Karnataka High Court
Sri. Tulasappa Kalmani S/O Yankappa ... vs Sri. Poojari Shekappa S/O Ayyappa on 3 July, 2025
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CRL.A No. 100227 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.100227 OF 2017 (A)
BETWEEN:
SRI. TULASAPPA KALMANI S/O. YANKAPPA KALMANI,
AGED ABOUT 55 YEARS, OCC. AGRICULTURE,
R/AT: GANGAVATHI, DIST. KOPPAL.
...APPELLANT
(BY SRI. SHIVAKUMAR APARAJ, ADVOCATE FOR
SRI. MRUTYUNJAYA TATA BANGI, ADVOCATE)
AND:
SRI. POOJARI SHEKAPPA S/O. AYYAPPA,
AGED ABOUT 56 YEARS,
OCC. AGRICULTURE, R/AT: WARD NO.15,
MUCHIGER STREET, NEAR GANDHI CHOWK,
GANGAVATHI, DIST. KOPPAL.
...RESPONDENT
(BY SRI. NEELENDRA D. GUNDE, ADVOCATE)
Digitally
signed by
YASHAVANT
YASHAVANT
NARAYANKAR
NARAYANKAR Date:
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF
2025.07.07
14:37:20
+0530
CR.P.C., PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL PASSED
BY THE PRL. CIVIL JUDGE AND JMFC AT GANGAVATHI PASSED IN
C.C.NO.1111 OF 2015 DATED 21.04.2017 AND CONVICT THE
RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 138
OF THE NEGOTIABLE INSTRUMENTS ACT BY ALLOWING THE
PRESENT APPEAL AFTER CALLING FOR RECORDS.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 100227 of 2017
HC-KAR
CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)
In this appeal, the appellant/complainant has assailed the
judgment of acquittal passed in CC No.1111/2015, dated
21.04.2017 by the Principal Civil Judge and JMFC, Gangavathi1,
whereby the learned Magistrate acquitted the
respondent/accused for the offence punishable under Section
138 of Negotiable Instruments Act, 18812.
2. The parties are referred to as per their rankings
before the trial Court, for the sake of convenience.
3. The abridged facts are that, the complainant and
the accused are the family friends. On 24.01.2015, the accused
borrowed a hand loan of Rs.8,00,000/- from the complainant
for his family needs and financial difficulties with the assurance
that he would repay the same with interest @ 24% per annum
within two months. To discharge the said legal debt, the
accused on the same day issued post dated cheque of
Hereinafter referred to as 'trial Court'
Hereinafter referred to as 'NI Act'
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Rs.8,00,000/- bearing No.960154 dated 24.03.2015 drawn on
Andhra Bank, Gangavathi Branch. When the complainant
presented the said cheque through its banker for encashment,
the same returned with an endorsement "insufficient funds".
Subsequently, the complainant issued legal notice dated
04.04.2015 and the same was served on the accused on
06.04.2015. The accused neither replied the legal notice nor
repaid the loan amount. As such, the complainant filed a
private complaint against the accused 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 himself
examined as PW.1 and examined one more witness on his
behalf as PW.2 and marked 11 documents as Exs.P1 to P11.
The accused examined himself as DW.1 and marked 18
documents as Exs.D1 to D18.
5. After assessment of oral and documentary
evidence, the trial Court acquitted the respondent/accused for
the offence punishable under Section 138 of N.I. Act. The said
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judgment of acquittal is under challenge in this appeal by the
complainant.
6. I have heard the learned counsel Sri. Shivakumar
Aparaj for Sri. Mrutyunjay Tata Bangi, learned counsel for the
appellant/complainant, so also learned counsel Sri. Neelendra D
Gunde, for the respondent/accused.
7. The primary contention of the learned counsel for
the appellant/complainant is that the trial Court has grossly
erred while acquitting the accused for the offence punishable
under Section 138 of N.I. Act, despite the complainant placing
sufficient evidence and documents on record. According to him,
PW.1 in his evidence has categorically deposed about the
advancing loan amount to the accused and the issuance of the
cheque by the accused for the said legally enforceable debt.
Further, the accused has not disputed the cheque in question
and signature on it. In such circumstance, initial presumption
favours the complainant; the accused failed to rebut the said
presumption by placing cogent evidence. Hence, the judgment
of acquittal passed by the Trial Court suffers from perversity
and illegality. Thus, he prays to allow the appeal and convict
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the accused for the offence punishable under Section 138 of
N.I. 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 his lending capacity of Rs.8,00,000/-
to the accused. Further, the accused had put forth probable
defence that in the year 2013, he availed a hand loan of
Rs.1,50,000/- from the complainant and at that time, the
complainant obtained 7 signed cheques and 10 promissory
notes as security. Though the accused repaid the said loan
amount, the complainant failed to return the said cheques and
promissory notes. Later, he filed this false case against the
accused for unlawful gain. He also contended that the
complainant filed another case by misusing one more cheque of
the complainant through one T. Murali for a sum of
Rs.8,00,000/- and recovery suit was also filed against the
accused through one D. Veereshappa for a sum of
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Rs.4,00,000/-. Moreover, the accused also lodged Police
complaint against the complainant before the Gangavathi Police
for obtaining cheques and promissory notes as security while
advancing loan and charging exorbitant interest. On the
strength of his complaint, the Police registered FIR against the
complainant for the offences punishable under Section 420,
109, 504, 506 read with Section 34 of IPC and Section 4 of the
Karnataka Prohibition of Charging Exorbitant Interest Act,
20043 in Crime No.178/2015 dated 04.08.2015. In such
circumstance, the defence of the accused is probable one, as he
has rebutted the initial presumption arising under the provision
of Section 138 of N.I. Act. As such, the Trial Court has rightly
acquitted the accused for the offence punishable under Section
138 of N.I. Act. Accordingly, he prays for dismissal of 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:
Hereinafter referred to as 'Act, 2004'
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"Whether the Trial Court is justified in
acquitting the accused for the offence
punishable under Section 138 of N.I. Act?"
10. I have given my anxious consideration to the
submissions made by both the learned counsels, so also
evidence available on record.
11. As could be seen from records, issuance of cheque
in question (Ex.P1) and signature of the accused on it is not
disputed by the accused. The specific defence of the accused is
that the cheque in question along with 7 cheques were handed
over to the complainant in the year 2013 while obtaining hand
loan of Rs.1,50,000/- as security. According to the accused, he
repaid the said loan amount to the complainant, but the
complainant failed to return the said cheques. Subsequently,
the complainant misused the cheque in question for unlawful
gain and filed this false complaint. On a careful perusal of the
cross-examination of complainant-PW1, he admitted in his
cross-examination, he is having 3 acres and 3 guntas of
agricultural land. He also admitted that, except the agricultural
income, he has no other source of income. Further, he admitted
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that Gangavathi Police have filed a criminal case against him
for charging exorbitant interest to the hand loan obtained by
the accused. The said complaint lodged by the accused and FIR
are marked as Exs.D2 and D3. In the evidence of DW.1 i.e.,
accused, he has stated that one more cheque belongs to him
which was obtained by the complaint from him as a security
while obtaining hand loan of Rs.1,50,000/- in the year 2013
was presented through one T. Murali for a sum of
Rs.8,00,000/- and a recovery suit was also filed against him by
one D. Veereshappa in O.S. No.29/2016 for recovery of
Rs.4,56,000/-. Further, PW.2 who examined on behalf of the
complainant also stated in his evidence that he is the brother of
complainant and their ancestral properties were partitioned
among them and the complainant has got share of 3 acres and
3 guntas of land, wherein the complainant is cultivating paddy
crop. PW.2 further stated that except the agricultural income,
the complainant has no other source of income. In such
circumstance, the complainant failed to prove the lending
capacity of Rs.8,00,000/- to the accused.
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12. Per contra, the accused produced document at
Ex.D3-complaint lodged by him against the complainant before
the Gangavathi Police, wherein it is alleged that the
complainant indulged in lending loan and he used to charge
exorbitant interest and also in the year 2013, at the time of
obtaining hand loan of Rs.1,50,000/-, the complainant had
obtained 7 signed cheques of the accused along with 10
promissory notes. Based on the said complaint, the Police also
registered FIR in Crime No.178/2015 for the aforementioned
offences.
13. On perusal of Ex.D6-complaint lodged by one T.
Murali against the accused, the same depicts that on
10.08.2015, the accused had availed hand loan of
Rs.8,00,000/- from him i.e., after lapse of 7 months from the
date of obtaining hand loan from the present complainant.
Ex.D12-plaint in O.S.No.29/2016 discloses that the accused
had obtained hand loan of Rs.4,00,000/- from one
D. Veereshappa on 10.06.2015. The defence taken by the
accused in this case is reiterated in the written statement filed
in O.S. No.29/2016. As could be gathered from this evidence
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that within a span of 6 months, the accused must have
obtained huge sum of Rs.20,00,000/- from 3 different persons.
The purpose of loan obtained by the accused is stated by the
complainant that it is only for agricultural activities. In such
circumstance, it cannot be believed the accused borrowed
Rs.8,00,000 from the complaint for the said purpose apart from
borrowing 8,00,000/- from one T. Murali and Rs.4,00,000/-
from Veereshappa. In such circumstance, a doubt in the alleged
transaction and legally enforceable debt by the accused to the
complainant. In that view of the matter, in my considered view,
the accused has rebutted initial presumption arising under
Sections 118 and 139 of the N.I. Act by placing probable
defence. This aspect of the matter has rightly and elaborately
discussed by the trial Court.
14. Nonetheless, this being the appeal against acquittal,
this Court and the Hon'ble Apex Court in catena of judgments
held that, if the trial Court has taken a plausible view, the
Appellate Court shall not interfere in the acquittal judgment.
Accordingly, I answer the point raised above in the
"affirmative" and proceed to pass the following:
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ORDER
The Criminal Appeal No.100227/2017 stands dismissed.
Sd/-
(RAJESH RAI K)
JUDGE
JTR
CT:PA
