- 1 - NC: 2025:KHC-D:6841 CRL.A No. 100115 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO.100115 OF 2017 BETWEEN: SHANKRAPPA S/O. NINGAPPA HULIGEMMANAVAR, AGE:36 YEARS, OCC:AUTO DRIVER, R/O: KATIGALLI, KURUBAGERI, NOW AT KUNABEVU PLOT, RANEBENNUR, DIST:HAVERI. …APPELLANT (BY MS. RESHMA MADIWALAR, ADVOCATE FOR SRI. T. HANUMAREDDY, ADVOCATE) AND: SAYED IJAJ S/O. SAYED AHAMAD PATIL, AGE:30 YEARS, OCC:TEACHER, R/O: GOVT HIGHER URDU PRIMARY SCHOOL, MASOOTI ONI KOD, TQ: HIREKERUR, DIST: HAVERI. …RESPONDENT (BY SRI. SUBHASH J. BADDI, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CR.P.C. SEEKING TO CALL FOR THE RECORDS IN C.C.NO.482/2016 DATED 28.02.2017 ON THE FILE OF THE LEARNED ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT RANEBENNUR AND TO SET-ASIDE THE JUDGMENT OF ACQUITTAL IN C.C.NO. 482/2016 DATED 28.02.2017 ON THE FILE OF THE LEARNED ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT RANEBENNUR AND CONVICT THE RESPONDENT/ACCUSED FOR OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT. PASS SUCH OTHER ORDER/S AS THIS HON’BLE COURT DEEM FIT IN THE CIRCUMSTANCES OF THE CASE. Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - NC: 2025:KHC-D:6841 CRL.A No. 100115 of 2017 THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT This appeal is filed by the appellant -complainant challenging the judgment of acquittal dated 28.02.2017 passed in C.C.No.482/2016 by the Additional Senior Civil Judge and JMFC, Renebennur, whereunder the respondent -accused has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I. Act’, for short) 2. The case of the appellant –complainant in brief is as under: The appellant –complainant and respondent -accused are friends. The respondent –accused to meet medical expenses of children has borrowed a sum of Rs.5,00,000/- (rupees five lakhs only) from the complainant and stated that he would repay the same amount soon. When the complainant started demanding the repayment of the - 3 - NC: 2025:KHC-D:6841 CRL.A No. 100115 of 2017 same, accused kept on postponing and on 25.02.2013 he issued cheque for a sum of Rs.5,00,000/- (rupees five lakhs only) bearing No 0079546 drawn on Sri Basaveshwar Urban Co-operative bank in the name of the complainant. When the appellant –complainant presented the said cheque for encashment on 26.12.2013 the same was returned as ‘funds insufficient’. Therefore the appellant -complainant issued a legal notice to the accused calling upon him to make the payment and same has been served on the respondent –accused. The respondent – accused has not repaid the cheque amount, the appellant –complainant has filed a private complaint against the respondent –accused for the offence punishable under Section 138 of the N.I Act. 3. Learned Magistrate has taken cognizance and registered C.C.No.482/2016 against the respondent - accused for the offence punishable under Section 138 of N.I. Act. The plea of the accused has been recorded. The appellant -complainant in order to prove his case has - 4 - NC: 2025:KHC-D:6841 CRL.A No. 100115 of 2017 examined himself as PW-1 and got marked documents as Ex.P-1 to P-5. The statement of accused has been recorded under Section 313 of Cr.P.C. The respondent – accused has examined himself as D.W.1 and marked documents EX.D1 to D5. The learned Magistrate after hearing the arguments on both sides, has formulated the points for consideration and passed the impugned judgment of acquittal of the respondent –accused for offence punishable under Section 138 of the N.I Act. The said judgment of acquittal has been challenged by the appellant -complainant in this appeal. 4. Heard learned counsel for appellant and learned counsel for the respondent. 5. Learned counsel for the appellant –complainant would contend that the respondent –accused has admitted his signature on cheque –Ex.P1 and therefore, the presumption has to be drawn under Section 139 of the N.I Act. Without considering this aspect, learned Magistrate - 5 - NC: 2025:KHC-D:6841 CRL.A No. 100115 of 2017 has erred in acquitting the respondent –accused for offence punishable under Section 138 of the N.I Act. With this, she prays to allow the appeal. 6. Learned counsel for the respondent –accused would contend that the respondent –accused has taken up defence that cheque –Ex.P1 has given as security for earlier loan of Rs.50,000/- and inspite of repayment of the said loan, cheque given as security has not been returned. P.W.1 has admitted that accused borrowed Rs.50,000/- from him earlier. The evidence of D.W.1 regarding misuse of cheque given as security has not been denied in his cross examination. Considering the said aspect, learned Magistrate has rightly acquitted the respondent –accused for offence punishable under Section 138 of the N.I Act. With these, he prays for dismissal of the appeal. 7. Having heard learned counsels, this Court has perused the impugned judgment and trial Court records. - 6 - NC: 2025:KHC-D:6841 CRL.A No. 100115 of 2017 It is the case of the appellant -complainant that the respondent –accused has borrowed Rs.5,00,000/- (rupees five lakhs only) agreeing to repay the same at the earliest. The respondent –accused in order to repay the said loan has issued cheque –Ex.P1 for Rs.5,00,000/- (rupees five lakhs only). The respondent –accused has admitted his signature on cheque –Ex.P1. As respondent –accused has admitted his signature on cheque –Ex.P1, the presumption has to be drawn under Section 139 of the N.I Act that the cheque has been issued for discharge of debt. The said presumption is rebuttable presumption. The standard of proof for rebutting the said presumption is preponderance of probability. 8. The respondent –accused has taken up defence that cheque –Ex.P1 has been given as security for he borrowing Rs.50,000/- (rupees fifty thousand only) from the appellant –complainant and it has been misused. P.W.1 has admitted in his cross examination that the respondent –accused had earlier borrowed Rs.50,000/- - 7 - NC: 2025:KHC-D:6841 CRL.A No. 100115 of 2017 (rupees fifty thousand only). D.W.1 –accused in his chief examination has stated that he had given cheque as security when he borrowed Rs.50,000/-(rupees fifty thousand only) and inspite of repayment of the same, the said cheque has not been returned and it has been misused by the appellant –complainant. The said aspect has not been denied by the complainant in the cross examination of D.W.1. The date of borrowing has not been stated in the demand notice, complaint and chief examination of P.W.1. On perusal of the cheque –Ex.P1 it appears that it is cheque leaf of year 199__. The complainant is auto driver. Considering the above aspects, the respondent –accused has rebutted the presumption drawn under Section 139 of the N.I Act. The appellant –complainant has not established the borrowing of Rs.5,00,000/- (rupees five lakhs only) by the respondent –accused. Considering the same, the learned Magistrate has rightly acquitted the respondent –accused for offence punishable under Section 138 of the N.I Act. - 8 - NC: 2025:KHC-D:6841 CRL.A No. 100115 of 2017 There are no grounds made out for setting aside the impugned judgment of acquittal. 9. In the result, the appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DSP CT-ASC List No.: 1 Sl No.: 32