Mahaboobsab S/O Khadri S/O Sahabuddin ... vs Imtiyaz S/O Ahmed S/O Abdulirahiman ...
2025 Latest Caselaw 6494 Kant

Karnataka High Court

Mahaboobsab S/O Khadri S/O Sahabuddin ... vs Imtiyaz S/O Ahmed S/O Abdulirahiman ... on 20 June, 2025

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                                                                  NC: 2025:KHC-D:7888
                                                          CRL.A No. 100401 of 2017


                        HC-KAR




                         IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                 DATED THIS THE 20TH DAY OF JUNE, 2025

                                                 BEFORE

                                 THE HON'BLE MR. JUSTICE RAJESH RAI K

                                 CRIMINAL APPEAL NO.100401 OF 2017 (A)

                        BETWEEN:

                        MAHABOOBSAB S/O. KHADRI
                        S/O. SAHABUDDIN PEERJADE,
                        AGE: 42 YEARS, OCC. AGRICULTURE,
                        R/O. FAKKIRANANDIHALLI, TQ. SAVANUR,
                        DIST. HAVERI.
                                                                         ...APPELLANT
                        (BY SRI. SAJID GOODWALA, ADVOCATE FOR
                            SRI. JAGADISH PATIL, ADVOCATE)

                        AND:

                        IMTIYAZ AHMED S/O ABDULRAHIMAN PANCHAMAHALDAR,
                        AGE: 44 YEARS, OCC. BUSINESS,
                        R/O. GARDENPET, HUGAR ONI,
                        OPP. TO MARUTI TEMPLE, TQ. HUBBALLI,
           Digitally


YASHAVANT
           signed by
           YASHAVANT
           NARAYANKAR
                        DIST. DHARWAD.
NARAYANKAR Date:
           2025.06.24
           10:12:13
           +0530
                                                              ...RESPONDENT
                        (BY SRI. SANTOSH B. MANE, ADVOCATE)

                               THIS CRIMINAL APPEAL IS FILED UNDER SECTION
                        378(4) OF CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT
                        AND ORDER PASSED BY        THE CIVIL JUDGE AND JMFC,
                        SAVANUR     IN   C.C.NO.72/2013   DATED     07.11.2017   AND
                        CONVICT THE RESPONDENT FOR THE OFFENCE PUNISHABLE
                        UNDER SECTION 138 OF N.I.ACT BY ALLOWING THIS APPEAL.
                                 -2-
                                             NC: 2025:KHC-D:7888
                                       CRL.A No. 100401 of 2017


 HC-KAR




      THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

                        ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

In this appeal, the appellant/complainant assailed the

judgment passed in C.C.No.72/2013, dated 07.11.2017, by the

Civil Judge and JMFC, Savanur (hereinafter referred to as the

'learned Magistrate'), whereby, the learned Magistrate

acquitted the accused/respondent for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881 (for

short 'N.I. Act').

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 the accused are known to each other. In the

year 2012 i.e., on 01.06.2012, the accused requested the

complainant for a hand loan of Rs.9,64,000/-. Due to their

friendship, the complainant agreed the accused's request and

paid the said amount subject to the condition that the accused

would repay the same within one month. However, the accused

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failed to repay the loan as agreed by him. Subsequently, the

complainant insisted the accused for repayment for the loan

amount, for the same, the accused issued a cheque bearing

No.717747 dated 30.07.2012 for an amount of Rs.9,64,000/-

drawn on Axis Bank, Hubli Branch. The said cheque was

presented for encashment by the complainant through his

banker on 13.09.2012. However, the said cheque was

dishonoured for the reason that 'the account was found to be

closed'. The same was informed to the complainant by the

complainant's bank by issuing a memo dated 24.09.2012. The

said aspect was intimated by the complainant to the accused by

issuing legal notice dated 17.10.2012 and the same was served

on accused. Subsequently, the accused replied to the said

notice on 22.10.2012, however he failed to repay the said hand

loan. Left with no other option, the complainant filed a private

complaint against the accused under Section 200 of the

Criminal Procedure Code (Cr.P.C) for the offence punishable

under Section 138 of the Negotiable Instruments Act (NI Act)

before the Trial Court.

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4. To prove the case before the learned Magistrate,

the complainant himself examined as PW.1 and also examined

2 witnesses on his behalf as PW.2 and 3 and marked 22

documents as Exs.P1 to P22. Though the accused did not

examine any witness on his behalf, however marked 1

document as Ex.D.1.

5. After assessment of oral and documentary

evidence, the learned Magistrate acquitted the accused for the

offence punishable under Section 138 of N.I Act. Aggrieved by

the same, the complainant preferred this appeal.

6. Heard Sri.Sajid Goodwala, learned counsel for the

complainant and Sri.Santosh B Mane, learned counsel for the

respondent-accused.

7. The primary contention of the learned counsel for

the complainant/appellant is that the learned Magistrate has

grossly erred in acquitting the accused, despite the complainant

providing sufficient evidence to prove that the accused had

obtained a legally recoverable debt and had issued the

dishonoured cheque for the discharge of the said debt, the Trial

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Court failed to consider the same and acquitted the accused.

He further contended that though the complainant is an

agriculturist, he proved his lending capacity by producing

Exs.P.8 to P.12 i.e., RTC extracts, which shows that the

complainant had sufficient source of income to lend the amount

in question. Further, according to the learned counsel, the

accused failed to rebut the initial presumption arising under

Sections 118 and 139 of the N.I. Act, by placing probable

defence. These aspects are not considered by the learned Trial

Court, hence, the impugned judgment is liable to be set aside.

Accordingly, he prays to allow the appeal by convicting the

accused for the offence punishable under Section 138 of the

N.I. Act.

8. Refuting the submissions made by the learned

counsel for the appellant, the learned counsel for the

respondent/accused contended that the Trial Court, after

meticulously examining the entire evidence on record, has

passed a well-reasoned judgment which does not call for any

interference at the hands of this Court. He contended that the

complainant totally failed to discharge the initial burden by

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placing cogent evidence and records. According to him, the

amount mentioned in the cheque-Ex.P1 itself creates a doubt in

respect of the alleged transaction. Further, the complainant

being an agriculturist, totally failed to prove his lending

capacity. Per contra, the accused placed probable defence that

the cheque in-question was issued to one of his friends viz.,

Ahmedraza Sirkaji and the same was misused by the

complainant for unlawful gain. Accordingly, he prays to dismiss

the appeal.

9. Having heard the learned counsel for the respective

parties and on perusal of the evidence and the documents

available on record, the sole point that surfaces 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 the records, the cheque

in question i.e., Ex.P.1, and the signature of the accused on it

is not seriously disputed by the accused. However, it is the

specific defence of the accused that the cheque in-question was

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issued to one Ahmedraza Sirkaji, a representative of

unemployed muslim youth of Hubballi, for getting employment

in Gulf countries for the needy people by some of the

organization, the complainant was ready to stood as a surety

for them. As such, the complainant issued a cheque in question

to the said Ahmedraza Sirkaji. Later, the said cheque-Ex.P.1

was misused by Ahmedraza Sirkaji by presenting the same in

the name of the complainant for unlawful gain. The said

defence was taken by the complainant in the reply notice and

also in his evidence.

11. It is the specific stand of the complainant that the

cheque in-question was issued for repayment of the hand loan

which was obtained by the accused in the year 2012. Though

the complainant placed Exs.P.8 to P.12-RTC extracts to

substantiate that he had the lending capacity to advance a

hand loan of Rs.9,64,000/-, however, in his cross-examination,

he has specifically admitted that his annual income was Rs.3 to

4 Lakh from his agricultural source. The said income not only

belongs to him but also to his mother and brother. Further, in

the cross-examination, he has admitted that, out of

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Rs.9,64,000/-, a sum of Rs.5,00,000/- was paid by him in cash

which was the savings from his income and for the remaining

amount, he obtained hand loan from his friends and relatives

and paid the same to the accused. However, he failed to

examine any of his friends or relatives for having obtained hand

loan. As rightly contended by the learned counsel for the

respondent/accused, there is no explanation is forthcoming in

respect of the amount in question i.e, Rs.9,64,000/-. The

complainant failed to explain under what circumstance the odd

amount of Rs.9,64,000/- was lent to the accused. On an over

all examination of the entire evidence on record, the defence

put forth by the accused is a probable one.

12. No doubt, the initial presumption arising under

Sections 118 and 139 of the N.I. Act favours the complainant,

but as per the settled position of law by the Hon'ble Apex Court

and this Court, the said initial presumption can be rebutted by

placing probable evidence. In the instant case, the accused

successfully rebutted the initial presumption by placing the

probable defence. In that view of the mater, I am of the

considered view that the judgment under this appeal does not

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call for any interference. Accordingly, I answer the point raised

above in the affirmative and proceed to pass the following:

ORDER

The appeal is dismissed.

SD/-

(RAJESH RAI K) JUDGE

VB,KMS CT:PA