Karnataka High Court
The Primary Co-Operative Agriculture vs Shamshuddin S/O Dastgirsab Kakhanaki on 14 July, 2025
Author: V .Srishananda
Bench: V. Srishananda
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CRL.A No. 200087 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO. 200087 OF 2022
(378(Cr.PC)/419(BNSS))
BETWEEN:
THE PRIMARY CO-OPERATIVE AGRICULTURE &
RURAL DEVELOPMENT BANK LTD.,
REP. BY ITS MANAGER -
SUDHIR S/O BANDURAO CHAVAN,
AGE: 36 YEARS, OCCU: BRANCH MANAGER,
R/O. NEAR NAGOOR AYUR VEDIC HOSPITAL,
Digitally signed by VIJAYAPURA-586102.
SUMITRA
SHERIGAR ...APPELLANT
Location: HIGH (BY SRI R.S. LAGALI, ADVOCATE)
COURT OF
KARNATAKA
AND:
SHAMSHUDDIN S/O DASTGIRSAB KAKHANAKI,
AGE: 51 YEARS, OCCU. AGRICULTURE,
R/O. HONNUTAGI VILLAGE,
TQ. & DIST. VIJAYAPURA-586127.
...RESPONDENT
(SERVED, BUT UNREPRESENTED)
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CRL.A No. 200087 of 2022
HC-KAR
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C., PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED
30.12.2021 PASSED IN CRIMINAL CASE NO.893/2021 BY
THE I ADDL. CIVIL JUDGE AND JMFC, VIJAYAPURA AND
CONVICT THE APPELLANT FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT
AND IMPOSE FINE AMOUNT, WHICH IS DOUBLE THE
CHEQUE AMOUNT AND COMPENSATE THE APPELLANT.
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE V. SRISHANANDA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE V .SRISHANANDA)
1. Heard Sri R.S. Lagali, learned counsel, for the
appellant - Bank.
2. Respondent-accused though served with the
notice of the appeal, remained absent.
3. Complainant is the appellant - Bank, who has
challenged the order of acquittal of the accused for offence
under Section 138 of Negotiable Instruments Act (for short
'N.I. Act') in C.C. No.893/2021 dated 30.12.2021 by the I
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Additional Civil Judge and JMFC, Vijayapura, (for short
'Trial Magistrate').
4. Facts in brief, which are utmost necessary for
disposal of the present appeal, are as under:
4.1 A private complaint came to be filed under
Section 200 of Cr.P.C., alleging the commission of the
offence against the accused under Section 138 of N.I. Act,
by contending that the accused is the member of the
complainant having membership bearing No.3933 and he
obtained personal loan in a sum of Rs.1,00,000/- for his
domestic and legal necessity.
4.2 Complainant - Bank granted the said personal
loan on 29.01.2018. Accused failed to repay the loan
installments as agreed and therefore, the complainant
demanded the accused to repay a sum of Rs.94,000/-.
Accused has issued a Cheque bearing No.005607 dated
19.12.2020 in favour of the complainant for an amount of
Rs.94,000/- on his account maintained in Axis Bank,
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Vijayapura. The said Cheque on presentation came to
dishonored with an of endorsement that 'account closed'.
4.3 Complainant approached the accused to repay
the amount, but accused has not shown any response.
Therefore, a legal notice was issued on 29.12.2020
through registered post and demanded payment order by
a Cheque in a sum Rs.94,000/-. The said notice is served
on the accused on 04.01.2021, but accused failed to pay
the amount covered under the Cheque nor replied the
legal notice and therefore, sought for action against the
accused.
5. Learned Trial Magistrate after completing the
necessary formalities, summoned the accused and
recorded the plea. Accused pleaded not guilty, therefore,
trial was held.
6. In order to prove the case of the complainant,
complainant got examined its Officer by name Sri Sudheer
Chavan as PW1 by filing an affidavit. On its behalf, seven
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documents were placed on record, viz., dishonoured
Cheque, Bank endorsement, copy of the legal notice,
postal receipt and postal acknowledgment, authorization
letter to represent the complainant - Bank and extract of
the loan due, as per Exs.P1 to P7.
7. In his cross-examination, he admits that he is
working as the Manager about one year from the date of
cross-examination being 18.11.2021. He has further
answered that about three years earlier, Rs.1,00,000/- is
paid as personal loan and at that juncture Cheque in
question was taken by the Bank.
8. He admits that there was a surety taken at the
time of granting the loan and so also Promissory Note. He
has answered that two years the accused has repaid the
loan amount and he did not repay subsequently. He has
answered that on 19.11.2021 the Cheque was presented
to the Bank as he stopped repaying the loan amount. He
has further answered that within a period of six months
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from the date of taking the loan, accused has repaid a
sum of Rs.20,000/- and the same is appropriated towards
the interest and principal amount.
9. He further admits that on 29.01.2018 accused
has repaid a sum of Rs.20,000/- and receipts have been
given. He admits the four receipts, wherein, the accused
has repaid the amount, which were marked as Exs.D1 to
D4.
10. He further admits that despite being deduction
to the amount paid in Exs.D1 to D4, there are dues to the
complainant - Bank.
11. Learned Trial Judge after completion of
evidence, recorded accused statement as is contemplated
under Section 313 of Cr.P.C. Subsequent thereto, accused
got examined himself as DW1 by filing an affidavit,
wherein, he has specifically stated that he has signed on
the blank document at the time of obtaining Rs.1,00,000/-
as personal loan.
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12. He further deposed that four Cheques have
been taken by the Bank on 29.01.2019, which were bank.
13. He has specifically deposed that after paying
two installments, on account of COVID-19 Pandemic, he
was unable to pay the installments and the same has been
intimated to the Bank Manager.
14. He further deposed that the Bank Manager
represented that he would discuss with the DCC Bank and
then revert. It is also his deposition that even after filing
the present complaint, the Bank Managers are visited his
house and harassing him.
15. He has specifically deposed that there was no
bad intention and he did not have money on account of
COVID-19 Pandemic and therefore, he could not repay the
money in time. He has further deposed that he is a poor
agriculturist and there are seven members in his family,
who are dependent on him and he is ready to pay a sum
of Rs.15,000/- to close the matter.
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16. In his cross-examination, he has admitted that
as against Rs.1,00,000/- he has repaid Rs.47,000/-. He
denied that as on 19.12.2020 he was due in a sum of
Rs.97,000/-. He denied the suggestion that intentionally
he closed the account after issuing blank Cheque. He
denied that in order to avoid the liability he has deposed
falsely.
17. The above evidence on record has sought to be
re-appreciated by the counsel for the appellant.
18. On careful consideration of the above, except
Ex.P7, there is no other document that has been placed on
record on behalf of the appellant - Bank. Further, the
PW1 is not the person, who sanctioned the loan. There
was no impediment for the Bank to produce the necessary
documents to establish that as on the date of presentation
of the Cheque, the accounts statement of the complainant
had the due of Rs.94,000/-.
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19. Admittedly, Exs.D1 to D4 are the receipts of the
payments made by the accused to the complainant. Same
is not taken note of by the PW1 while furnishing the Ex.P7
before the Court. Admittedly, PW1 was not working in the
complainant - Bank when Exs.D1 to D4 has come into
existence.
20. Therefore, there was no positive evidence on
record placed by the complainant to establish that there
existed the legally recoverable due in a sum of
Rs.94,000/- as per Ex.P7, whereby, the Cheque in
question came to be issued by the accused towards the
repayment of the loan.
21. On the contrary, there is a clear testimony of
the accused that Ex.P1 Cheque was taken in blank at the
time of the lending loan itself. He has taken a specific
defence that because of COVID-19 Pandemic, he could not
repay the loan. However, in his cross-examination, he has
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admitted that a sum of Rs.15,000/- he would pay to close
the account.
22. For the reasons best known to the complainant
- Bank, they did not agree for the same.
23. Taking note of the fact that the accused has
agreed to repay a sum of Rs.15,000/- towards the loan
amount, his admission has been totally overlooked by the
learned trial Magistrate. Therefore, even though the
Cheque is presented for a sum of Rs.94,000/-, since, there
is an admission that accused is due in a sum of
Rs.15,000/-, the complaint ought to have been allowed to
the extent of Rs.15,000/-, especially when there is a clear
admission on oath.
24. The learned Trial Magistrate failed to consider
the same. Therefore, the dismissal of the complaint in
toto needs to be set aside by allowing the complaint in a
sum of Rs.15,000/-.
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25. Accordingly, the following:
ORDER
i) Appeal is allowed in part.
ii) Respondent-accused is convicted for
the offence under Section 138 of N.I. Act and is
directed to pay a sum of Rs.15,000/- on or
before 31.08.2025, failing which, he shall
undergo simple imprisonment for a period of six
months.
Sd/-
(V. SRISHANANDA)
JUDGE
SBS
CT:PK
