Karnataka High Court
Ayesha Banu D/O Shayamidapasha vs Anil Kumar S/O Amarappa Kamanur on 1 February, 2025
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NC: 2025:KHC-K:748
CRL.A No. 200229 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 200229 OF 2022
(378(Cr.PC)/419(BNSS)
BETWEEN:
AYESHA BANU D/O SHAYAMIDAPASHA
AGED ABOUT: 28 YEARS, OCCU: HOUSE HOLD,
R/O BADEBESA, SINDHANUR TOWN,
TQ: SINDHANUR, DIST: RAICHUR - 584128.
...APPELLANT
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADV.)
AND:
SRI ANIL KUMAR S/O AMARAPPA KAMANUR
AGED ABOUT: 32 YEARS, OCCU: MECHANIC,
R/O SHOP NAME: AMARA CAR CARE,
OPP: RANI VOINCE, GANGAVATHI ROAD,
Digitally signed TQ: SINDHANUR, DIST: RAICHUR - 584128.
by RAMESH
MATHAPATI ...RESPONDENT
Location: HIGH (BY MS. RANJITA ALAGAWADI, ADV.)
COURT OF
KARNATAKA
THIS CRIMINAL APPEAL IS FILED U/S. 378 (4) OF
CR.P.C, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
ORDER OF ACQUITTAL OF ACCUSED/RESPONDENT DATED
07.06.2022 PASSED IN C.C.NO.344/2018, BY THE II ADDL.
CIVIL JUDGE AND JMFC AT SINDHANUR FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND PUNISH
THE ACCUSED AS PER PROVISIONS OF SECTION 138 OF N.I.
ACT.C) TO PASS SUCH ORDER OR ORDERS THAT, THIS
HON'BLE COURT THINKS FIT TO PASS.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC-K:748
CRL.A No. 200229 of 2022
CORAM: HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K)
This appeal directed against the judgment dated
07.06.2022 passed in C.C.No.344/2018 by the II Additional
Civil Judge and JMFC, at Sindanur, whereby, the learned Judge
acquitted the respondent/accused for the offence punishable
under Section 138 of Negotiable Act, (for short 'NI Act').
2. The parties are referred to as per their ranking
before the trial Court.
3. The facts apposite for consideration as borne out
from the pleadings are as under:
The accused is the friend of father of the complainant, as
such he came into contact with the complainant, the accused
was in need of money to meet out his family and business
necessities and approached the complainant and requested her
to lend the hand loan of Rs.6,10,000/ and agreed to return the
same within two months. Accordingly the complainant lent the
hand loan of a sum of Rs.6,10,000/- to the accused on
04.06.2017. After lapse of two months, the accused failed to
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repay the hand loan, hence the complainant approached the
accused and requested him to repay the same, hence the
accused issued a cheque dated 04.08.2017 bearing No.239016
of Corporation Bank branch Sindhanur for an amount of
Rs.6,10,000/- towards repayment of loan borrowed by him.
Accordingly, the complainant presented the cheque for
encashment through her banker at State bank of Hyderabad
(SBI) Branch at Sindhanur on 31.10.2017 and the same was
returned unpaid to the complainant on 02.11.2017 with an
endorsement "FUNDS INSUFFICIENT". Thereafter, on
10.11.2017, the complainant got issued the demand notice.
The legal notice was duly served upon accused on 14.11.2017.
In spite of service of legal notice, the accused neither replied to
the same nor complied with the demand made in the notice.
Hence, the complainant filed the complaint before the learned
Magistrate under Section 200 of Cr.P.C for the offence
punishable under Section 138 of N.I. Act.
4. To prove the case of the complainant before the
trial Court, she himself examined as P.W.1 and got marked 5
documents. However, accused himself examined as DW.1 and
got marked 6 documents.
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5. After assessment of oral and documentary
evidence, the trial Court acquitted the accused for the offence
punishable under Section 138 of the NI Act.
6. I have heard the learned counsel for the appellant
so also the learned counsel for respondent and carefully
perused the entire evidence on record.
7. On perusal of oral and documentary evidence, the
issuance of cheque in question i.e., Ex.P1 and the signature of
the accused on it is not disputed by the accused. However, the
lending of hand loan by the complainant on 04.06.2017, the
lending/financial capacity of the complainant so also the reason
behind issuance of the cheque is seriously contested by the
accused. According to the complainant, the accused had
approached him and has borrowed a hand loan of
Rs.6,10,000/- from her on 04.06.2017. However, in her cross-
examination, she has admitted that, it was the wedding day of
the accused. Further, to prove the said aspect, the accused
confronted Ex.D6-the wedding invitation which was admitted by
the complainant. Further, she also admitted in her cross-
examination that on the date of wedding of the accused and on
the following day, the accused and his brothers received the
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hand loan from her. This portion of the evidence of PW.1,
clearly goes contradictory to her case projected in the legal
notice, complaint and in her evidence that the accused himself
received Rs.6,10,000/- on 04.06.2017. Further, according to
the complaint, she has lent hand loan to the accused without
any document and the cheque in question was issued by the
accused after lapse of 2 months i.e., on 04.08.2017. Hence, the
lending of hand loan by the complainant to the accused on
04.06.2017 itself creates a doubt in her version.
8. Further, in respect of lending/financial capacity of
the complainant to the tune of Rs.6,10,000/- is concerned, the
complainant has categorically admitted that she has no source
of income and she is a student studying DED and she was at
Saudi Arabia for a period of two years before the transaction.
She also admitted that she is having an account at IDBI Bank,
Sindhanur Branch and she did not had bank balance of Rs.4 to
5 lakhs at any point of time before the transaction. Further, her
father do not earn much income either from the business or
from agricultural income and all earnings of her father will not
be sufficient to manage the home affairs and education of
children. In such circumstance, the complainant has also failed
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to prove her financial capacity to lend a huge hand loan of
Rs.6,10,000/- to the accused. It is also relevant to observe
that, PW.1 has stated, she got the amount of Rs.6,10,000/- by
selling the landed property in the year 2016, however, no such
documents placed by her before the Court to prove the said
contention. Further, according to her, the accused has executed
a promissory note for having received the loan amount.
However, the said document has not produced in her evidence.
9. Per contra, it is the specific case of accused that the
complainant has filed a false case against him for the reason
that herself and accused are being passionate each other and
since he failed to marry her, she demanded money with
menaces by retaining their intimate photographs, thereby
blackmailing, forcibly received the cheque through one of his
relative. To substantiate the said aspect, the accused produced
the photographs-Exs.D1 to D4, the same depicts the accused
and complainant was in close proximity with each other. In
such circumstance, the accused has explained under what
circumstance the cheque in question-Ex.P1 has issued to the
complainant. No doubt under the provisions of Sections 118
and 139 of N.I. Act the initial presumption favours the holder of
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the cheque. However, it is settled position of law by the Hon'ble
Apex Court that the said presumption can be rebutted by the
accused by placing probable defence available under law.
10. In the case on hand, on perusal of examination of
PW.1, she failed to prove her financial/lending capacity of
Rs.6,10,000/- as hand loan to the accused so also to prove the
lending of hand loan to the accused on 04.06.2017. Per contra,
the accused successfully established the circumstance of
issuance of cheque in question. Under this circumstance, this
Court is of the view that the accused has rebutted the initial
presumption by placing believable evidence.
11. In that view of the matter, the judgment passed by
the trial Court is sound and proper, does not call for any
interference. Accordingly, the appeal is dismissed being
devoid of merits.
Sd/-
(RAJESH RAI K)
JUDGE
HKV
CT: PS
