Karnataka High Court
Sunanda W/O Shivanand Rotti vs Mallappa S/O Basappa Ingalagi on 19 June, 2025
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CRL.A No. 100287 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.100287 OF 2017 (A)
BETWEEN:
SUNANDA W/O. SHIVANAND ROTTI,
AGED ABOUT 44 YEARS,
OCC. BUSINESS AND HOUSEWIFE,
R/O. KAMBLI GALLI, BAGALKOTE,
DIST. BAGALKOTE.
...PETITIONER
(BY SRI. VIJAY S. CHINIWAR, ADVOCATE)
AND:
MALLAPPA S/O. BASAPPA INGALAGI,
AGED ABOUT 69 YEARS,
OCC. PENSIONER,
R/O. CHANNABASAVAKRUPA BUILDING,
SUB-JAIL ROAD, SAIDAPUR, DHARWAD,
DIST. DHARWAD.
Digitally
signed by
...RESPONDENT
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2025.06.21
(BY SRI. S.N. BANAKAR, ADVOCATE)
11:50:31
+0530
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4)
OF CR.P.C., SEEKING TO CALL FOR RECORDS AND TO SET ASIDE
THE JUDGMENT AND ORDER DATED 03.07.2017 PASSED BY PRL.
DISTRICT AND SESSIONS JUDGE, BAGALKOTE IN CRL. APPEAL
NO. 92 OF 2014 AND TO CONFIRM THE JUDGMENT AND ORDER
DATED 18.10.2014 PASSED BY THE ADDL. CIVIL JUDGE AND
JMFC BAGALKOTE IN C.C.NO. 420 OF 2010 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K
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CRL.A No. 100287 of 2017
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)
In this appeal the appellant/complainant has assailed
the judgment of acquittal dated 03.07.2017 in
Crl.A.No.92/2014 passed by the Principal District and
Sessions Judge, Bagalkot (hereinafter referred to as the
'First Appellate Court'), whereby the learned First
Appellate Court allowed the appeal filed by the accused
and acquitted him for the offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (for
short 'N.I. Act') by setting aside the judgment of
conviction and sentence dated 18.10.2014 in
C.C.No.420/2010 passed by the Additional Civil Judge and
JMFC, Bagalkot (hereinafter referred to as the 'learned
Magistrate').
2. For the sake of convenience, the parties are
referred to as per their rankings before the trial Court.
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3. The abridged facts of the case are as under:
The complainant and the accused are known to each
other. The accused was in need of money for his family
necessities and he approached the complainant in the year
2008 for financial assistance of ₹50,000/- . Based on the
request, the complainant advanced an amount of
₹50,000/- to the accused by way of cash. The accused
executed a document i.e. acknowledgment receipt for
obtaining the said amount. After few days, the
complainant demanded to repay the said amount.
However, the accused failed to repay the loan amount and
finally he issued a cheque dated 25.02.2009, bearing
No.5376284, drawn on Dena Bank, Dharwad Branch for a
sum of ₹50,000/- . The said cheque was presented by the
complainant for encashment through her banker i.e. State
Bank of India, Bagalkot Branch. However, the said cheque
was dishonoured for the reason 'funds insufficient' and an
endorsement to that effect was issued by the Bank. The
said aspect was intimated by the complainant to the
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accused through legal notice dated 21.03.2009. The said
legal notice was served on the accused and he replied to it
by denying the averments made in the legal notice.
Thereafter, left with no other option, the complainant filed
a private complaint under Section 200 of Cr.P.C., before
the learned Magistrate against the accused for the offence
punishable under Section 138 of the N.I. Act.
4. To prove the case before the trial Court, the
complainant herself examined as PW.1 and got marked 11
documents as Exs.P1 to P11. The accused also examined
himself as DW.1 and got marked 8 documents as Ex.D1 to
Ex.D8.
5. On assessment of oral and documentary
evidence, the learned Magistrate convicted the accused for
the offence punishable under Section 138 of N.I Act and
ordered as follows:
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"ORDER
Acting U/sec.255(2) of Cr.P.C., accused
is hereby convicted for the offence
punishable U/Sec.138 of Negotiable
Instruments Act.
The accused is sentenced to undergo
simple imprisonment for six months and also
sentenced to pay fine of Rs.75,000/- (Rs.
Seventy Five Thousand Only). In default to
payment of fine amount, he shall undergo
Simple Imprisonment for Thirty days.
Out of fine recovered U/Sec.357 of
Cr.P.C., a sum of Rs.70,000/- (Rs.Sevnety
thousand only) shall be paid to complainant,
which includes the Cheque amount and also
cost of the proceedings.
The bail bond and surety bond of the
accused stands cancelled."
6. Aggrieved by the same, the accused preferred
the appeal before the First Appellate Court in
Crl.A.No.92/2014.
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7. On reassessment of the evidence on record, the
First Appellate Court allowed the appeal and set aside the
judgment of conviction and sentence passed by the
learned Magistrate and acquitted the accused for the
offence punishable under Section 138 of the N.I. Act. The
said judgment of the First Appellate Court is under
challenge in this appeal.
8. Heard the learned counsel Sri. Vijay S Chinivar
for the appellant-complainant and the learned counsel
Sri.S.N.Banakar, for the respondent-accused.
9. The primary contention of the learned counsel
for the appellant-complainant is that the First Appellate
Court has grossly erred in allowing the appeal by setting
aside the judgment of conviction and sentence passed by
the trial Court. He contended that the oral and
documentary evidence on record clearly proves the
monitory transaction between the accused and the
complainant and the issuance of cheque in question by the
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accused, despite the First Appellate Court has acquitted
the accused for the reason that the complainant has failed
to establish the legally recoverable debt and the accused
has rebutted the initial presumption available under
Section 118 and 139 of the N.I. Act. As such, the
judgment passed by the First Appellate Court is erroneous
and against the settled principle of law. Accordingly, he
prays to set aside the judgment of acquittal and to uphold
the judgment of conviction passed by the trial Court.
10. Per contra, learned counsel appearing for the
respondent-accused contended that the judgment
challenged in this appeal does not suffer from any
perversity or illegality. He further contended, the First
Appellate Court after meticulously examining the entire
evidence and documents on record, has passed the well
reasoned judgment by setting aside the judgment of
conviction and sentence passed by the trial Court. He
contended that in the evidence of the accused, it is clearly
stated that he had obtained a hand loan of ₹50,000/- from
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the complainant in the year 2005 and it was repaid
subsequently from the year 2005 to 2006 through
Demand Drafts. The counterfoils of Demand Draft Forms
were marked at Ex.D1 to Ex.D6. Further, he also
contended that in the complaint, the complainant has
failed to state the date and month of advancing the hand
loan of ₹50,000/- to the accused. In such circumstances,
according to him, the Appellate Court has rightly set aside
the judgment of conviction and sentence passed by the
trial Court and acquitted the accused for the offence under
Section 138 of the N.I. Act. Accordingly he prays to
dismiss the appeal.
11. Having heard the learned counsel for the parties
and on perusal of the entire material available on record,
the only point that would surface for my consideration is:
"Whether the First Appellate Court is
justified in acquitting the accused for the
offence punishable under section 138 of
the N.I. Act by setting aside the
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judgment of conviction and sentence
passed by the trial court in
C.C.No.420/2010?
12. I have given my anxious consideration to the
arguments advanced by both the learned counsel and
perused the materials on record.
13. On careful scrutiny of the evidence available on
record, it could be gathered that the cheque in question
and the signature of the accused on it is not seriously
disputed by the accused. It is the specific defence of the
accused that he had obtained a hand loan of ₹50,000/-
from the complainant in the year 2005 to perform the
marriage of his daughter and subsequently in the year
2005 and 2006 he repaid the said loan in installments. To
substantiate the said defence, the accused placed the
counterfoils Demand Draft Forms as per Ex.D1 to Ex.D6.
14. On careful perusal of the complaint filed by the
complainant before the Trial Court, as rightly contended by
the learned counsel for the accused, nowhere the date and
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month of advancing the loan amount to the accused are
forthcoming. However, it is stated that the cheque in
question was issued in the year 2009 as per Ex.P1.
Further, it is stated in the complaint that the accused
executed a document acknowledging receipt of hand loan
obtained by him. Though the said document was not
marked in the evidence, the same was placed by the
complainant along with the complaint. On perusal of the
said document, it could be seen, a correction was carried
out by changing the year from 2005 to 2008. It is the
specific defence taken by the accused that he had
obtained the hand loan in the year 2005, and as a security
for the said loan amount, he had issued cheque in
question and the said receipt to the complainant. Though
the said hand loan was repaid by the accused in the year
2005 and 2006, the complainant did not return the said
cheque to the accused and later in the year 2009, she
presented the said cheque for unlawful gain. The said
defence of the accused is forthcoming even in the reply
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notice Ex.P7. Further, on careful perusal of Ex.D1 to
Ex.D6, the counterfoil Demand Draft Forms, it reveals that
the accused has paid a sum of ₹44,000/- on different
dates to the complainant by way of demand drafts. It is
the case of the accused that the remaining amount of
₹6,000/- was paid by the accused by way of cash. It is
vehemently contended by the learned counsel for the
complainant that though the accused had obtained a hand
loan of ₹50,000/- in the year 2003 to 2005 and after
repaying the same, again borrowed hand loan of
₹50,000/- from the complainant and to repay the same,
he issued the cheque in question (Ex.P1). However, on
careful perusal of the complaint and the legal notice-
Ex.P4, there is no such averment forthcoming that there
was financial transaction between the complainant and the
accused ever since from the year 2003 and the accused
had obtained a hand loan in the year 2005 and repaid the
same and subsequently, he obtained loan of ₹50,000/- in
the year 2008.
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15. No doubt the initial presumption under Section
118 and 139 of the N.I.Act favours the complainant. In
such circumstances, the defence put forth by the accused
is a probable one. No doubt, the initial presumption arise
under Section 118 and 139 of the N.I. Act favours the
accused, nevertheless the same can be rebutted by
placing probable defence by the accused as held by this
Court and the Hon'ble Apex Court in catena of judgments.
In the instant case, the accused has rebutted the initial
presumption by placing Ex.D1 to Ex.D8 documents and
oral evidence. Further, this appeal is against the judgment
of acquittal and it is settled position of law that the
Appellate Court shall not interfere with the acquittal
judgment unless the trial Court had not taken a plausible
view. In the instant case, the First Appellate Court has
taken a plausible view. Under such circumstances, I find
no good grounds to interfere in the acquittal judgment
passed by the First Appellate Court. In that view of the
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matter, I answer point raised above in the affirmative and
proceed to pass the following:
ORDER
The Criminal Appeal No.100287/2017 is hereby
dismissed.
SD/-
(RAJESH RAI K)
JUDGE
YAN
