1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL APPEAL NO.2272 OF 2024 BETWEEN SMT. JAYAMALA AGED ABOUT 49 YEARS, W/O LATE BORANAYAKA , R/AT HAMPAPURA VILLAGE, HOSA AGRAHARA HOBLI, K.R. NAGARA TALUK, MYSURU DISTRICT-571 105 ...APPELLANT (BY SRI. B.S NAGARAJ, ADVOCATE) AND SMT. JAYANTHI AGED ABOUT 49 YEARS, W/O SIDDEGOWDA, R/AT MATTIKERE VILLAGE, BHOOKANKERE HOBLI, BALENAHALLI POST, K.R. PETE TALUK, MANDYA DISTRICT-571 426 …RESPONDENT (BY SRI. GOPALA GOWDA .H.K, ADVOCATE) THIS CRL.A. IS FILED UUNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGEMENT DTD 05.11.2024 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC AT K.R.NAGARA, MYSURU IN CC.NO.284/2023. THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 22.08.2025 COMING ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI K, J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE RAJESH RAI K 2 CAV JUDGMENT (PER: HON'BLE MR JUSTICE RAJESH RAI K) The appellant/complainant has assailed the judgment passed in C.C.No.284/2023, dated 05.11.2024 by the Senior Civil Judge and JMFC, K.R.Nagara Taluk, Mysuru (hereinafter referred to as 'Trial Court') whereby the learned Trial Judge acquitted the accused/respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act'). 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 that, the complainant and the accused were friends and as such, they acquainted with each other. On 18.03.2023, the accused availed a hand loan of Rs.6,50,000/- from the complainant for her legal necessities and to repay the same within one month, she issued a post dated cheque bearing No.245281 dated 18.04.2023 drawn on the Mandya District Co-operative Central Bank Ltd., Mandya, Bukanakere Branch, K.R. Pet Taluk, Mandya District for a sum of Rs.6,50,000/-. After one month, when the complainant presented the said cheque for encashment through his banker, the same was returned with an endorsement dated 25.04.2023 as “Funds Insufficient” and the same was informed to the accused, for which the accused requested the complainant to present the said cheque after one week, so that 3 she could adjust the said loan amount. Accordingly, after one week, the complainant once again presented the said cheque for encashment through his banker, but the same was once again returned with an endorsement dated 03.05.2023 as "Funds Insufficient". The said aspect was brought to the knowledge of the accused by issuing a legal notice dated 17.05.2023. Despite service of notice to the accused on 20.05.2023, she neither replied to the said notice nor repaid the 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 N.I. Act before the Trial Court. 4. To prove the case, the complainant examined herself as PW.1 and marked 7 documents as Exs.P1 to P7. The accused neither examined any witness nor marked any documents on her behalf. 5. After assessment of oral and documentary evidence, the Trial Judge acquitted the accused for the offence punishable under Section 138 of the N.I. Act as stated supra. The said judgment is under challenge in this appeal by the complainant. 6. Heard the learned counsel Sri. B.S. Nagaraj., for the appellant/complainant, so also the learned counsel Sri. Gopala Gowda H.K., for the respondent/accused. 4 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 the N.I. Act, despite the complainant placing sufficient evidence on record to prove the case. According to the learned counsel, the mandatory requirements provided under Section 138 of the N.I. Act is complied with by the complainant. Further, the accused has not disputed the cheque in question and her signature on it. In such circumstances, the initial presumption favours the complainant which was not rebutted by the accused by placing cogent evidence. He also contended that the Trial Court has wrongly come to the conclusion that the complainant was not having sufficient amount to advance the loan amount of Rs.6,50,000/- though the complainant has stated in her evidence that she got the said amount by selling 150 sheep. 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. 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 contended that the complainant has totally failed to prove her lending capacity of a huge sum of Rs.6,50,000/- to the accused. 5 According to the complainant, she is a shepherd and advanced the loan amount to the accused by selling 150 sheep. However, the complainant has failed to state the date of selling the sheep and the exact amount received by selling the sheep. Further, she specifically admitted in her cross-examination that, she is a widow, living below poverty line and does not have any other source of income or assets other than having 200 sheep. He also contended that, according to the complainant at the time of advancing the loan amount to the accused, her mother was present but she failed to examine her mother. In such circumstance, the complainant has miserably failed to prove that, the accused owed a legally recoverable debt to the complainant. This aspect of the matter has rightly ben appreciated by the Trial Court. Hence, he prays to dismiss the appeal. 9. Having heard the learned counsel for the respective parties and on perusal of the 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 the N.I. Act? 10. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties, so also the evidence and documents available on record. 6 11. As could be gathered from records, the cheque in question-Ex.P1 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, the husband of accused and one Jagadish were engaged in the timber business and the husband of the accused handed over the signed cheque of the accused to said Jagadish as a security for the timber business between them. The said Jagadish is well acquainted with the complainant and for unlawful gain, handed over the Ex.P1 to the complainant and presented the same through her. This aspect of the matter has been partly admitted by the complainant in her cross examination stating that her husband and the husband of the accused were engaged in the timber business. However, she denied the suggestion that, they both were doing timber business along with Jagadish. The learned counsel for the accused suggested to the complainant in the cross examination that, the said Jagadish filed a case against the son of the accused in C.C.No.21/2024 and against the accused in C.C.No.40/2024 and also against the nephew of the accused in C.C.No.297/2023 for the offence punishable under Section 138 of the N.I. Act. 12. Nonetheless, as regards the lending capacity of the complainant is concerned, though she claimed that, she advanced the loan amount by selling 150 sheep, in her cross- examination 7 she stated that, she sold the sheep for construction of the house, however, she paid the same to the accused. As admitted by her, she is a BPL Card holder and living below poverty line without any other source of income or assets. Such being the position advancing a huge sum of Rs.6,50,000/- to the accused, that too without obtaining any documents to that effect appears to be doubtful. Moreover, according to her, though her mother was present at the time of advancing the loan amount, she failed to examine her to prove advancing of the loan amount. 13. The learned counsel for the appellant/complainant by placing reliance of the judgment of the Co-ordinate bench of this Court in Crl.Rev.Pet.No.1032/2019 vehemently contended that there is no necessity for the complainant to prove his/her financial capacity as the presumption drawn under the 139 of the N.I. Act remained unrebutted. 14. No doubt, initial presumption, which arises under Sections 118 and 139 of N.I. 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 rebutted the initial presumption by placing probable defence. It is equally settled position of law that the accused need not enter the 8 witness box, if he is able to prove his defence in the cross- examination of the complainant. In that view of the matter, I am of the 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. Hence, I answer the point raised above in the “affirmative” and proceed to pass the following: ORDER The Criminal Appeal No.2272/2024 stands dismissed. SD/- (RAJESH RAI K) JUDGE PKS/K List No.: 1 Sl No.: 5