 65 of Indian Evidence Act is permissible, the matter is to be remitted back to the trial Court with a direction to provide opportunity to both the parties - 7 - HC-KAR NC: 2025:KHC:41299 CRL.A No. 1236 of 2018 to adduce their evidence. Accordingly, I proceed to pass the following: O R D E R i) Appeal is allowed in part; ii) Judgment of acquittal passed by the XV Additional CMM in CC No.12223 of 2017 dated 8 June 2018, is set aside; iii) The application dated 12th October, 2017 filed by the complainant under section 65 of Indian Evidence Act before the trial Court is allowed; iv) The appellant is permitted to produce secondary evidence, i.e. with regard to cheque No.061851; v) The trial Court is directed to provide opportunity to both the parties to adduce their evidence; - 8 - HC-KAR NC: 2025:KHC:41299 CRL.A No. 1236 of 2018 vi) It is made clear that this Court has not expressed any opinion on the merits of the case, including the cheque in question; vii) The respondent/accused is it liberty to take all the defence on the cheque in question, bank endorsement, and other documents; viii) Both the parties are directed to appear before the trial Court on 03rd December 2025, without seeking any further notice; ix) Office is directed to send the copy of this order along with the trial Court records to the concerned Court. Sd/- (G BASAVARAJA) JUDGE lnn List No.: 1 Sl No.: 99