Karnataka High Court
Vijayalxmi Batageri vs Abdul Jabbar on 23 September, 2025
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NC: 2025:KHC-K:5772
CRL.A No. 200260 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO.200260 OF 2023
(378(Cr.PC)/419(BNSS))
BETWEEN:
SMT. VIJAYALAXMI BADAGER
W/O GANGADHAR,
AGED ABOUT 53 YEARS,
OCC: HOUSEHOLD, R/O H.NO.E-14410,
14TH CROSS, TARFILE ROAD,
NEAR MALLIKARJUN KHARGE SCHOOL,
KALABURAGI-585 102.
...APPELLANT
(BY SRI SANTOSH KUMAR MARADI, ADVOCATE)
Digitally signed AND:
by
LUCYGRACE
ABDUL JABBAR S/O ABDUL KHADARSHAIKH,
Location: HIGH
COURT OF AGE: MAJOR, OCC: GOVERNMENT SERVANT,
KARNATAKA R/O RMS POST OFFICE, MTS,
STATION BAZAAR, KALABURAGI-585 102.
...RESPONDENT
(RESPONDENT - SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(4) OF CR.P.C. (OLD), SECTION 419 OF BNSS (NEW), PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT OF ACQUITTAL
DATED 29.05.2023 PASSED BY THE COURT OF PRL. CIVIL
JUDGE AND JMFC, KALABURAGI IN C.C.NO.12665/2022,
ACQUITTING THE RESPONDENT FOR THE OFFENCE
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NC: 2025:KHC-K:5772
CRL.A No. 200260 of 2023
HC-KAR
PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND TO
PUNISH THE ACCUSED/RESPONDENT FOR COMMITTING
OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT, BY
DIRECTING TO PAY DOUBLE THE CHEQUE AMOUNT WITH
COST.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE M G UMA) The appellant being the complainant in C.C.No.12665/2022 on the file of the learned Principal Civil Judge and JMFC, Kalaburagi is impugning the judgment dated 29.05.2023, dismissing the complaint and acquitting the respondent/accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'N.I. Act').
2. The case of the complainant in brief is that, the accused being a Government servant working in the Post Office, requested the complainant for hand loan of Rs.1,40,000/-. The accused assured to repay the same within 12 months. Accordingly, the complainant had lent -3- NC: 2025:KHC-K:5772 CRL.A No. 200260 of 2023 HC-KAR Rs.1,40,000/- to the accused. When the complainant insisted for repayment of the loan amount, the accused issued the cheque as per Ex.P1 on 16.02.2022 for Rs.1,40,000/-. When the cheque was presented for encashment, the same was dishonoured, as there was insufficient fund in the account of the accused. Legal notice was issued by the complainant to the accused, informing about dishonour of the cheque and calling upon him to repay the cheque amount. Inspite of service of notice, the accused has not repaid the cheque amount and thereby, committed the offence punishable under Section 138 of the N.I. Act. Accordingly, the complainant filed the private complaint in P.C.No.281/2022 and requested the Trial Court to take cognizance and initiate legal action against the accused.
3. The Trial Court took cognizance of the offence and registered C.C.No.12665/2022. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. The complainant examined herself as PW.1 and -4- NC: 2025:KHC-K:5772 CRL.A No. 200260 of 2023 HC-KAR got marked Exs.P1 to P6 in support of her contention. The accused denied all the incriminating materials available on record and examined himself as DW.1.
4. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that, the complainant has not proved the lending of the amount and existence of legally enforceable debt. Accordingly, passed the impugned judgment, acquitting the accused. Being aggrieved by the same, the complainant is before this Court.
5. Heard Sri Santosh Kumar Maradi, learned counsel for the appellant. Respondent though served with the notice has remained unrepresented. Perused the materials on record.
6. In view of the submissions made by the learned counsel for the appellant, the point that would arise for my consideration is:
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NC: 2025:KHC-K:5772 CRL.A No. 200260 of 2023 HC-KAR "Whether the impugned judgment of acquittal passed by the Trial Court suffers from infirmities and calls for interference by this Court?"
My answer to the above point is in the 'Affirmative' for the following:
REASONS
7. It is the contention of the complainant that, the accused being the Government servant working in the Post Office has availed a loan of Rs.1,40,000/-. Towards repayment of the same, he had issued the cheque-Ex.P1. When the cheque was presented for encashment, the same was dishonoured, as there was insufficient fund in the account of the accused. Even though legal notice was issued to the accused, the same was returned unserved as 'addressee not found'. However, accused has not repaid the amount and thereby, he has committed the offence punishable under Section 138 of the N.I. Act. -6-
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8. To prove her contention, the complainant examined herself as PW.1 and reiterated her contentions as taken in the complaint and got marked Exs.P1 to P6. Ex.P1 is the cheque dated 16.02.2022 for Rs.1,40,000/-, Ex.P2 is the return memo issued by the Canara Bank informing about dishonour of the cheque, Ex.P3 is the copy of the legal notice, Ex.P4 is the postal receipt and Ex.P5 is the postal envelope returned to the sender as 'addressee not found'. The complainant was cross- examined by the learned counsel for the accused. During cross-examination, the accused appears to have taken a defence of total denial. Issuance of cheque and the signature found on the cheque were denied. Availing of loan was also denied. Other than that, no specific defence was taken.
9. The accused stepped into the witness box and deposed as DW.1 stating that, he never met the complainant, nor borrowed any amount. He has not issued the cheque in question with his signature. Interestingly, -7- NC: 2025:KHC-K:5772 CRL.A No. 200260 of 2023 HC-KAR there is no reference to the cheque-Ex.P1 and no specific defence was taken about the same. During cross- examination, witness admitted that, he had not filed any complaint against the complainant alleging filing of the false complaint for the offence punishable under Section 138 of the N.I. Act.
10. It is pertinent to note that, even though the accused examined himself, except denial of the contentions taken by the complainant, there is no defence by the accused. It is contended that, Ex.P1 was not issued to the complainant by the accused. But, Ex.P1 is the cheque where the name of the accused is printed and he has signed the same. According to the complainant, signature found on Ex.P1 is that of the accused. There is no specific denial to this fact by the accused. Except saying that, he has not issued the cheque in favour of the complainant. The accused has not explained as to how the cheque came into the possession of the complainant, if at all he has not issued the same. On comparison, the -8- NC: 2025:KHC-K:5772 CRL.A No. 200260 of 2023 HC-KAR signature found on Ex.P1 matches with the signature of the accused as signed in the deposition, in the vakalathnama, and also in the plea recorded by the Trial Court. On perusal of Ex.P1, I do not find any reason to reject the claim of the complainant that, the cheque-Ex.P1 belongs to the accused and it bears his signature. Prima facie the complainant has shown that, the cheque belongs to the accused and signed by him.
11. It is pertinent to note that, the complainant filed an application under Section 91 of Cr.P.C. before the Trial Court, praying to summon the Bank official to produce required particulars about the cheque-Ex.P1, but the said application was rejected by the Trial Court by observing that, the burden is on the accused to rebut the legal prosecution and therefore, the complainant need not have to summon the Bank official, seeking such particulars. However, later, the Trial Court came to the conclusion that, the complainant has not proved her financial capacity and lending of the amount. -9-
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12. When the accused has not taken any specific defence nor probablized the bald defence that the cheque Ex.P-1 was never issued by him to the complainant, that too when the Trial Court rejects the application filed by the complainant under Section 91 of Cr.P.C., and further on perusal of Ex.P-1 it prima facie discloses that, the cheque belongs to the accused and it bears his signature, the initial burden on the complainant gets discharged. The presumption under Sections 118 and 139 of N.I. Act arises. The burden shifts on the accused to rebut the legal presumption. Mere denial of issuance of cheque will not rebut the presumption. The legal presumption under Section 139 of the N.I. Act includes existence of legally enforceable debt. The presumption under Section 118 of the N.I. Act raises presumption regarding the consideration of date and time of acceptance of the negotiable instrument. The accused has not rebutted the legal presumptions. Under such circumstances, he is liable for conviction.
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13. The legal notice Ex.P-3 is addressed to the accused which is returned as the addressee not found. The address of the accused mentioned in the legal notice- Ex.P-3 and the envelop Ex.P-5 is the same as mentioned in the private complaint. Under such circumstances, the notice is deemed to have been served on the accused. Under these circumstances, I am of the opinion that, the complainant is successful in proving the guilt of the accused beyond reasonable doubt and therefore, the accused is liable for conviction.
14. I have gone through the impugned judgment of acquittal passed by the Trial Court. It has proceeded to acquit the accused solely on the ground that the accused baldly denied issuance of the cheque Ex.P-1 and held that, the complainant has not proved the lending of the amount ignoring the settled position of law and the legal presumption under Sections 118 and 139 of the N.I. Act. Therefore, I am of the opinion that the impugned
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NC: 2025:KHC-K:5772 CRL.A No. 200260 of 2023 HC-KAR judgment of acquittal passed by the Trial Court is liable to be set aside.
15. Heard learned counsel for the appellant regarding sentence.
16. In view of the above, I answer the above point in the 'affirmative' and proceed to pass the following:
ORDER
(i) The Criminal Appeal is allowed.
(ii) The impugned judgment dated 29.05.2023 passed in C.C.No.12665/2022 by the Principal Civil Judge and JMFC at Kalaburagi is set aside.
(iii) The respondent - accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
(iv) The respondent - accused is sentenced to undergo simple imprisonment for a period
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NC: 2025:KHC-K:5772 CRL.A No. 200260 of 2023 HC-KAR of six months and to pay fine of Rs.2,00,000/-, in default to pay fine, to undergo further simple imprisonment for two months.
(v) On payment of fine amount, an amount of Rs.1,90,000/- to be paid to the complainant as compensation.
Registry is directed to send back the Trial Court records along with the copy of the judgment for information and needful action i.e., for issuance of the conviction warrant against the accused.
Sd/-
(M G UMA) JUDGE LG,SWK List No.: 1 Sl No.: 18 CT-PK