Karnataka High Court
Smt Jayamala vs Smt Jayanthi on 30 August, 2025
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
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.
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.
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.
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
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
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
