- 1 - NC: 2025:KHC-D:5118 CRL.A No. 100101 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO.100101 OF 2017 BETWEEN: SANTOSH PONNOSE S/O. GEORGE THOMAS, AGED ABOUT: 38 YEARS, EMPLOYEE, VISWA FABRICATIONS, R/O: WARD NO.32, PASTERS COMPOUND BALLARI CITY CORPORATION, BALLARI GROUNDS, FORT, BALLARI. …APPELLANT (BY SRI. MANJUNATHA G. PATIL, ADVOCATE) AND: JANE PRATIMA W/O. CHIRSTIPHER SUDHEER, MAJOR, TEACHER NEAR MAK AZAD SCHOOL, MOHAMMADIYA COMPOUND, ZILLA PARISHAD ROAD, FORT, BALLARI. …RESPONDENT (BY SRI. J. BASAVARAJ, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CR.P.C., SEEKING TO CALL FOR THE LOWER COURT RECORDS AND TO SET ASIDE THE JUDGMENT PASSED IN C.C.NO. 07 OF 2013 DATED 03.01.2017 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC AT BALLARI DISTRICT AND CONVICT THE ACCUSED/RESPONDENT UNDER SECTION 138 OF N.I. ACT, 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:5118 CRL.A No. 100101 of 2017 ORAL JUDGMENT This appeal is filed by the complainant praying to set aside the judgment of acquittal dated 03.01.2017 passed in C.C. No.7/2013 by the learned Principal Civil Judge and JMFC, Ballari, wherein the respondent/accused has been acquitted of the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘NI Act’, for short). 2. The case of the appellant/complainant in brief is as under: The appellant/complainant is acquainted with the respondent/accused and both of them belong to same community. As the accused with her family members constituted a mission, they created belief in the minds of the community members, collected money under the pretext of providing jobs to the community members. Believing the assurance of the accused, the complainant paid a sum of Rs.2,50,000/- in cash with a hope of getting a job in her mission but the accused did not keep up her - 3 - NC: 2025:KHC-D:5118 CRL.A No. 100101 of 2017 promise. On information to the Police, they made a settlement in which the accused promised to return the cash and issued a cheque bearing No.001932 dated 10.09.2012 drawn on ICICI Bank, Ballari for a sum of Rs.2,50,000/- in discharge of liability. The said cheque, on presenting, came to be dishonoured on 27.09.2012 for the reason “account closed”. This fact was informed to the accused through legal notice dated 01.10.2012. In spite of service of notice, the accused did not make payment of the cheque amount within the statutory period. Therefore, the complainant filed a private complaint against the respondent/accused for an offence under Section 138 of NI Act. The learned Magistrate has taken cognizance and registered C.C. No.7/2013 against the respondent/accused for an offence under Section 138 of NI Act. The plea of the accused has been recorded. The complainant, in order to prove his case, examined himself as PW.1 and got marked 6 documents as Exs.P-1 - 4 - NC: 2025:KHC-D:5118 CRL.A No. 100101 of 2017 to P-6. The statement of the accused has been recorded under Section 313 of the Code of Criminal Procedure. The accused examined the Manager of the Bank as DW.1 and got marked Ex.D-1. The learned Magistrate after hearing the arguments on both side, has formulated the points for consideration and passed the impugned judgment of acquittal. 3. The said judgment of acquittal has been challenged by the appellant in this appeal. 4. Heard the learned counsel for the appellant. 5. Learned counsel for the appellant would contend that even though the respondent/accused in his reply-Ex.P-6 has denied the entire transaction and existence of bank account with ICICI Bank, Bellary, DW-1, who is the Deputy Manager of the Bank, in his cross- examination has admitted that Ex.P-1-cheque belongs to their Bank and Ex.P-2 Bank memo is issued by their Bank. - 5 - NC: 2025:KHC-D:5118 CRL.A No. 100101 of 2017 The said aspect itself indicate that the cheque has been drawn on ICICI bank and it has been dishonored for reason ‘ account closed’. It appears that the account has been closed after issuance of the cheque. The accused has not entered the witness box in order to establish his defense. Without considering all these aspects, the learned Magistrate has passed the judgment of acquittal. With this, he prayed to allow the appeal and convict the respondent/accused under Section 138 of NI Act. 6. Having heard the learned counsel, the Court has perused the impugned judgment and the trial Court records. 7. Considering the points urged, the following point arises for consideration: Whether the learned Magistrate has erred in acquitting the respondent/accused of the offence under Section 138 of NI Act? 8. My answer to the above said point is in the negative for the following reasons: - 6 - NC: 2025:KHC-D:5118 CRL.A No. 100101 of 2017 9. The transaction as stated by the complainant in his notice-Ex.P-3, complaint and in his examination-in- chief, is that, the complainant has given Rs.2,50,000/- in cash to the accused, as the accused promised to provide a job in a mission started by them and did not provide a job as promised. It is the further case of the complainant that, the complainant had made a complaint to the police and the police secured the accused and there was a compromise and therefore, the accused has issued Ex.P-1- cheque for Rs.2,50,000/- drawn on ICICI Bank, Ballari. Considering the same, it is clear that Ex.P-1-cheque has been issued for making payment of amount stated to have been given by the complainant to the accused for getting a job in the mission. Therefore, a question arises whether, the liability of the respondent/accused is a legally enforceable liability and whether cheque-Ex.P-1 is issued for making payment of legally enforceable liability, as the amount given by the complainant to the accused in a sum of Rs.2,50,000/- is in order to get a job in the mission. The said giving of money to get a job is not a legal - 7 - NC: 2025:KHC-D:5118 CRL.A No. 100101 of 2017 transaction and it amounts to giving a bribe to get a job. Therefore, issuance of cheque-Ex.P-1 is not towards legally enforceable liability. High Court of Orissa at Cuttack in the case of Smt. Anupama Biswal v State of Odisha and another1 has held that, the complainant being a party to immoral transaction cannot derive the benefit of the same and prosecute the accused for the offence under Section 138 of NI Act. Even though, the trial Court has not considered the above aspect, but the trial Court has passed the impugned judgment of acquittal acquitting the respondent/accused of the offence under Section 138 of NI Act. 10. For the aforesaid reasons, the appellant/complainant has not made out a case for conviction of the respondent/accused for an offence under Section 138 of NI Act. There are no grounds for setting aside the judgment of acquittal and convict the 1 Disposed of on 04.03.2025 - 8 - NC: 2025:KHC-D:5118 CRL.A No. 100101 of 2017 respondent/accused for an offence under Section 138 of NI Act. In the result, the appeal is dismissed. SD/- (SHIVASHANKAR AMARANNAVAR) JUDGE Kmv CT-ASC