- 1 - HC-KAR NC: 2025:KHC:30002 CRL.A No. 2293 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE RAJESH RAI K CRIMINAL APPEAL NO. 2293 OF 2018 BETWEEN: SRI. T. RAMAMOORTHY, S/O. LATE VENKATESH, AGED ABOUT 50 YEARS, RESIDING AT NO.55/1, C/O. SATHYANARAYANA, SRI LAKSHMI NIALYA, LAKESIDE, NEHTRAVATHI LAYOUT, K.R.PURAM, BENGALURU - 560 036. …APPELLANT (BY SRI H. RAJANNA, ADVOCATE FOR SRI JAIRAJ G, ADVOCATE) AND: SRI. K.T. SHIVAPRAKASH S/O. K.M. THIMMAIAH, AGED ABOUT 44 YEARS, RESIDING AT NO.282, NEW BAZAAR STREET, K.R.PURAM, BENGALURU - 560 036. …RESPONDENT (BY SRI MOHAMMAD USMAN SHAIK, ADVOCATE) THIS CRL.A. IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 01.08.2018 PASSED BY THE LVII ADDL.C.M.M., BENGALURU IN C.C.NO.54078/2015-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30002 CRL.A No. 2293 of 2018 CORAM: HON'BLE MR. JUSTICE RAJESH RAI K ORAL JUDGMENT This appeal is directed against the judgment of acquittal passed in C.C.No.54078/2015 dated 01.08.2018 by the LVII Additional Chief Metropolitan Magistrate, Bengaluru1, whereby the Trial Court dismissed the complaint filed by the complainant-appellant and 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 by their ranks before the Trial Court. 3. The abridged facts of the case are as under: The complainant's wife and the wife of accused were friends and thereby the complainant acquainted with the accused. In the month of December, 2014 the accused approached the complainant for hand loan of Rs.5,00,000/- and the complainant advanced the said hand loan in the same 1 Hereinafter referred to as 'Trial Court' for short 2 Hereinafter referred to as 'NI Act' for short - 3 - HC-KAR NC: 2025:KHC:30002 CRL.A No. 2293 of 2018 month i.e., December, 2014. Though the accused promised to repay the said amount within one year, he failed to repay the same. On request, the accused issued two cheques bearing No.237643 dated 20.05.2015 and No.237644 dated 22.05.2015 for Rs.2,50,000/- each drawn on State Bank of Mysuru, Krishnarajapuram Branch as per Exs.P1 and P2. Subsequently, the complainant presented the cheques for encashment and the same returned with an endorsement ''Funds Insufficient" dated 30.05.2015. The said aspect was intimated by the complainant to the accused through legal notice on 18.06.2015. The said legal notice served to the accused on 20.06.2015. Despite service of notice, the accused neither replied the legal notice nor made the payment. Hence, the complainant filed the private complaint under Section 200 of Cr.P.C for the offence 138 NI Act, against the accused before the Trial Court. 4. To prove the case before the Trial Court, the complainant examined himself as PW.1 and also examined two more witnesses as PWs.2 and 3 and marked 9 documents as Exs.P1 to P9. The accused himself examined as DW.1 and - 4 - HC-KAR NC: 2025:KHC:30002 CRL.A No. 2293 of 2018 examined two more witnesses as DWs.2 and 3 and marked four documents as Exs.D1 to D4. 5. On assessment of oral and documentary evidence, the Trial Court acquitted the accused for the offence punishable under Section 138 of the NI Act. The said judgment is challenged in this appeal. 6. I have heard the learned counsel Sri H. Rajanna for learned counsel Sri Jairaj G., for the appellant and learned counsel Sri Mohammed Usman Sheikh for the respondent. 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 issuance of cheques in question and the signature of the accused on it are not seriously disputed by the accused. As such the initially presumption arising under Section 118 and 139 of NI Act, favours the complainant. The said initial presumption not rebutted by the accused by placing probable defence. He also contended that the complainant denied Ex.D1 - 5 - HC-KAR NC: 2025:KHC:30002 CRL.A No. 2293 of 2018 the alleged undertaking issued by the wife of the complainant. In such circumstance, the complainant has proved the guilt of the accused. Accordingly, he prays to allow the appeal by convicting the appeal. 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 wife of complainant herself executed Ex.D1-the undertaking that cheques in question were issued to her as a security to obtain hand loan from private Banks and Institutions to the accused. Later she failed to obtain such loan and presented the cheques in question through her husband for unlawful gain. This aspect of the matter was clearly admitted by the complainant in his cross-examination. In such circumstance, the trial Court has rightly appreciated the evidence on record and passed the judgment. He further contended that the complainant failed to prove the lending capacity to advance a huge sum of Rs.5,00,000/- except Exs.P1 and P2 absolutely no other - 6 - HC-KAR NC: 2025:KHC:30002 CRL.A No. 2293 of 2018 documents were placed by the complainant. In such circumstance, the trial Court has rightly appreciated the evidence on record and acquitted the accused for the offence punishable under Section 138 of NI Act. 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 arise 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 counsel for the respective parties, so also evidence and documents available on record. 11. As could be gathered from records, the cheques in question-Exs.P1 and P2 and the signature of accused on it are not seriously disputed by the accused. It is the specific defence of the accused that though cheques in question were issued to the wife of complainant in order to obtain loan to him from the - 7 - HC-KAR NC: 2025:KHC:30002 CRL.A No. 2293 of 2018 Banks and other financial institutions. To that effect, the undertaking was executed by the wife of the complainant as per Ex.D1. On perusal of Ex.D1, the same depicts that the wife of the complainant one Smt. M.S. Kalavathi has stated that in order to obtain loan from various financial institutions and private persons to the accused, she received two cheques i.e., Exs.P1 and P2 from the accused. The said aspect is also admitted by the complainant in the cross-examination. Admittedly no such documents were placed by the complainant to show that his wife had obtained loan from the Bank or other financial institutions in favour of the accused. Further, the complainant also failed to place any documents to show that he is capable to advance a huge sum of Rs.5,00,000/- to the accused. According to the complainant, he advance a loan amount in two installments i.e., Rs.2,50,000/- each. However, no documents were executed for the said amount except Exs.P1 and P2 cheques that too after lapse of 5 months from the date of advancing the loan amount. 12. No doubt, initial presumption arises under Sections 118 and 139 of NI Act to favour the complainant. However, it - 8 - HC-KAR NC: 2025:KHC:30002 CRL.A No. 2293 of 2018 is well settled position of law by this Court as well as by the Hon’ble Apex Court in catena of decisions that initial presumption can be rebutted by placing probable defence. In the instant case, on a careful perusal of the evidence available on record, the accused rebutted initial presumption by placing cogent documents and evidence on record that the cheques in question were not issued by the accused for legally enforceable debt. Per contra it is clear from the evidence that the same was issued as security for the transaction between the complainant's wife and the accused. 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 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.2293/2018 stands dismissed. SD/- (RAJESH RAI K) JUDGE HKV/ CR List No.: 1 Sl No.: 29