- 1 - NC: 2025:KHC-D:4687 CRL.A No. 100279 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO.100279 OF 2016 BETWEEN: SRI MANJUNATH S/O. PANDURANG REVANKAR, AGE: 26 YEARS, OCC: GOLDSMITH, R/O: HABBUWADA, KARWAR. …APPELLANT (BY SMT. PRIYANKA KADAMPUR, ADVOCATE APPEARED FOR SRI B.C. JNANAYYA SWAMI AND SRI B. ANWAR BASHA, ADVOCATES) AND: SRI MANJUNATH S/O. VENKATRAMAN KURDEKAR, AGE: 38 YEARS, OCC: GOLDSMITH, R/O: H.NO.2274 ASHIRWAD, NANDESHWAR ROAD MUNDGOD, TQ: KARWAR. …RESPONDENT (BY SRI V. S. KALASURMATH, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C., PRAYING TO CALL FOR RECORDS IN CRIMINAL CASE NO.331 OF 2006 ON THE FILE OF THE LEARNED J.M.F.C. 2ND COURT, KARWAR, PERUSE THE SAME, ALLOW THIS APPEAL AND SET ASIDE THE ORDER OF ACQUITTAL DATED 03.09.2016 AND HOLD THE RESPONDENT/ACCUSED GUILTY OF THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT IN THE INTEREST OF JUSTICE AND EQUITY. THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - NC: 2025:KHC-D:4687 CRL.A No. 100279 of 2016 CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT This appeal is filed by the appellant/complainant challenging the judgement of acquittal dated 03.09.2016 passed in C.C.No.331/2006 by J.M.F.C., 2nd Court, Karwar, whereunder, respondent/accused has been acquitted for offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘138 of N.I.’, for short). 2. The case of the appellant/complainant in brief is as under: The complainant and accused are Goldsmiths by profession and the accused used to purchase gold and silver ornaments from the complainant on cash and credit basis. There was an outstanding balance of Rs.56,000/- from the accused to the complainant. When the complainant has demanded the said amount, the accused has issued a post dated cheque bearing No.721481 of Syndicate Bank, Mundgod for Rs.56,000/- dated 26.10.2005. The respondent/accused requested to present the said cheque - 3 - NC: 2025:KHC-D:4687 CRL.A No. 100279 of 2016 after two months for encashment. As per the request of the accused, the complainant presented the said cheque and it came to be dishonoured with an endorsement “Funds insufficient” by memo dated 16.02.2006. Thereafter, complainant has issued legal notice dated 20.02.2006 to the accused calling upon him to pay the cheque amount within 15 days. The accused has refused to receive the said notice sent by registered post and postal authorities have given return intimation on 03.03.2006. Inspite of that, the accused did not pay the cheque amount. Therefore, the complainant has filed private complaint against the respondent/accused for offence under Section 138 of N.I. Act. 3. The learned Magistrate has taken cognizance and registered case in C.C.331/2006 against the respondent/accused for offence under Section 138 of N.I. Act. The plea of the accused has been recorded. The complainant in order to prove his case has examined himself as PW-1 and got marked documents as Exs.P-1 to P-6. The respondent-accused has examined himself as DW-1 and no documents were marked on defence side. The statement of - 4 - NC: 2025:KHC-D:4687 CRL.A No. 100279 of 2016 the accused has been recorded under Section 313 Cr.P.C. Learned Magistrate after hearing arguments on both sides, has passed impugned judgement of acquittal. The said judgement of acquittal has been challenged by the complainant in this appeal. 4. Heard learned counsel for the appellant and learned counsel for the respondent. 5. Learned counsel for the appellant would contend that the respondent/accused has admitted his signature on cheque-Ex.P-1 and therefore, presumption under Section 139 of N.I. Act has to be drawn that the cheque is issued for discharge of debt/liability. The said presumption is not rebutted. The complainant has not been given sufficient opportunity to cross examine DW-1. The appellant/complainant due to his ill-health, did not appear when the case was posted for cross-examination of DW-1. With this, she prayed to allow the appeal and convict the respondent-accused for offence under Section 138 of N.I. Act. - 5 - NC: 2025:KHC-D:4687 CRL.A No. 100279 of 2016 6. Learned counsel for respondent would contend that the presumption drawn under Section 139 of N.I. Act has been rebutted by leading a defence evidence. DW-1 has not been cross examined by the complainant inspite of giving sufficient opportunity. The evidence of PW-1 and cross- examination of PW-1 establishes the defence of the respondent/accused. The appellant/complainant has not produced any document to show the liability of the respondent/accused to pay the cheque amount. Considering the same, the learned Magistrate has rightly acquitted the respondent-accused for offence under Section 138 of N.I. Act. With this, he prayed for dismissal of the appeal. 7. Having heard learned counsels, the Court has perused the impugned judgement and trial Court records. Considering the grounds urged, the following point arises for consideration: i. Whether the trial Court has erred in acquitting the respondent/accused for offence under Section 138 of N.I. Act? - 6 - NC: 2025:KHC-D:4687 CRL.A No. 100279 of 2016 8. My answer to the above point is in the ‘negative’ for the following reasons: 9. It is the specific case of the appellant/complainant that there was outstanding balance of Rs.56,000/- which was to be paid by accused to the complainant with regard to credit purchase of gold and silver ornaments by the accused from the complainant. In order to pay the said outstanding amount, the respondent/accused has issued cheque-Ex.P-1 for Rs.56,000/-. The respondent/accused has admitted his signature on cheque- Ex.P-1. As respondent/accused has admitted the signature on the cheque-Ex.P-1, the presumption has to be drawn that the cheque is issued for discharge of liability. The said presumption is a rebuttable presumption. The standard of proof for rebutting the said presumption is preponderance of probability. 10. It is the defence of the respondent/accused that appellant is not a Goldsmith and his father is a Goldsmith and there was a transaction between father of the appellant and the respondent/accused and for that he had issued one - 7 - NC: 2025:KHC-D:4687 CRL.A No. 100279 of 2016 cheque for Rs.30,000/- and another blank cheque. The father of the accused has filed a cheque bounce case against the respondent for Rs.30,000/- and another signed cheque has been misused by the appellant. PW-1 in his cross- examination has denied the suggestions that there was no transaction between the respondent and the complainant. PW-1 has also denied that he has misused cheque given by the accused to his father. In order to establish the defence, the accused examined himself as DW-1. DW-1 in his evidence has stated that there was no any transaction between him and the complainant with regard to any gold. 11. He further stated that there was a transaction between accused and the father of complainant with regard to making of gold ornaments and he had issued two cheques, one for Rs.30,000/- and another blank cheque. He has further stated that by using one cheque, father has filed complaint against respondent/accused for cheque for Rs.30,000/- and he has paid the said cheque amount to the father of the accused. - 8 - NC: 2025:KHC-D:4687 CRL.A No. 100279 of 2016 12. He has further stated that another cheque has been misused by the complainant. DW-1 has not been cross examined by the appellant/complainant. DW-1 has been examined on 04.06.2016 and case has been posted for cross-examination of DW-1 on 16.06.2016 and 23.06.2016. On 23.06.2016, the cross examination of PW-1 has been taken as nil. Inspite of granting opportunity on two dates, the counsel for the complainant has not cross examined DW- 1. Thereafter, the case has been posted for arguments on eight dates. In those eight dates, the complainant/complainant’s counsel have not made any application seeking recall of DW-1 for cross-examination. Therefore, the appellant cannot now contend that sufficient opportunity is not given to the complainant for cross- examination of DW-1. 13. The evidence of DW-1 itself establishes the defence of the respondent/accused. The respondent/accused has rebutted the presumption drawn under Section 139 of the N.I. Act. In order to establish the transaction and the liability, the appellant/complainant has not examined his - 9 - NC: 2025:KHC-D:4687 CRL.A No. 100279 of 2016 father who is stated to be present during the transaction between complainant and the accused. No iota of evidence has been placed on record in order to establish the liability of the respondent/accused to pay the cheque amount. Considering all these aspects, the learned Magistrate has rightly acquitted respondent/accused for offence under Section 138 of N.I. Act. There are no grounds made out for setting aside well reasoned judgement of acquittal passed by the trial Court. 14. In the result, the appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE RKM CT-ASC List No.: 1 Sl No.: 50