- 1 - HC-KAR NC: 2025:KHC:32842 CRL.A No. 1831 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE RAJESH RAI K CRIMINAL APPEAL NO. 1831 OF 2024 BETWEEN: S RAJESHWARI W/O KENCHAPPA, AGED ABOUT 36 YEARS, HOTEL THIRUMALA DABHA HOLALKERE ROAD, CHITRADURGA - 577 501 …APPELLANT (BY SMT. JYOTHI S.K, ADVOCATE) AND: S SURESH S/O THIMMANNA AGED ABOUT 41 YEARS, "ANJANEYA KRUPA" BESIDE PEER SAB COMPOUND, MASJID ROAD, NEAR WATER TANK, HOLALKERE ROAD, RIGHT CROSS, CHITRADURGA …RESPONDENT THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 26.06.2024 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC AT CHITRADURGA IN C.C.NO.2299/2021. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAJESH RAI K Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32842 CRL.A No. 1831 of 2024 ORAL JUDGMENT Though the matter is listed for Admission, since the Trial Court records have been received, with the consent of the learned counsel for the appellant, it is taken up for hearing. 2. The appellant has assailed the order passed in C.C.No.2299/2021 dated 26.06.2024 by the Prl. Civil Judge and JMFC at Chitradurga (hereinafter referred to as 'Trial Court'), whereby the Trial Court acquitted the accused-respondent for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as 'NI Act'). 3. For the sake of convenience, the parties are referred to by their ranks before the Trial Court. 4. The abridged facts of the case are as under: The complainant and accused are known to each other and the accused had borrowed a loan of Rs.5,00,000/- from the complainant on 30.01.2020 for his financial assistance and agreed to repay the same with interest at the rate of 1½ % per month. In order to discharge the said liability, the accused has issued post dated cheque bearing No.005010 dated 18.12.2020 - 3 - HC-KAR NC: 2025:KHC:32842 CRL.A No. 1831 of 2024 for a sum of Rs.5,00,000/- drawn on HDFC Bank, Chitradurga Branch. On instructions of the accused the complainant presented the said cheque for encashment through her banker i.e., Syndicate Bank, BD Road, Chitradurga and the same was returned with an endorsement "Account Closed" dated 29.01.2021. The said aspect was informed by the complainant to the accused by issuing legal notice dated 18.02.2021. However, the accused failed to repay the loan amount. Left with no other option, the complainant has filed private complaint against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of NI Act before the Trial Court. 5. To prove the case before the Trial Court, the complainant examined herself as PW.1 and marked 6 documents as Exs.P1 to P6. The accused also examined himself as DW1 and also examined two witnesses as DWs.2 and 3 on his behalf and marked 9 documents as Exs.D1 to D9. 6. On assessment of oral and documentary evidence, the Trial Court acquitted the accused for the offence punishable under Section 138 of NI Act. The said judgment is challenged in this appeal by the complainant. - 4 - HC-KAR NC: 2025:KHC:32842 CRL.A No. 1831 of 2024 7. I have heard the learned counsel Smt. Jyohti S.K., for the complainant-appellant. 8. The primary contention of the learned counsel for the appellant is that the Trial Court has grossly erred while acquitting the accused for the offence punishable under Section 138 of NI Act, despite the complainant placing sufficient evidence and documents to prove the case before the Trial Court. She further contended that, the cheque in question- Ex.P1 and the signature of the accused on it is not disputed by the accused. Such being the position, the initial presumption arises under Section 118 and 139 of NI Act favours the complainant. The said initial presumption is not rebutted by the accused by placing probable defence. She further contended that the Trial Court has grossly erred while acquitting the accused for the reason that the complainant has failed to prove her lending capacity, though she has produced the bank statements which shows that on 28.01.2020 i.e., two days prior to advancing the loan amount, the complainant has withdrawn a sum of Rs.5,00,000/- from her husband's bank account. As such it could be presumed that the said amount has been handed over by the complainant to the accused on 30.01.2020. - 5 - HC-KAR NC: 2025:KHC:32842 CRL.A No. 1831 of 2024 Further the Trial Court also erred by placing reliance on Ex.D4 i.e., the document executed by the mother of the complainant one Gurusiddamma for having repaid the loan amount obtained by the accused in the year 2015. According to the learned counsel, Ex.D4 is no way connected to the present transaction held between the complainant and the accused. Further, the accused also failed to prove his defence that he had borrowed an amount of Rs.50,000/- each on two occasions from the mother of the complainant and repaid the same to her and the cheque in question was issued to the mother of the complainant. In such circumstances the impugned judgement suffers from perversity. Accordingly, she prays to allow the appeal and to convict the accused. 9. I have given my anxious consideration on the submission made by the learned counsel for the appellant and also perused the Trial Court records. 10. It could be gathered from records, the cheque in question-Ex.P1 and the signature of the accused on it is not seriously disputed by the accused. However, it is the specific defence of the accused that the cheque in question-Ex.P1 is - 6 - HC-KAR NC: 2025:KHC:32842 CRL.A No. 1831 of 2024 issued to the mother of the complainant one Gurusiddamma in the year 2015 as security for the loan amount received by the accused from the said Gurusiddamma i.e., Rs.50,000/- each on two occasions. Further the accused has repaid the said amount to the mother of the complainant in the year 2015 and to that effect document/affidavit executed by the said Gurusiddamma in the presence of DW2 as per Ex.D4. However, the security cheque issued by the accused was not returned by the mother of the complainant and subsequently after her demise, the complainant has presented the said cheque for unlawful gain. To substantiate this defence, the accused apart from examining himself as DW.1, also examined two other witnesses on his behalf as DWs.2 and 3. On perusal of the evidence of the DW2 one Eshwar, he has stated in his evidence, in the year 2015 the accused has availed the loan of Rs.50,000/- each on two occasions from the mother of the complainant and issued two cheques i.e., bearing No.005010 and cheque bearing No.005012. Further on 30.03.2015 the accused had repaid the said loan amount to the said Gurusiddamma and accordingly she executed a document/affidavit for having received the said loan amount as per Ex.D4. DW2 is a witness for Ex.D4. - 7 - HC-KAR NC: 2025:KHC:32842 CRL.A No. 1831 of 2024 Nevertheless the cheque in question-Ex.P1 i.e., cheque bearing No.005010 is one of the cheque mentioned in Ex.D4. 11. In such circumstances, it could be presumed that the defence of the accused is a probable one. Additionally, it is also elicited in the cross-examination of PW1-complainant, as on advancing the loan amount i.e. on 30.12.2020, there was no balance in the account of her husband and she has not shown any other income to lend a huge amount of Rs.5,00,000/- to the accused as a hand loan. Further it is also elicited in the cross-examination of the PW1 that she had filed many cases against different persons under the provisions of the NI Act. 12. No doubt initial presumption arising under Section 118 and 139 of NI Act favours the complainant. However, it is equal settled position of law by this Court and the Hon'ble Apex Court that the initial presumption arising under Section 118 and 139 is rebutted by the accused by placing probable defence. In the instant case the accused has rebutted initial presumption by placing reliance on Ex.D4 which was admitted by the complainant. This aspect of the matter is properly appropriated by the Trial Court and passed the reasoned judgement which - 8 - HC-KAR NC: 2025:KHC:32842 CRL.A No. 1831 of 2024 does not call for any interference. Accordingly, I pass the following: ORDER The Criminal Appeal No.1831/2024 is dismissed. SD/- (RAJESH RAI K) JUDGE CR List No.: 1 Sl No.: 15