Karnataka High Court

Ravikumar vs K J Puttaraju on 7 August, 2025

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                                                          NC: 2025:KHC:30647
                                                     CRL.A No. 729 of 2012


                   HC-KAR



                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 7TH DAY OF AUGUST, 2025

                                           BEFORE
                    THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
                             CRIMINAL APPEAL NO. 729 OF 2012 (A)
                   BETWEEN:

                   RAVIKUMAR
                   S/O MAHADEVAPPA
                   AGED ABOUT 40 YEARS
                   R/O KHB COLONY
                   NANJANGUD
                   DIST: MYSORE
                                                            ...APPELLANT

                   (VIDE ORDER DTD.09.04.2025 SMT. ARCHANA MURTHY,
                    AMICUS CURIAE)

                   AND:

                   K.J. PUTTARAJU
                   AGED ABOUT 47 YEARS
                   CONTRACTOR
Digitally signed   "VINAYAKA NILAYA"
by ANJALI M
                   OPP:CARMEL ENGLISH SCHOOL
Location: High
Court of           SRIKANTESHWARA NAGAR
Karnataka
                   OOTY ROAD, NANJANGUD
                   DIST: MYSORE


                                                              ...RESPONDENT
                   (BY SRI. SREENIVASAN, M.Y, ADVOCATE)
                        THIS CRIMINAL APPEAL IS FILED U/S.378(4) OF CR.P.C
                   PRAYING TO SET ASIDE THE JUDGEMENT AND ORDER PASSED
                   BY THE II ADDL. SESSIONS JUDGE, MYSORE IN CRL.A.
                   No.41/2011   DATED   29/3/2012    -  ACQUITTING    THE
                   RESPONDENT/ ACCUSED FOR OFFENCE P/U/S.138 OF N.I. ACT
                   AND RESTORE THE JUDGMENT AND ORDER PASSED BY ADDL.
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                                       NC: 2025:KHC:30647
                                    CRL.A No. 729 of 2012


HC-KAR



CITY CIVIL JUDGE & JMFC., NANJANGUD IN C.C. No.79/2008
DATED 1/3/2011.


     THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING:


CORAM:   HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

                     CAV JUDGMENT

(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)

This Criminal Appeal is filed under Section 378(4) of

the Code of Criminal Procedure by the complainant being

aggrieved by the judgment and order dated 29.03.2012

passed by the II Additional Sessions Judge, Mysuru in

Criminal Appeal No.41/2011, whereby, the appellate Court

reversed the judgment of conviction and sentence passed

by the learned Additional Civil Judge and JMFC, Nanjangud

in CC No.79/2008 dated 01.03.2011 and acquitted the

accused for the offence punishable under Section 138 of

Negotiable Instruments Act, 1881 (`NI' Act for short). The

present appeal calls into question the correctness and

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legality of the said order of acquittal passed by the learned

Sessions Judge.

2. The factual matrix that lead to the filing of this

appeal is, that the appellant herein who was the

complainant before the trial Court had lodged a private

complaint under Section 200 of Cr.PC alleging that, the

respondent, who was known to him for several years, had

borrowed a hand loan of Rs.6 lakhs from him on

20.07.2007. It was alleged that, the said loan was

extended without any security based on mutual trust and

acquaintance and that the accused had promised to repay

the said amount within short time. The complainant

contended that, when he demanded repayment of the said

amount, the respondent issued a cheque bearing

No.293853 dated 25.09.2007 drawn on Viajaya Bank,

Nanjangud Br. in favour of the complainant for the said

amount. The cheque when presented through the

complainant's banker was returned unpaid with an

endorsement `insufficient funds'.

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3. Thereafter, the complainant caused a statutory

legal notice on 2.10.2007 addressed to the accused,

calling upon him to make the payment of the cheque

amount within the stipulated period as mandated under

the provisions of the NI Act. The notice was dispatched by

both the RPAD and Under Certificate of Posting. The RPAD

was returned unclaimed and UCP was served. Inspite of

service, no reply was received and no payment was made,

the complainant therefore, filed the complainant under

Section 200 of Cr.PC for the offence punishable under

Section 138 of the NI Act before the learned JMFC Court,

Nanjangud initiating proceedings against the respondent.

4. During the trial, the complainant examined

himself and produced various documents including the

dishonored cheque and endorsement issued by the bank,

legal notice, postal acknowledgement and other supporting

material all of which were marked as Ex.P1 to P16. The

complainant contended that the issuance of the cheque by

the accused and its subsequent dishonour clearly made

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out the ingredients of the offence under Section 138 of the

NI Act. The complainant also submitted that, there existed

a legally recoverable debt and since the cheque was issued

in discharge of such debt and was returned unpaid, the

presumption under Section 139 of the Act was clearly

attracted.

5. On the other hand, the accused entered

appearance and contested the proceedings. He examined

himself as PW.1 and produced exhibits Ex.P1 to P16 and

closed evidence. DW.1 PUttaraju was examined as DW.1

and documents D1 to D9 were marked in support of his

defence. The defence taken by the accused is that, he was

a civil contractor during the period 2001-2002 and used to

purchase hardware and building materials from one

Shashidhar. In the course of those business transactions,

he has issued several signed blank cheques to Shashidhar

for the purpose of settling accounts. In those

circumstances, one of the cheques was misused by the

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complainant and that the cheque in question was never

issued in discharge of debt owed.

6. The accused denied having borrowed of any

money from the complainant and denied any financial

liability. No witness was examined on behalf of the

accused and Shashidhar who was the key link in the

defence theory was also not examined.

7. The learned trial Court, after considering the

evidence adduced by both the parties came to the

conclusion that the accused had admitted his signature on

the cheque and that the defence set up by him was not

substantiated by any convincing evidence. The learned

trial Court invoked presumption under Section 118 and

139 of the NI Act and held that the accused had failed to

rebut the presumption that the cheque was issued in

discharge of legally enforceable debt. Consequently, the

accused was convicted and sentenced to pay Rs.6.00 lakhs

as compensation.

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8. Aggrieved by the said conviction, the accused

preferred Crl.Appeal No.41/2011 before the II Additional

Sessions Judge, Mysuru. The appellate Court, after

re-appreciation of the evidence on record, allowed the

appeal and set aside the conviction. The appellate Court

held that, the complainant had not placed any reliable

material to establish the fact of alleged loan transaction. It

observed that, complainant who claimed to have lent large

amount of Rs. 6 lakhs but, failed to produce any material

indicating his financial capacity or the manner in which

such a transaction was entered into. There was no

documentary evidence to support the loan, no

acknowledgement of debt, no promissory note and no

corroborating witness.

9. The learned appellate Court also considered the

defence of the accused and held that the though the

accused had not produced a witness by name Shashidhar,

the burden on the accused under Section 139 is only to

raise a probable defence, not to prove the defence beyond

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reasonable doubt. The appellate Court observed that, the

complainant's case appeared improbable and that the

mere production of the cheque and the legal notice in the

absence of credible foundation of evidence to prove the

transaction was insufficient to sustain conviction under

Section 138 of Act. Appellate Court acquitted the accused

by setting aside the judgment of the trial Court.

10. The complainant aggrieved by the said

judgment of the first appellate Court, has preferred this

appeal.

11. The records of this appeal further reveal, that

after filing of the appeal either the counsel for the

appellant or appellant did not appear before the Court,

therefore, to keep the interest of the appellant, to

prosecute this appeal on behalf of the appellant

Smt.Archana Murthy, Advocate is appointed as amicus

curiae to assist the Court to decide this appeal.

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12. The learned amicus curiae for the appellant

argued that, the learned Sessions Judge erred in law in

disbelieving the evidence of the complainant and in

interfering with the well reasoned judgment of the trial

Court. It was contended that, once signature on the

cheque is admitted, the statutory presumption arises in

favour of the complainant and that the accused had not

produced sufficient evidence to rebut the said

presumption. It was also argued the defence taken by the

accused is mere afterthought and that the appellate Court

has adopted an approach which is contrary to the settled

principle of law held by the Apex Court.

13. Per contra, learned counsel for the respondent-

accused supported the finding of the first appellate Court

and submits that, the complainant had no financial

capacity to advance the loan as alleged in the complaint

and there was no loan transaction entered into both

himself and the complainant. The cheque so issued to the

hardware businessman is misused by the complainant.

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Thus, according to him, the acquittal order passed by the

appellate Court is legally justifiable and cannot be

interfered with.

14. I have carefully considered the submissions

made and meticulously gone through entire material on

record.

15. It is no doubt true that, under Section 139 of

the NI Act, once execution of the cheque and the signature

thereon is admitted, the presumption arises that, the

cheque was issued for the discharge in whole or in part, of

any debt or other liability. However, it is equally well

settled the presumption is rebuttable and that the burden

on the accused is not to prove his defence beyond

reasonable doubt but, to raise a probable defence which

creates in the mind of the Court about the existence of

legally enforceable debt. The standard of proof required to

rebut the presumption is that, of preponderance of

probabilities.

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16. In the instant case, the complainant has failed

to establish even the basic elements of transaction, no

receipt agreement or contemporaneous record has been

produced to evidence the loan of Rs.6 lakhs. The

complainant did not prove his financial capacity to lend

such an amount nor did he examine any witness who

would speak to the transaction. In his own evidence, he

has stated that when he lent loan to the accused, except

himself nobody was there and has not received any

cheque from the accused.

17. On scrupulous reading of the evidence spoken

to by PW. 1, he states that, for the purpose of security he

has not taken any pronote or cheque and he has paid Rs.6

lakhs to the accused without any interest. The learned first

appellate Court taking this evidence of PW.1 held that, in

view of evidence of complainant, the defence of appellant

appears to be probable as he was not acquainted with the

complainant, question of borrowing money never arose

and that his friend N.K.Shashidhar to whom he gave

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cheque for security purpose for repayment towards

purchase of cement and hardware from his shop, the

complainant might have got the same concocted. The

entire claim rests on the issuance of a cheque and the

legal notice without any supporting proof of the underlying

debt. When the issuance of chque may raise a

presumption under the law, such a presumption cannot

operate in a vacuum or substitute the absence of

foundational facts.

18. The appellate Court, in my opinion has correctly

evaluated the evidence and rightly held that complainant

failed to establish the existence of legally enforceable

liability. The defence, though not fully proved is sufficient

to cause a reasonable doubt the complainant's version. In

criminal jurisprudence when two views are possible, one

favourable to the accused must be adopted. The

presumption under Section 139 of the NI Act cannot be

elevated to the rule of compulsion to convict in every case

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where the cheque is admitted irrespective of the

surrounding circumstances.

19. This Court sitting in appeal, finds no perversity,

illegality or manifest error in the findings recorded by the

learned Sessions Judge. The acquittal recorded by the

appellate Court is based on proper appreciation of

evidence supported by cogent reasoning and does not call

for interference by this Court. It is the settled principle

that, the interference in an order of acquittal is permissible

only when the findings are unreasonable, perverse or

contrary to the evidence on record which is not the case

here. Accordingly, this Court finds no merit in the

present appeal. Resultantly, I pass following:

ORDER

(i) The Criminal Appeal is dismissed.

(ii) The Judgment and Order dated

29.03.2012 passed by the II Additional

Sessions Judge, Mysore, in Crl.Appeal

No.41/2011 acquitting the accused of