- 1 - NC: 2025:KHC-D:5157 CRL.A No. 100279 of 2018 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.100279 OF 2018 BETWEEN: SMT. A. VENKAMMA W/O. A.L. KuMARA SWAMY, AGE: 61 YEARS, OCC: LAND LORD, R/O: NO.33, KVT COLONY, 3RD MAIN, VENKATESHWARA NAGAR, BALLARI, REPRESENTED BY HER GENERAL POWER OF ATTORNEY HOLDER/HUSBAND SRI A.L. KUMARA SWAMY, AGE: 66 YEARS, OCC: LAND LORD, R/O: NO.33, KVT COLONY, 3RD MAIN, VENAKTESHWARA NAGAR, BALLARI. …APPELLANT (BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE) AND: SRI. N. SUDHEENDRA S/O. N. GOPALA KRISHNA SETTY, AGE: 36 YEARS, OCC: BUSINESS, R/O: 1ST FLOOR, DOOR NO.6, VISHAL NAGAR, BEHIND M.G. AUTOMOBILES, BALLARI. …RESPONDENT (BY SRI. V. M. SHEELVANT, SRI. M.L.VANTI, SRI. VINAY S. KOUJALAGI and SRI. ANAND ASHTEKAR, ADVOCATES) THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE JUDGMENT DATED 03.07.2018 IN C.C.NO.1793/2016 PASSED THE LEARNED PRINCIPAL CIVIL JUDGE & JMFC COURT, BALLARI AND CONVICT THE RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENT ACT, BY ALLOWING THE ABOVE APPEAL AS PRAYED FOR WITH COST, 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:5157 CRL.A No. 100279 of 2018 ORAL ORDER This appeal is filed by the complainant praying to set aside the judgment of acquittal dated 03.07.2018 passed in C.C. No.1793/2016 by the learned Principal Civil Judge and JMFC, Ballari, whereunder 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: That the complainant has leased out her property situated opposite to Raghavendra Talkies, Ballari, to the accused on monthly rent of Rs.10,000/- and in that regard a Lease Deed has been executed on 01.01.2013 and the period of lease was for 11 months. The accused was regular in payment of rent initially but later defaulted and was due an amount of Rs.90,000/- as on August 2015. Upon repeated requests, the accused issued a cheque dated 01.09.2015 for Rs.90,000/- towards arrears of rent. - 3 - NC: 2025:KHC-D:5157 CRL.A No. 100279 of 2018 The power of attorney holder of the complainant presented the said cheque for encashment and it came to be dishonoured with shara ‘funds insufficient’. The complainant got issued a legal notice dated 08.10.2015 and the same has been served on the accused on 09.10.2015. The accused initially sent an interim reply calling upon the complainant to provide a copy of the Lease Deed and the same was furnished to him on 31.10.2015. Thereafter, the accused got issued a comprehensive reply on 07.11.2015. As the accused did not pay the cheque amount, the complainant filed a private complaint against the respondent/accused for an offence under Section 138 of NI Act. 3. The learned Magistrate has taken cognizance and registered C.C. No.1793/2016 against the respondent/accused for an offence under Section 138 of NI Act. The plea of the accused has been recorded and the complainant in order to prove her case, examined her General Power of Attorney Holder as PW.1 and got marked - 4 - NC: 2025:KHC-D:5157 CRL.A No. 100279 of 2018 Exs.P-1 to P-8. The statement of the accused has been recorded under Section 313 of the Code of Criminal Procedure. The accused did not lead any defense evidence. The learned Magistrate, after hearing the arguments on both sides, has passed the impugned judgment of acquittal which is challenged in this appeal by the complainant. 4. Heard the learned counsel for the appellant and the learned counsel for the respondent. 5. Learned counsel for the appellant would contend that the respondent/accused has admitted his signature on the cheque-Ex.P-2. As the respondent/accused has admitted signature on the cheque, a presumption has to be drawn under Section 139 of NI Act that cheque is issued for discharge of debt. The said presumption has not been rebutted by the respondent/accused. The respondent/accused except taking up a defense that the cheque is issued as a security at the time of Lease agreement and it has not been - 5 - NC: 2025:KHC-D:5157 CRL.A No. 100279 of 2018 returned after lease period, has not chosen to file any complaint or issue a notice in that regard. Without considering these aspects, the learned Magistrate has erred in passing the judgment of acquittal. With this, he prayed to allow the appeal. 6. Learned counsel for the respondent would contend that, Ex.P-8 is a copy of the Lease Deed and the lease period is from 01.01.2013 to 30.11.2013. After lease period, the respondent/accused has vacated the premises and he has paid rent up to 30.11.2013. Payment of rent up to 30.11.2013 has been admitted by PW.1 in his cross-examination. The respondent/accused has put forth his defense in his reply notice Ex.P-7. What was the amount due and from which period the said amount was due as arrears of rent and what happened to the security deposit of Rs.50,000/- has not been stated by the complainant. The cheque issued as a security at the time of lease agreement has been misused after two years. Considering all these aspects, the learned - 6 - NC: 2025:KHC-D:5157 CRL.A No. 100279 of 2018 Magistrate has rightly acquitted the respondent/accused of the offence under Section 138 of NI Act by the impugned judgment. With this, he prayed for dismissal of the appeal. 7. Having heard the learned counsel, this Court has perused the impugned judgment and the trial Court records. 8. Considering the grounds urged, the following point arises for consideration: Whether the trial Court erred in acquitting the respondent/accused of an offence under Section 138 of NI Act?. 9. My answer to the above point is in the negative for the following reasons. 10. It is the specific case of the appellant/complainant that, the cheque Ex.P-2 has been issued towards rent due as on August 2015. The respondent/accused has admitted that, he was a tenant - 7 - NC: 2025:KHC-D:5157 CRL.A No. 100279 of 2018 under the Lease Agreement dated 01.01.2013 for the period from 01.01.2013 to 30.11.2013. The respondent/accused contended that he has paid rent for the said period up to 30.11.2013. PW.1 in his cross- examination has admitted that the respondent/accused has paid rent up to 30.11.2013. PW.1 has also admitted that rent period has been completed on 30.11.2013 as per Ex.P-8. The respondent/accused has taken up a defense that the cheque-Ex.P-2 is given as a security at the time of execution of lease agreement Ex.P-8 dated 01.01.2013. Under Ex.P-8, the respondent/accused has paid security deposit of Rs.50,000/- to the appellant-complainant. As per Ex.P-8, rate of rent per month is Rs.10,000/- for initial six months and it is Rs.12,000/- thereafter. As per case of the complainant, the respondent/accused was due towards arrears of rent of Rs.90,000/-. What was the calculation of arrears of rent, has not been stated either in the legal notice Ex.P-3, or in the complaint or in the chief- examination affidavit of PW.1. Unless the said period of arrears is put forth, the complainant cannot contend that - 8 - NC: 2025:KHC-D:5157 CRL.A No. 100279 of 2018 an amount of Rs.90,000/- is due. How amount of arrears have been calculated to arrive at Rs.90,000/- has not been stated by the complainant. 11. Considering all these aspects, it is clear that the respondent/accused has rebutted the presumption drawn under Section 139 of NI Act. The appellant/complainant has not established that the respondent/accused was due to Rs.90,000/- towards arrears of rent as on the date of the cheque. Considering all these aspects, the learned Magistrate has rightly acquitted the respondent/accused by the impugned judgment. There are no grounds made out for interfering with the well reasoned judgment of acquittal passed by the trial Court. In the result, the appeal is dismissed. SD/- (SHIVASHANKAR AMARANNAVAR) JUDGE Kmv CT-ASC