- 1 - HC-KAR NC: 2025:KHC-D:8954 CRL.A No. 100138 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.100138 OF 2017 (A) BETWEEN: MANJUNATH SADANAND BIDIKAR AGE: 35 YEARS, OCC. GOLDSMITH, R/O. MANGALWAD VILLAGE, TAL. HALIYAL, U.K. DISTRICT. …APPELLANT (BY SRI. A.P. HEGDE JANMANE AND SRI. VIJAY M. MALALI, ADVOCATES) AND: SMT. KUMARI D/O. YESAYYA MADAR, AGE: 28 YEARS, OCC. BUSINESS, R/O. MUNICIPAL QUARTERS, NEAR SYNDICATE BANK, HALIYAL, U.K.. DISTRICT. …RESPONDENT (BY SRI. N.M. PATIL, ADVOCATE FOR SRI. J.S. SHETTY, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND TO SET ASIDE THE JUDGMENT DATED 15.02.2017 PASSED IN C.C.NO. 235 OF 2012 BY CIVIL JUDGE AND JMFC COURT AT HALIYAL AND TO CONVICT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT. THIS APPEAL, COMING ON FOR FINAL 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 10:20:09 +0530 - 2 - HC-KAR NC: 2025:KHC-D:8954 CRL.A No. 100138 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE RAJESH RAI K) In this appeal, the appellant/complainant has assailed the judgment passed in CC No.235/2012 dated 15.02.2017 by the Civil Judge and JMFC, Haliyal1, 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 and the accused are known to each other. In the month of September, 2011, the accused borrowed a hand loan of Rs.1,00,000/- from the complainant for her urgent financial needs by assuring that she would repay the same within 2-3 months. However, she failed to repay the amount and finally, she issued a cheque bearing No.350929 dated 28.11.2011 drawn on Syndicate Bank, Haliyal Branch for Rs.1,00,000/-. The complainant presented the said cheque for encashment through his banker, but the same was returned with an 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:8954 CRL.A No. 100138 of 2017 endorsement “Insufficient Funds”. The said aspect was brought to the knowledge of the accused by issuing a legal notice dated 21.12.2012. However, the accused did not repay the said loan amount. As such, the complainant 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 examined himself as PW1 and marked 9 documents as Ex.P1 to P9. The accused examined herself as DW2 and one more witness as DW1 and marked 2 documents as Ex.D1 & D2. 5. 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 under challenge in this appeal by the complainant. 6. Heard the learned counsel Sri.Vijay M Malali for the appellant/complainant, so also the learned counsel Sri. N.M.Patil for Sri. J.S. Shetty, the learned counsel for the respondent/accused. - 4 - HC-KAR NC: 2025:KHC-D:8954 CRL.A No. 100138 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. He contended that the accused has taken improbable defence that she lost the cheque in question and the same was misused by the complainant for unlawful gain. However, she failed to lodge any complaint to that effect. Though the accused disputed her signature on Ex.P1-cheque in question by producing Exs.D1 and D2 i.e., application for opening of savings account and Form No.60, however, on perusal of her signature on Ex.P1-cheque and the affidavit, the same tallies each other. As such, it is clear that she only issued the cheque Ex.P1. Moreover, she failed to examine any handwriting expert to prove that signature on Ex.P1 not belongs to her. These aspects of the matter are not properly appreciated by the trial Court, which resulted in acquittal of the accused. Thus, he prays to allow the appeal by setting aside the impugned judgment of acquittal and to convict the accused for the offence under Section 138 of NI Act. - 5 - HC-KAR NC: 2025:KHC-D:8954 CRL.A No. 100138 of 2017 8. Per contra, learned counsel for the respondent/accused contended that the trial Court after meticulously examining the entire evidence on record passed a well-reasoned judgment, which does not warrant interference at the hands of this Court. He further contended that the Bank Manager-DW1 has categorically stated that the signature of the accused in the application form for opening the bank account and the Ex.P1-cheque totally differ each other. Further in the cross-examination of PW1-complainant, he admitted that the cheque in question was filled by somebody else. However, in the chief-examination, PW1 stated that the accused herself filled and handed over the cheque in question to the complainant. It is further contended that the complainant also failed to state the date of lending loan to the accused. According to the learned counsel, the accused purchased gold ornaments from the complainant’s shop in the year 2009 and paid a sum of Rs.2000/- out of Rs.9,690/- and there was a balance of Rs.7,690/-. As such, the complainant received blank cheque of the accused and later he filled and presented the same for encashment for unlawful gain. To substantiate the said aspect, he emphasizes Ex.D1 the receipt issued by PW1- - 6 - HC-KAR NC: 2025:KHC-D:8954 CRL.A No. 100138 of 2017 complainant. Hence, according to him, all these aspects were properly appreciated by the trial Court while acquitting the accused for the offence under Section 138 of NI Act. Hence, interference in the impugned judgment does not warrant at the hands of this Court. Accordingly, he prays to dismiss the appeal. 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 records, the accused disputed her signature on Ex.P1-cheque. According to her, her full name is ‘Kumari Rajashekar Kolapilli’. Even while opening the bank account at Syndicate Bank, she mentioned her name as ‘Kumari Rajashekar Kolapilli’ and she signed in the bank - 7 - HC-KAR NC: 2025:KHC-D:8954 CRL.A No. 100138 of 2017 account opening form as “G Kumari”. However, on perusal of Ex.P1-cheque in question, signature of the accused reveals only as “Kumari”. Though the learned counsel for the complainant has argued that the accused was in the habit of differing her signature, but to substantiate the said aspect, the complainant has not produced any document, except relying on the affidavit of the accused. Further, the complainant in his chief- examination has categorically stated that on 28.11.2011, the complainant filled the cheque by mentioning the amount, date and name of the complainant in front of him. But in his cross- examination, he stated that the contents of the cheque are filled by friend of the accused. Further, on careful scrutiny of Ex.D1-the receipt issued by the complainant in the name of Jewelery shop, the same depicts that in the year 2009, the accused has purchased gold ornaments. Though part payment was made, there was a balance amount of Rs.7,690/-. According to the accused, for the said balance amount, the complainant received the cheque in question as security. Subsequently, he presented the same for encashment for unlawful gain. On careful perusal of the evidence of the complainant, he failed to state the date of advancement of loan - 8 - HC-KAR NC: 2025:KHC-D:8954 CRL.A No. 100138 of 2017 to the accused. He also admitted in his cross-examination that he filed several private complaints against different persons for the offence punishable under Section 138 of NI Act. In such circumstance, there arises a doubt in the transaction between the accused and the complainant and the complainant lending a loan of Rs.1,00,000/- to the accused without executing any documents. No doubt, initial presumption arises under Sections 118 and 139 of NI Act favours the complainant. However, it is well settled position of law by this Court and the Hon’ble Apex Court in catena of decisions that initial presumption can be rebutted by placing probable defence. In the instant case, on careful perusal of the evidence available on record, the accused has relied on Ex.D1 and his defence was probable one. Nevertheless, the very signature of the accused on Ex.P1 is disputed. In such circumstance, in my considered view, the trial Court has rightly dealt with the matter in detail and passed a well-reasoned judgment, which does not warrant interference at the hands of this Court. In that view of the matter, I answer the point raised above in the “affirmative” and proceed to pass the following: - 9 - HC-KAR NC: 2025:KHC-D:8954 CRL.A No. 100138 of 2017 ORDER The Criminal Appeal No.100138/2017 stands dismissed. SD/- (RAJESH RAI K) JUDGE JTR CT:PA LIST NO.: 1 SL NO.: 4