- 1 - NC: 2025:KHC-D:6560 CRL.A No. 100057 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO.100057 OF 2017 BETWEEN: S. JILANI S/O. ABDUL REHAMAN , AGED ABOUT 53 YEARS, OCC: BUSINESSMAN, R/O: ANANTASAYANAGUDI, HOSAPETE, DIST: BALLARI – 583 201. …APPELLANT (BY SMT. SOUBHAGYA S. VAKKUND, ADVOCATE FOR SRI. Y. LAKSHMIKANT REDDY, ADVOCATE) AND: K. SRIDHAR S/O. SATHYANARAYANA, AGED ABOUT: 39 YEARS, OCC: BUSINESSMAN, R/O: C/O HARIPRIYA LOGISTICS, VEERABHADRA PRASANNA NILAYA, PLOT NO.52, NEAR MARKANDESHWAR SCHOOL, WELCOME BOARD ROAD, SHANKAR GOUDA COLONY, M.P.PRAKASH NAGAR, HOSAPETE, DIST: BALALRI - 583 201. …RESPONDENT (BY SRI. J. BASAVARAJ, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C., 1973 SEEKING TO CALL FOR RECORDS AND SET ASIDE THE ORDER DATED 15.11.2016 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HOSAPETE IN CRIMINAL CASE NO. 1907 OF 2013 FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT AND TO PERMIT TO FILE APPLICATION FOR CONDO NATION OF DELAY BY GIVING LIBERTY TO THE APPELLANT IN THE INTEREST OF EQUITY. Digitally signed by SAMREEN AYUB DESHNUR Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - NC: 2025:KHC-D:6560 CRL.A No. 100057 of 2017 THIS CRIMINAL APPEAL, COMING ON FOR ORDERS 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 15.11.2016 passed in C.C.No.1907/2013 by the Additional Civil Judge and JMFC, Hosapete, 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 known to each other. Out of the said acquaintance, the respondent –accused has borrowed hand loan of Rs.3,00,000/- (rupees Three Lakhs Only) for his business purpose. For making repayment of amount borrowed, the respondent –accused has issued cheque – - 3 - NC: 2025:KHC-D:6560 CRL.A No. 100057 of 2017 Ex.P1 dated 26.03.2013 for Rs.3,00,000/- (rupees Three Lakhs Only) in favour the appellant –complainant. The appellant -complainant presented the said cheque and it came to be dishonored with endorsement “Funds Insufficient”. The appellant -complainant got issued legal notice dated 15.05.2023 though his counsel to the accused demanding payment of cheque amount. Inspite of service of notice, the respondent –accused has not paid cheque amount. Therefore, 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.1907/2013 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 examined himself as PW-1 and got marked documents as Ex.P-1 to P-7. The statement of accused has been recorded under Section 313 of Cr.P.C. The respondent – - 4 - NC: 2025:KHC-D:6560 CRL.A No. 100057 of 2017 accused has not made any defence evidence. 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 acquittal judgment is passed only on the ground that there is delay of two days in filing the complaint. She further submits that as per proviso of Sub-Section 1 of Section 142 of the N.I Act, delay can be condoned if the complainant satisfies the Court that there is sufficient cause for not filing the complaint within such period. She further submits that no application has been filed by the complainant seeking condonation of delay of - 5 - NC: 2025:KHC-D:6560 CRL.A No. 100057 of 2017 two days in filing the complaint. With these, she prayed to allow the appeal. 6. Learned counsel for the respondent –accused would contend that there is delay of two days in filling the complaint. Learned Magistrate considering the same has rightly held that offence punishable under Section 138 of the N.I Act is not made out and acquitted the respondent –accused for the said offence. 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. 8. The cheque –Ex.P1 stated to have been issued by the respondent –accused infavour of the appellant – complainant is dated 26.03.2013 for Rs.3,00,000/- (rupees Three Lakhs Only). The said cheque has been returned unpaid for reason “Funds Insufficient” under Bank Memo dated 04.05.2013 –Ex.P3. The complainant got issued legal notice dated 15.05.2013 calling upon the - 6 - NC: 2025:KHC-D:6560 CRL.A No. 100057 of 2017 respondent –accused to pay the cheque amount. The notice has been sent by RPAD to the respondent –accused. The said notice has been returned with endorsement “not claimed” and there is endorsement that “intimation delivered” on 19.05.2013. Considering the said aspect, the notice issued by the appellant –complainant has been deemed to have been served on the respondent –accused on 19.05.2013. Cause of action for filing the complaint commence after 15 days of the said service of notice i.e. 19.05.2013. Cause of action for filing the complaint commenced on 03.06.2013. The complainant has to file complaint within one month from the said date i.e. 03.06.2013. One month will be completed on 03.07.2013 and complaint has been filed on 05.07.2013. Considering the same, there is delay of two days in filing the complaint. Even though there is delay of two days in filing the complaint, the complainant has not filed any application as per proviso of Sub-Section 1 of Section 142 of the N.I Act. The delay can be condoned if the complainant satisfies the Court that there is sufficient - 7 - NC: 2025:KHC-D:6560 CRL.A No. 100057 of 2017 cause for not filing the complaint within such period. There is no application and no sufficient cause has been put forth by the complainant for delay of two days in filing the complaint. Considering the same, learned Magistrate has rightly held that the offence punishable under Section 138 of the N.I Act has not been made out and acquitted the respondent –accused for the said offence by impugned judgment. There are no grounds made out by the appellant –complainant to set 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.: 24