Karnataka High Court
Sri Nooruddeen vs Sri Hafizulla on 10 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 1735 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 1735 OF 2018
BETWEEN:
SRI. NOORUDDEEN
S/O LATE P.C.LATEEF
AGED ABOUT 41 YEARS
R/AT NO.3, 93/2, 1ST MAIN
15TH CROSS, K.T.J.NAGARA
DAVANAGERE-577 002
...APPELLANT
(BY SMT. THANIMA BEKAL, ADVOCATE FOR
SRI. HAREESH BHANDARY T, ADVOCATE)
AND:
SRI. HAFIZULLA
S/O SHEK SAHEB SAB
AGED ABOUT 47 YEARS
R/AT DOOR NO.1172/1
Digitally signed by
HEMAVATHY 2ND MAIN, 5TH CROSS
GANGABYRAPPA K.T.J.NAGARA
Location: HIGH
COURT OF DAVANAGERE-577 002
KARNATAKA ...RESPONDENT
(BY SRI. U. PANDURANGA NAYAK, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
04.08.2018 PASSED BY THE JUDICIAL MAGISTRATE FIRST
CLASS, II COURT, DAVANAGERE IN C.C.NO.2456/2015,
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CRL.A No. 1735 of 2018
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by the complainant challenging
the judgment of acquittal dated 04.08.2018 passed in
C.C.No.2456/2015 by the Judicial Magistrate First Class, II
Court, Davanagere, whereunder the respondent - accused
has been acquitted for offence punishable under Section
138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as 'N.I. Act' for brevity).
2. The case of the appellant - complainant in brief,
is as under:
The appellant -complainant and respondent -
accused are known to each other from several years. The
respondent -accused had approached the appellant -
complainant for financial assistance for marriage of his
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sister and for his urgent family necessities on 12.09.2012.
The appellant -complainant has advanced hand loan of
Rs.1,70,000/- to the respondent -accused on 12.09.2012
and the respondent -accused has agreed to repay the said
amount with interest at the rate of 2% within 06 months.
The respondent -accused did not repay the amount
borrowed. On 25.06.2013, the respondent -accused has
issued cheque bearing No.595469 drawn on Karur Vysya
Bank Ltd., Davanagere for Rs.1,70,000/- for repayment of
the said hand loan. The appellant -complainant presented
the said cheque for encashment and the said cheque was
retuned with an endorsement stating "Funds Insufficient"
in the account of the respondent -accused. The appellant -
complainant got issued legal notice on 03.07.2013.
Inspite of service of legal notice the respondent -accused
did not pay the cheque amount. Therefore, the
complainant has filed a private complaint against the
respondent - accused for offence punishable under Section
138 of the NI Act.
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3. Learned Magistrate has taken cognizance
against the respondent -accused and registered case in
C.C.No.2456/2015 for offence punishable under Section
138 of the N.I Act. The plea of respondent - accused has
been recorded. The complainant in order to prove his case
has examined himself as P.W.1 and got marked
documents as Ex.P1 to P5. The appellant -complainant
has also examined one witness as P.W.2. The statement of
respondent -accused came to be recorded under Section
313 of Cr.P.C. Learned Magistrate after hearing arguments
on both sides has formulated points for consideration and
passed impugned judgment of acquittal. The said
judgment of acquittal has been challenged by the
complainant in this appeal.
4. Heard learned counsel for the appellant and
learned counsel for the respondent.
5. Learned counsel for the appellant would
contend that the respondent -accused has admitted his
signature on Ex.P1 -cheque and therefore, the
presumption under Section 139 of the N.I Act has to be
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drawn. The said presumption has not been rebutted by
the respondent -accused. The respondent -accused has
not issued any reply to the legal notice got issued by the
appellant -complainant and not filed any police complaint
against the appellant -complainant for misusing of his
cheque. On that point she placed reliance on the decision
of the Co-Ordinate Bench of this Court in the case of A.M
Harish Gowda @ A M Harisha Vs Sri Chaluvaraju H
S 1. She further submits that the presumption drawn
under Section 139 of N.I Act is that the holder of the
cheque received for the discharging of debt or any liability
and if contrary is not proved, the accused has to be
convicted for offence punishable under Section 138 of the
N.I Act and on that point she placed reliance on the
decision of the Hon'ble Apex Court in the case of P.
Rasiya Vs Abdul Nazer2. She further submits that there
is no rule to calculate interest even after it is agreed by
parties. On that point she placed reliance on the decision
In Crl.P.No.619 of 2021 dated 04.06.2024
Reported in AIR OnLine 2022 SC 1373
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of the Co-Ordinate Bench of this Court in the case of
Gajanan Kallappa Kadolkar Vs Appasaheb
Siddamallappa Kaveri3. Without considering all these
aspects, learned Magistrate has harped upon regarding no
calculation of interest and hereby acquitting the
respondent -accused for offence punishable under Section
138 of the N.I Act. With these, she prayed to allow the
appeal and convict the respondent -accused for offence
punishable under Section 138 of the N.I Act.
6. Learned counsel for the respondent -accused
would contend that P.W.1 in his cross examination has
admitted that accused has borrowed money form him in
the year 2011 and he has repaid the same. The defence
of the respondent -accused that the cheque has been
issued as security when he borrowed money form the
appellant -complainant in the year 2011 has been
established as there is alteration in the contents of the
cheque with regard to date and amount in figures.
Considering the said aspect, the presumption drawn under
Reported in 2022 LiveLaw (KAR) 483
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Section 139 of N.I Act is rebutted. The appellant -
complainant has not established the said lending. P.W.2 -
Kasim Sab is a close friend of the P.W.1 and his evidence
cannot be relied upon to establish that there is alleged
lending. The appellant -complainant has not produced
any materials to show his capacity to lend Rs.1,70,000/-.
Considering all these aspects, the acquittal of the
respondent -accused is proper and correct. With these,
he prays for dismissal of the appeal.
7. Having heard learned counsels, the Court has
perused the impugned judgment and trial Court records.
Considering the grounds urged, the point arises for my
consideration is
"Whether learned Magistrate has erred in
passing the judgment of acquittal of
respondent -accused for offence punishable
under Section 138 of N.I. Act."?
My answer to the above point is in the negative for
the following reasons.
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It is specific case of the appellant -complainant that
the respondent -accused has sought hand loan on
12.09.2012 and he lent Rs.1,70,000/- on the same date
by cash and period of the repayment is 06 months. The
said borrowing is for marriage of sister of the respondent -
accused. It is further case of the compliant that on
25.06.2013, the respondent -accused has issued cheque
dated 26.06.2013 for Rs.1,70,000/- and it has been
dishonoured for want of funds. The respondent -accused
has admitted his signature on Ex.P1 -cheque. As the
respondent -accused has admitted his signature on Ex.P1
-cheque, the presumption has to be drawn under Section
139 of the N.I Act that the cheque has been issued for
discharge of debt. The said presumption is rebuttable
presumption. The standard of proof for rebutting the said
presumption is preponderance of probability.
8. It is specific defence of the respondent -
accused that he has borrowed the money from the
appellant -complainant during the year 2011 and at that
time he had issued blank signed cheque to the
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complainant. He has repaid said amount borrowed to the
complainant. P.W.1 in his cross examination has admitted
that the accused has borrowed money from him in the
year 2011 and he has repaid the said amount. P.W.1 has
denied the suggestion that during the year 2011 for the
said transaction has received the cheque as security.
P.W.1 in his cross examination has admitted that the
amount in words has been altered in the words as
"Seventy". P.W.1 has denied the suggestion that
numerical three in the date of the cheque has been
altered. On close scrutiny of the said date of the cheque
by using magniying glass it is seen that the year 2011 has
been altered and over written as year 2013. The last
numerical one has been altered as numerical three. The
very said fact probablise the defence of the respondent -
accused that signed cheque has been given by the
respondent -accused to the complainant in the year 2011.
Considering the said aspect, the respondent -accused has
rebutted the presumption drawn under Section 139 of the
N.I. Act. As presumption is rebutted it is for the
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complainant to establish that the said lending and issuance
of cheque for discharge of the debt. P.W.2 is stated to be
witness to the transaction of the lending by the appellant -
complainant to the respondent -accused. P.W.2 in his
evidence stated that the transaction has taken in his
presence on 12.09.2012. In the cross examination P.W.2
has admitted that he is acquainted with the complainant
since 18 years and he is doing business of dealing in old
vehicles with the appellant -complainant since last 18
years. P.W.2 has denied the suggestion that the appellant
-complainant will do transactions in his presence.
Considering the said aspect, P.W.2 is an interested witness
and his evidence cannot be relied.
9. The alleged request by the respondent -
accused for hand loan is on 12.09.2012 and alleged
lending of Rs.1,70,000/- by cash by the appellant -
complainant to the respondent -accused is on the same
day i.e. 12.09.2012. What was the source of the said
amount of Rs.1,70,000/- by cash by the complainant is
not explained. Considering all these aspects, the appellant
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-complainant has failed to prove that the respondent -
accused has borrowed Rs.1,70,000/- and issued Ex.P1 -
cheque for discharging the said debt. Even though the
acquittal by the trial Court is on different grounds,
considering above aspect, the judgment of acquittal
requires to be affirmed. There are no grounds for
reversing the judgment of acquittal.
10. In the result, the appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
