Karnataka High Court
Shri.Rexen Kosta Fernandes vs Shri.Gangapati S/O Timmappa Naik on 10 July, 2025
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CRL.A No.100080 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100080 OF 2017
BETWEEN:
SHRI REXEN KOSTA FERNANDES,
AGE: 38 YEARS, OCC. BUSINESS,
R/O. AROLLI, MUNDAGOD,
TQ. HONNAVAR, DIST. KARWAR-581342.
...APPELLANT
(BY SRI. B.M. PATIL, ADVOCATE)
AND:
SHRI GANGAPATI S/O. TIMMAPPA NAIK,
AGE: 58 YEARS, OCC: BUSINESS,
R/O. AT/POST: KELGINUR,
TQ. HONNAVAR, DIST. KARWAR-581342.
...RESPONDENT
(BY KUM. BINDU GANACHARI, ADVOCATE FOR
SRI. V.M. SHEELVANT, ADVOCATE)
Digitally
signed by
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2025.07.11
378(4) OF CR.P.C., PRAYING TO CALL FOR RECORDS AND
10:23:41
+0530
PLEASED TO SET ASIDE THE JUDGMENT IN CRIMINAL CASE
NO. 340 OF 2013 DATED 13.01.2017 PASSED BY THE
PRINCIPAL JUDICIAL MAGISTRATE FIRST CLASS, HONNAVAR,
ACQUITTING THE ACCUSED AND PUNISH THE ACCUSED
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT
1881 BY ALLOWING THIS APPEAL.
THIS CRIMINAL PETITION, HAVING BEEN HEARD AND
RESERVED ON 03.07.2025, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K
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CRL.A No.100080 of 2017
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)
The appellant has assailed the judgment passed in
C.C.No.340/2013, dated 13.01.2017 by the Principal JMFC,
Honnavar1, whereby the trial Court acquitted the
accused/respondent for the offence punishable under Section
138 of the Negotiable Instruments Act, 18812.
2. For the sake of convenience, the parties are
referred to as per their rankings before the trial Court.
3. The abridged facts of the case are that, the
complainant and accused are known to each other. In the year
2013, the accused availed a hand loan of Rs.3,52,000/- from
the complainant and for repayment of the same, he issued a
cheque bearing No.014520 dated 09.03.2013 drawn on Batkal
PLD Bank, Manki Branch for a sum of Rs.3,52,000/-. As per the
advice of accused, the complainant presented the cheque
through his banker for encashment, however, the same was
returned with an endorsement "Funds Insufficient". Subsequent
thereto, the complainant issued a legal notice dated
Hereinafter referred to as 'Trial Court' for short
Hereinafter referred to as 'N.I. Act' for short
15.03.2013 to the accused to repay the said cheque amount.
The said notice returned with an endorsement "Not Claimed".
Hence, the complainant filed a private complaint under Section
200 of Cr.P.C. for the offence punishable under Section 138 of
the N.I. Act before the trial Court.
4. To prove the case, the complainant examined
himself as PW.1 and one more witness on his behalf as PW.2
and marked 7 documents as Exs.P1 to P7. The accused neither
examined any witness on his behalf, nor marked any
documents.
5. After assessment of oral and documentary
evidence, the trial Court acquitted the accused for the offence
punishable under Section 138 of the N.I. Act as stated supra.
The said judgment is under challenge in this appeal by the
complainant.
6. Heard the learned counsel Sri B.M. Patil for the
appellant/complainant, so also learned counsel Smt. Bindu
Ganadari, learned counsel for the respondent/accused.
7. The primary contention of the learned counsel for
the appellant/complainant is that the trial Court grossly erred
while acquitting the accused for the offence punishable under
Section 138 of the N.I. Act, despite the complainant placing
sufficient evidence on record to prove the case. According to
the learned counsel, the mandatory requirements provided
under Section 138 of the N.I. Act is complied by the
complainant. Further, the accused has not disputed the cheque
in question and his signature on it. However, the accused has
not rebutted the said presumption by placing cogent evidence.
According to the learned counsel, while acquitting the accused,
the trial Court significantly opined that the complainant failed to
prove the lending capacity of Rs.3,52,000/-. Per contra, the
complainant produced Exs.P5 to P7-receipts issued by the
Karnataka Bank for pledging gold ornaments of his wife in the
month of January and February, 2013 for a sum of
Rs.2,78,000/- and the balance amount was paid by him by
obtaining a loan in his wife's name. In such circumstance, the
complainant has proved advancing of loan amount. Despite, the
trial Court acquitted the accused in the impugned judgment
which is liable to set-aside. Accordingly, he prays to allow the
appeal and to convict the accused for the charged offence.
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. She contended that the complainant
failed to state the date and month of advancing the loan
amount to the accused. The amount in question is an odd
amount and the complainant has not stated for what purpose
the accused had obtained the said loan amount. Further, in the
complaint, the complainant has stated that the accused has
obtained a hand loan of Rs.3,52,000/- in a single payment,
however, in the cross-examination he stated that the said
amount was paid in 2 installments to the accused; the 1st
installment of Rs.2,46,000/- was paid by pledging the gold
ornaments of his wife at Karnataka Bank. Though the
complainant produced Exs.P5 to P7-receipts of the Bank, the
same do not have any seal or sign of the Bank authority.
Further, according to the complainant, the 2nd installment of
Rs.1,06,000/- was paid by him by obtaining loan in his wife's
name. Per contra, the accused placed probable defence that, in
the year 2010, the accused stood as a surety to the
complainant in connection with a criminal case and at that
time, his two signed cheques were stolen/misplaced. The same
was not within his knowledge and after filing the complaint; he
came to know about the same. This aspect is rightly
appreciated by the trial Court and acquitted the accused, as
such; interference does not call for in the impugned judgment.
Accordingly, she prays to dismiss 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:
"Whether the trial Court is justified in
acquitting the accused for the offence
punishable under Section 138 of the N.I. Act?"
10. As could be gathered from records, the cheque in
question-Ex.P1 and the signature of accused on it is not
seriously disputed by the accused. The specific defence of the
accused is that the same was stolen/misplaced during the year
2010 while he appeared in the Court to stand as surety to the
complainant in a criminal case. To prove the said defence, the
accused neither examined any witness nor marked any
documents. However, on careful perusal of the cross-
examination of the complainant, he has not stated the date and
month of advancing the loan to the accused. Further, according
to him, he is into areca nut and coconut business and having a
monthly income of Rs.30,000-40,000/-. To prove his lending
capacity of huge sum of Rs.3,52,000/-, he relied 3 documents
i.e., Exs.P5 to P7-receipts issued by the Karnataka Bank in
respect of gold loan. According to the complainant, in the
month of January and February, 2013 he pledged gold
ornaments of his wife in Karnataka Bank for a sum of
Rs.2,78,000/- and paid Rs.2,46,000/- to the accused. The
remaining amount of Rs,1,06,000/- was paid by him to the
accused by obtaining loan in his wife's name. This aspect is
deposed by the complainant for the first time in his cross-
examination and had not stated in the complaint. Further, he
admitted in his cross-examination that, after 22.01.2013, he
repaid the loan to Muthoot Finance and released the gold
ornaments of his wife. He also admitted that, one more cheque
bounce case was filed by him against the accused at Sirsi Court
and subsequently, withdrew the said case. The complainant
also admitted in his cross-examination that there are several
cheque bounce cases filed against him at Honnavar Court by
different persons in the year 2013-2014, which reveals that the
complainant himself was in financial crisis during that period.
Hence, it is hard to believe that he advanced a huge sum of
Rs.3,52,000/- to the accused during that period, that too by
pledging gold ornament of his wife in Bank. In such
circumstance, the complainant failed to produce cogent and
believable evidence to prove the legally recoverable debt by the
accused to him. As rightly contended by the learned counsel for
the accused, the hand loan and the cheque amount is an odd
amount of Rs.3,52,000/-. The complainant has not executed
any documents including the cheque in question at the time of
advancing the loan amount. Though the accused not replied to
the legal notice, the evidence of PW.2-the postman reveals
that, he has not served the legal notice to the accused and not
given any information to the family members of the accused.
The unserved postal cover depicts that "left not known and not
claimed". In such circumstance, it could be presumed that the
legal notice was not served to the accused to reply the claim of
the complainant. On a overall perusal of the evidence on
record, the accused has rebutted initial presumption under
Sections 118 and 139 of the N.I. Act with probable defence in
the cross-examination of the complainant. In that view of the
matter, I am of the considered view that the trial Court has
rightly acquitted the accused for the offence punishable under
Section 138 of the N.I. Act. Therefore, interference does not
call for in the impugned judgment. Accordingly, I answer the
point raised above in the "affirmative" and proceed to pass the
following:
ORDER
The Criminal Appeal No.100080/2017 stands dismissed.
SD/-
(RAJESH RAI K)
JUDGE
HKV
CT:PA
