Karnataka High Court
Chandpasha S/O Babusab Shahapur vs Rajab Bi W/O Chaman Mulla on 28 July, 2025
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CRL.A No. 200235 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 200235 OF 2021
(397(Cr.PC)/438(BNSS))
BETWEEN:
CHANDPASHA S/O BABUSAB SHAHAPUR,
AGE:40 YEARS, OCC:LEGAL PRACTITIONER,
R/O. GULSHAN-E-ARAFAT COLONY,
HAGARGA ROAD, KALABURAGI.
...APPELLANT
(BY SRI. B. C. JAKA, ADVOCATE)
AND:
RAJAB BI W/O CHAMAN MULLA,
AGE:44 YEARS, OCC: TEACHER,
R/O. BIBI RAZA GIRLS HIGH SCHOOL,
Digitally signed by RAUZA BAZURG, KAHAJA COLONY,
RAMESH KALABURAGI-585104.
MATHAPATI
...RESPONDENT
Location: HIGH
COURT OF (RESPONDENT SERVED)
KARNATAKA
THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED 10.02.2020
OF III ADDL. DIST. AND SESSIONS JUDGE, KALABURAGI
PASSED IN CRL.APPEAL NO.18/2020 CONFIRMING THE
JUDGMENT OF CONVICTION DATED 30.12.2019 OF PRL. CIVIL
JUDGE AND JMFC, KALABURAGI IN C.C.NO.3266/2018 IN
RESPECT OF OFFENCES P/U/SEC.138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 200235 of 2021
HC-KAR
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE M G UMA)
The complainant in C.C.No.3266/2018 on the file of
the learned Principal Civil Judge and JMFC, Kalaburagi, [for
short 'the Trial Court'] is impugning the judgment dated
10.02.2020 passed in Criminal Appeal No.18/2020 on the
file of the III Addl. District and Sessions Judge, Kalaburagi,
[for short, 'the First Appellate Court'] allowing the appeal,
setting aside the judgment of conviction and order of
sentence dated 30.12.2019 passed in C.C.No.3266/2018
and acquitting the accused for the offence punishable
under Section 138 of Negotiable Instrument Act (for short
'N.I.Act')
2. The facts of the case in brief are that:
The appellant being the complainant filed the private
complaint against the accused/respondent under Section
200 of Cr.P.C. alleging the commission of offence
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punishable under Section 138 of NI Act. It is contended
that the accused borrowed hand loan of Rs.5,00,000/- on
12.08.2016 and agreed to repay the same within six
months. She had not repaid the loan amount as
undertaken and finally when the complainant started
demanding the amount back, she issued the cheque
bearing No.444153 dated 20.02.2018 for Rs.5,00,000/-.
The cheque was presented for encashment. It was
returned unpaid with the endorsement 'funds insufficient'.
A legal notice was issued calling upon the accused to pay
the cheque amount. The notice was served on the
accused. But there was no reply nor there was compliance
of the demand made therein. Therefore, the private
complaint came to be filed.
3. The accused has appeared before the Court and
pleaded not guilty.
4. The complainant examined himself as PW-1 and
got marked Exs.P-1 to P-5 in support of his contention.
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The accused denied all the incriminating materials
available on record in his statement under Section 313
Cr.P.C. examined DW-1 to DW-3 and got marked Ex.D-1.
The Trial Court, after taking into consideration all these
materials on record, passed the judgment dated
30.12.2019 convicting the accused for the offence
punishable under Section 138 of N.I. Act. Being aggrieved
by the same, the accused has preferred Criminal Appeal
No.18/2020 before the first appellate Court. The first
appellate Court, on re-appreciation of the materials on
record, allowed the appeal vide judgment dated
10.02.2020, setting aside the impugned judgment of
conviction and order of sentence passed by the Trial Court.
Being aggrieved by the same, the complainant is before
this Court.
5. Heard learned counsel Sri B.C. Jaka appearing
for the appellant. Respondent though served has remained
un-represented. Perused the materials, including the Trial
Court records.
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6. In view of the contentions urged by learned
counsel for the appellant, the point that would arise for my
consideration is:
"Whether the judgment of the First Appellate
Court acquitting the accused by setting aside the
judgment of conviction and order of sentence
passed by the Trial Court, suffers from infirmities
and calls for interference by this Court?"
My answer to the above point is in the 'Affirmative',
for the following:
REASONS
7. It is the specific contention of the complainant
that the accused had borrowed a sum of Rs.5,00,000/-
and had promised to repay the same within six months.
Even after six months, the loan amount was not repaid.
However, the accused has issued the cheque referred to
above towards repayment of the legally enforceable debt.
When the cheque was presented for encashment, it was
dishonoured as there was insufficient fund to honour the
cheque. Legal notice was issued to the accused calling
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upon her to pay the cheque amount. Inspite of service of
notice, there was neither a reply nor compliance of the
demand made therein. Therefore, a private complaint was
came to be filed against the accused.
8. The complainant examined himself as PW-1 and
reiterated his contention as taken in the private complaint.
Ex.P-1 is the cheque which was issued by the accused to
the complainant, Ex.P-2 is the endorsement by the bank to
show that the cheque was dishonoured as there was
insufficient fund in the account of the accused, Ex.P-3 is
the copy of the legal notice, Ex.P-4 is the postal receipt,
Ex.P-5 is the endorsement issued by the postal authority
that the legal notice was served on the addressee.
9. During cross-examination of PW-1 it was
suggested that Ex.P-1 was issued by the accused to DW-3.
In turn DW-3 had produced it before the complainant who
was an Advocate. He misused the same and issued legal
notice. All these suggestions are denied by PW-1. It is
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also suggested to PW-1 that immediately after receipt of
the legal notice by the accused, she had met the
complainant. The complainant informed her that she is
required to take order of bail and he undertaken to
withdraw the criminal complaint that was registered
against her. These suggestions are denied by PW-1.
10. The accused has stepped into witness box and
deposed as DW-1 asserting that she had obtained loan of
Rs.6,00,000/- from DW-3 and Rs.3,00,000/- was repaid.
Towards repayment of the remaining Rs.3,00,000/-, she
had issued the cheque Ex.P-1 in favour of DW-3. The
same was misused by the complainant and presented for
encashment. However, during cross-examination, DW-1
asserted that she had given a reply to the complainant.
But no such document is produced to substantiate the
same. Witness got marked Ex.D-1 the copy of the
complaint given by DW-3 to the Bar Association which is
dated 17.07.2019 and contended that the Bar Association
has initiated action against the complainant as he
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committed misconduct by presenting the cheque Ex.P-1
produced by DW-3.
11. DW-2 is the husband of the accused. He
reiterated the say of the accused. Witness stated that no
reply was issued to the complainant on receipt of the legal
notice. He admits that DW-3 is his very good friend.
12. DW-3 states that he lent an amount of
Rs.6,00,000/- to the accused, out of which Rs.3,00,000/-
was repaid, towards repayment of the remaining
Rs.3,00,000/- the cheque in question was issued. He had
handed over the said cheque to the complainant. The
same was misused by him. During cross-examination, the
witness stated that he is not having any document to show
that he had lent any amount to the accused. He is also
not having any document to show that he has approached
the complainant and handed over the cheque Ex.P-1 to
initiate legal action against the accused. Witness stated
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that the accused is very familiar to him since his daughter
is studying in the school where the accused is a teacher.
13. Ex.D-1 is the complaint dated 17.07.2019 filed
by DW-3 with the President of Bar Association, Kalaburagi
alleging that the complainant misused the cheque Ex.P-1
which was given by him for initiation of action against the
accused. He made several allegations against the
complainant and requested the Bar Association to initiate
action against him.
14. It is pertinent to note that the legal notice
issued by the complainant is dated 22.03.2018, the
private complaint was came to be filed on 27.04.2018.
The complainant was cross-examined by the accused on
01.07.2019. Ex.D-1 - the complaint that was filed with
the President of the Bar Association, Kalaburagi is dated
17.07.2019 i.e., after cross-examination of PW-1.
15. The accused who is examined as DW-1 asserted
that she had issued the reply notice but later admitted
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that no such reply was issued. On the other hand, she
contended that she had met the complainant who
undertook to withdraw the criminal complaint. Even after
that no action whatsoever was taken against the
complainant either by the accused or by DW-3. The
conduct of the accused and DW-3 is very strange. It is not
explained as to why DW-3 has not initiated any action
against the complainant even though it is stated that he
had misused the cheque that was issued by the accused
and handed over to the complainant for filing the
complaint. It is only after cross-examination of PW-1,
Ex.D-1 was came to be filed.
16. It is pertinent to note that the accused is not a
village rustic but she is a Teacher in a Government School.
DW-2 is the husband of the accused and he is also a
Teacher by profession. DW-1 to DW-3 admitted in clear
terms that they know each other very well. All these facts
and circumstances create serious doubt about the defence
taken by the accused.
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17. It is the well settled proposition of law that once
the accused admits that the cheque belongs to her bank
account, and the signature found on Ex.P-1 is her
signature, the legal presumption under Sections 138 and
118 of N.I. Act would arise in favour of the complainant.
The burden shifts on the accused to rebut the legal
presumption. Even though the accused has stepped into
the witness box, after cross-examination of PW-1 and also
examined DW-2 and DW-3, got marked Ex.D-1, the
accused has not probablized the defence. Under such
circumstance, the accused is liable for conviction.
18. I have gone through the impugned judgment of
conviction and order of sentence passed by the Trial Court
which held the accused guilty of the offence punishable
under Section 138 of N.I. Act and sentenced to pay a fine
of Rs.6,00,000/- for the offence punishable under Section
138 of N.I. Act. In default of payment of fine by the
accused, to undergo simple imprisonment for 6 months.
However, when the said judgment was impugned before
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the First Appellate Court by the accused, the First
Appellate Court passed the impugned judgment setting
aside the judgment of conviction and order of sentence
passed by the Trial Court solely on the ground that the
complainant has not proved his financial capacity to lend
the amount. No such defence appears to be taken by the
accused during cross-examination of PW-1. When the
accused clearly admits that Ex.P-1 cheque belongs to her
bank account and it bears her signature, it is for her to
probablize her defence. On her failure, she is liable for
conviction. Under such circumstances, I am of the opinion
that the impugned judgment of acquittal passed by the
First Appellate Court is liable to be set aside. Accordingly,
I answer the above point in the affirmative and proceed to
pass the following:
ORDER
(i) The appeal is allowed.
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(ii) The impugned judgment dated 10.02.2020
passed in Criminal Appeal No.18/2020 by
the III Additional District and Sessions
Judge, Kalaburagi is set aside. The
judgment of conviction and order of
sentence dated 30.12.2019 passed in
C.C.No.3266/2018 by the Principal Civil
Judge and JMFC, Kalaburagi is restored.
Registry is directed to send back the Trial Court and
Appellate Court records.
Sd/-
(M G UMA)
JUDGE
MSR,SWK
CT:PK
