- 1 - HC-KAR NC: 2025:KHC:30003 CRL.A No. 2038 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. 2038 OF 2018 BETWEEN: SURESH S/O DYAVEGOWDA AGED ABOUT 44 YEARS, R/O CHAKENAHALLI VILLAGE, HALEKOTE HOBLI, HOLENARASIPURA TALUK HASSAN DISTRICT -573 211 …APPELLANT (BY SRI. YASHWANTH M GOWDA SRI. GIRISH B BALADARE, ADVOCATE) AND: K.R SOMASHEKAR S/O RANGEGOWDA, AGED ABOUT 36 YEARS, KSRTC DRIVER, R/O KALLENAHALLI VILLAGE, HALEKOTE HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT- 573 211 …RESPONDENT (RESPONDENT SERVED AND UNREPRESENTED) THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 15.10.2018, PASSED BY THE LEARNED CIVIL JUDGE AND JMFC AT HOLENARASIPURA IN C.C.NO.543/2014, ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF THE N.I ACT. Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30003 CRL.A No. 2038 of 2018 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAJESH RAI K ORAL JUDGMENT This appeal is directed against the judgment of acquittal passed in CC.No.543/2014 dated 15.10.2018 by the Civil Judge and JMFC, Holenarasipur1, 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 by their ranks before the Trial Court. 3. The abridged facts of the case are as under: The complainant and accused are known to each other and in the year 2013, the accused approached the complainant and sought financial assistance of Rs.3,00,000/- for clearance of hand loans and to meet the domestic necessities. Accordingly, the complainant advanced the said amount to the accused on 22.12.2013. For repayment of the said loan, the 1 Hereinafter referred as to 'Trial Court' for short 2 Hereinafter referred to as 'NI Act' for short - 3 - HC-KAR NC: 2025:KHC:30003 CRL.A No. 2038 of 2018 accused issued a cheque bearing No.296960 drawn on State Bank of Mysuru, Holenarasipura Branch for a sum of Rs.3,00,000/- dated 12.03.2014. The complainant presented the said cheque for encashment and the same was returned with an endorsement “Funds Insufficient” dated 17.03.2014. Thereafter, the complainant issued a legal notice to the accused on 25.03.2014 and the same was served to the accused. However, the accused neither replied to the legal notice nor made the payment to the complainant. Hence, the complainant filed the private complaint against the accused under Section 200 of Cr.P.C. before the Trial Court for the offence punishable under Section 138 of NI Act. 4. To prove the case before the Trial Court, the complainant examined himself as PW1 and also examined one more witness on his behalf as PW2 and marked 14 documents as Exs.P1 to P14. The accused examined himself as DW1 and also examined two witnesses as DWs.2 and 3 on his behalf and marked 13 documents as Exs.D1 to D13. 5. On assessment of oral and documentary evidence, the Trial Judge acquitted the accused for the offence punishable - 4 - HC-KAR NC: 2025:KHC:30003 CRL.A No. 2038 of 2018 under Section 138 of NI Act. The said judgment is challenged in this appeal by the complainant. 6. I have heard the learned counsel Sri Yashwanth M. Gowda for learned counsel Sri Girish B. Baladare for the complainant-appellant. Though the notice is served to accused- respondent, he remained unrepresented. 7. The primary contention of the learned counsel for the appellant is that the Trial Court has grossly erred while acquitting the accused, despite the complainant placing sufficient evidence and documents before the Trial Court to prove the offence punishable under Section 138 of NI Act. He contended that the cheque in question and the signature of the accused on it is not disputed by the accused. The defence taken by the accused that he had not issued the cheque on the alleged date to the complainant i.e., 22.12.2013 itself cannot be a ground to dismiss the complaint. He also contended that the initial presumption under Sections 118 and 139 of NI Act favours the complainant. The said initial presumption is not rebutted by the accused by placing probable defence. In such circumstance, the Trial Court has grossly erred in acquitting the - 5 - HC-KAR NC: 2025:KHC:30003 CRL.A No. 2038 of 2018 accused. Accordingly, he prays to allow the appeal and to convict the accused for the offence punishable under Section 138 of NI Act. 8. I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant and also perused the Trial Court Records. 9. It could be gathered from records, the issuance of cheque in question and signature of the accused on it is not seriously disputed by the accused. The defence of the accused is that the signed cheque of the accused i.e., Ex.P1 was misused by his father-in-law who handed over the same to the complainant through one Manjegowda and presented for unlawful gain. He submits that the several cheque bounce cases were filed against his father-in-law. To substantiate the said defence the accused has placed the documents as per Ex.D1 which reveals that the accused was being a driver of KSRTC Bus was on duty from 21.12.2013 to 23.12.2013 for a continues period of three days. As such, there was no possibility of advancing the loan amount by the complainant to the accused as claimed by him. On perusal of the complaint - 6 - HC-KAR NC: 2025:KHC:30003 CRL.A No. 2038 of 2018 averments and the evidence of the complainant-PW1, he has specifically stated that he had advanced the loan amount of Rs.3,00,000/- to the accused on 22.12.2013 by way of cash and on the same day the accused had issued cheque in question i.e., Ex.P1 to the complainant. 10. PW2 also deposed similarly that on 22.12.2013 the complainant has advanced the hand loan to the accused. However, on perusal of Ex.D1, the Depot Manager of Holenarsipura, depicts that the accused was on duty from 21.12.2013 till the night of 22.12.2013. Hence, there is no such possibility of complainant advancing the loan amount to the accused on 22.12.2013 as claimed by him. It is the contention of the complainant that the bus driven by the accused travels through Hassan - Sakleshapura as such there is a chance of receiving the amount by the accused while he was on duty. This version of the complainant doesn’t hold good. Hence, it cannot be said that the accused either received the amount from the complainant or issued the cheque in question i.e., Ex.P1 to the complainant while he was on duty or while he was driving the KSRTC bus as claimed by the complainant. - 7 - HC-KAR NC: 2025:KHC:30003 CRL.A No. 2038 of 2018 11. Nonetheless, on perusal of the cross-examination of the complainant, he specifically admitted that he is an agriculturalist and he had availed loan from the Bank. In such circumstances, the complainant also failed to prove the lending capacity for advancing a loan of Rs.3,00,000/- to the accused. The evidence of PW2 no way supports the case of the complainant, since the very date of advancing the loan amount itself is in dispute, the evidence of PW2 cannot be considered. The Trial Court has rightly appreciated the evidence of all the witnesses at length and passed the impugned judgment which does not call for any interference. 12. In that view of the matter, I am of the considered view that, the complainant has failed to make out the ground to interfere in the impugned judgment. Accordingly, the appeal lacks merits and same is dismissed. SD/- (RAJESH RAI K) JUDGE CR/List No.: 1 Sl No.: 22