- 1 - HC-KAR NC: 2025:KHC-D:8941 CRL.A No. 100109 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAJESH RAI K CRIMINAL APPEAL NO.100109 OF 2017 (A) BETWEEN: ARYA VYSYA VIVIDHODDESHA SAHAKARA SANGAHA NIYAMITHA(REGD) 1ST FLOOR, KLS PLAZA, SGS TALKIES ROAD, HOSAPETE, DIST. BELLARI. REPRESENTED BY ITS MANAGER, S.RAGHAVENDRA S/O. S. UMMANNA SETTY, AGE: 37 YEARS, R/O. HOSAPETE, DIST. BALLARI. …APPELLANT (BY SRI. RAMESH I. ZIRALI, ADVOCATE) AND: B. YAMANAPPA S/O. RAMAPPA, AGE: MAJOR, HINDU CEMENT BUSINESS, R/O. ANANTASYANAGUDI, HOSAPETE, DIST. BALLARI. …RESPONDENT (BY SRI. PRASHANT S. KADADEVAR, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CR.P.C., PRAYING TO CALL FOR RECORDS AND TO SET ASIDE THE JUDGMENT OF ACQUITTAL IN C.C.NO. 101 OF 2013 (OLD C.C.NO. 522 OF 2013) DATED 23.02.2016 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND JMFC AT HOSAPETE AND CONVICT THE RESPONDENT / ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT. THIS APPEAL, COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.07.22 10:20:31 +0530 - 2 - HC-KAR NC: 2025:KHC-D:8941 CRL.A No. 100109 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE RAJESH RAI K) In this appeal, the appellant/complainant assailed the judgment passed in CC No.101/2013 (Old CC No.522/2013) dated 23.02.2016 by the Prl. Senior Civil Judge and JMFC, Hospet1, whereby the trial Court acquitted the accused/respondent for the offence punishable under Section 138 of Negotiable Instruments Act, 18812. 2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. 3. Briefly stated the facts are that: The complainant is a registered Co-operative Bank, where the accused borrowed a loan of Rs.3,00,000/- on 13.09.2010 under Loan Account No.214/M4 for his business purpose. Though he agreed to repay the same as per terms agreed by him, he failed to do so. Finally, he issued a cheque bearing No.10214589, dated 13.08.2012, drawn on Vikas Souhardha Co-operative Bank Limited, Hospet, for a sum of Rs.3,00,000/-. The same was presented by the complainant for encashment, 1 Hereinafter referred to as ‘trial Court’ for short 2 Hereinafter referred to as ‘NI Act’ for short - 3 - HC-KAR NC: 2025:KHC-D:8941 CRL.A No. 100109 of 2017 however, it was returned with an endorsement “insufficient funds”. Later, the complainant got issued a legal notice to the accused. However, the accused neither replied the said notice nor repaid the loan amount. Hence, the complainant left with no other option, filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of NI Act before the trial Court. 4. To prove the case, the complainant/Bank examined its authorized person as PW1 and marked 6 documents as Ex.P1 to P6. The accused did not examine any witness on his behalf, however, marked 2 documents on his behalf as Ex.D1 & D2. 5. After 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 under challenge in this appeal by the complainant. 6. Heard the learned counsel Sri.Ramesh I Zirali for the appellant/complainant, so also learned counsel Sri.Prashant S Kadadevar for the respondent/accused. - 4 - HC-KAR NC: 2025:KHC-D:8941 CRL.A No. 100109 of 2017 7. The primary contention of the learned counsel for the appellant/complainant is that the trial Court grossly erred while acquitting the accused for the offence punishable under Section 138 of NI Act, despite the complainant placing sufficient evidence and documents on record to prove the case. He contended that the complainant being a Co-operative Bank, advanced a loan of Rs.3,00,000/- to the accused under Loan Account No.214/M4 and the same was not repaid by the accused. Even otherwise, the accused failed to produce any document to substantiate that the loan was repaid by him. Moreover, the accused has not disputed the issuance of cheque and the signature on it. In such circumstance, the complainant has successfully proved the initial burden under Sections 118 and 139 of the NI Act. However, the accused failed to rebut the said presumption with a probable defence. He also contended that except mere denial of obtaining loan from the Bank in the cross-examination, the accused did not choose to examine any witness to prove his defence. In such circumstance, the trial Court committed an error in acquitting the accused. Thus, he prays to allow the appeal by setting aside the impugned - 5 - HC-KAR NC: 2025:KHC-D:8941 CRL.A No. 100109 of 2017 judgment of acquittal and to convict the accused for the offence under Section 138 of NI Act. 8. Per contra, learned counsel for the respondent/accused contended that the trial Court after meticulously examining the entire evidence on record passed a reasoned judgment, which does not warrant interference at the hands of this Court. He contended that the complainant failed to prove the advancement of loan of Rs.3,00,000/- to the accused. Per contra, the accused has produced Exs.D1 and D2, the receipts for having paid a sum of Rs.2,29,414/-. However, the complainant/Bank has neither produced ledger extract nor placed any document to prove that the accused was owing a sum of Rs.3,00,000/- to the complainant/Bank in Loan Account No.214/M4. He also contended that complainant admitted in his cross-examination that there was another loan account in the name of the accused bearing Loan Account No.203/203/M4. If that be so, the complainant is unable to advance any loan to the accused without repaying of earlier loan amount by him. These aspects are properly appreciated by the trial Court in a reasoned judgment. Hence, he prays to dismiss the appeal. - 6 - HC-KAR NC: 2025:KHC-D:8941 CRL.A No. 100109 of 2017 9. Having heard the learned counsel for the respective parties and on perusal of the material evidence available on record, the sole point that arises for my consideration is: “Whether the trial Court is justified in acquitting the accused for the offence punishable under Section 138 of NI Act?” 10. I have given my anxious consideration to the submissions made by the learned counsels for the respective parties, so also evidence and documents available on record. 11. It could be gathered from the records that issuance of cheque in question 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 though he had obtained loan from the Society in the year 2010 as per Loan Account No.203/203/M4, the said loan amount was repaid by the accused in the year 2011 itself. To substantiate the said aspect, the accused has produced Ex.D1 and D2, receipts for having paid a sum of Rs.2,29,414/-. As such, the said Loan Account No.203/203/M4 was closed in the year 2011 itself. The said fact was admitted by PW1 in the cross-examination. The complainant has not produced any ledger extract or any other - 7 - HC-KAR NC: 2025:KHC-D:8941 CRL.A No. 100109 of 2017 document to substantiate that the accused was owing a sum of Rs.3,00,000/- under Loan A/c No.214/M4. Though the complainant placed Ex.P6-statement of account, the same does not shows any details of repayment made by the accused as per Exs.D1 and D2. Further, PW.1 also admitted in his cross- examination that he is not aware about the date of advancement of loan and also date of issuance of cheque by the accused. Further, Ex.P6 reveals that as on 30.6.2011, a sum of Rs.2,55,947/- was due from the accused and Rs.30,954/- towards interest. However, there is no explanation forthcoming either in the complaint or in the evidence of PW1 as to how a sum of Rs.3,00,000/- was due from the accused and also issuance of cheque in question for a sum of Rs.3,00,000/-. In such circumstance, there arises a doubt regarding the transaction put-forth by the complainant/Bank and legally enforceable debt from the accused to the complainant/Bank. This aspect was elaborately discussed by the trial Court under impugned judgment. In that view of the matter, I am of the considered view that the trial Court has rightly acquitted the accused for the offence punishable under Section 138 of NI Act. Therefore, interference does not call for - 8 - HC-KAR NC: 2025:KHC-D:8941 CRL.A No. 100109 of 2017 in the impugned judgment. Accordingly, I answer the point raised above in the “affirmative” and proceed to pass the following: ORDER The Criminal Appeal No.100109/2017 stands dismissed. SD/- (RAJESH RAI K) JUDGE JTR CT:PA LIST NO.: 1 SL NO.: 1