Karnataka High Court

Sri B S Bhasakar vs Smt Ramya on 11 March, 2025

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                                NC: 2025:KHC:10240
                                                             CRL.A No. 683 of 2015




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 11TH DAY OF MARCH 2025

                                                   BEFORE

                       THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

                                  CRIMINAL APPEAL NO. 683 OF 2015

                      BETWEEN:

                      SRI B. S. BHASKAR
                      S/O. SRI B. V. SUBBA RAO,
                      AGED 67 YEARS,
                      RESIDING AT NO.107,
                      2ND CROSS, 11TH MAIN ROAD,
                      3RD PHASE, GIRINAGAR,
                      BANGALORE - 560 085.
                                                                       ...APPELLANT
                      (BY SRI PARAMESWARAPPA C., ADVOCATE)

                      AND:

                      SMT. RAMYA W/O. MR. NAVEEN,
                      AGED: 37 YEARS,
                      RESIDING AT NO.30,
                      3RD CROSS, 1ST MAIN ROAD,
                      ISRO LAYOUT, BANGALORE - 560 078.
Digitally signed by                                                  ...RESPONDENT
ASHPAK KASHIMSA
MALAGALADINNI         (BY SRI ARUN K. S., ADVOCATE)
Location: High
Court of Karnataka,
Dharwad Bench,
Dharwad
                           THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 OF THE
                      CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO CALL FOR THE
                      RECORDS IN C.C.NO.12049/2013 ON THE FILE OF THE LEARNED
                      XVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT
                      BANGALORE AND SET ASIDE THE JUDGMENT DATED 10.03.2015
                      PASSED IN C.C.12049/2013 ON THE FILE XVIII A.C.M.M AT
                      BANGALORE AND TO PUNISH THE RESPONDENT IN ACCORDANCE
                      WITH LAW AND TO COMPENSATE THE APPELLANT SUITABLY, IN THE
                      INTEREST OF JUSTICE AND EQUITY.

                           THIS APPEAL, COMING ON FOR FINAL HEARING, THROUGH
                      VIDEO CONFERENCING HEARING AT DHARWAD BENCH, THIS DAY,
                      JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                           NC: 2025:KHC:10240
                                        CRL.A No. 683 of 2015




CORAM:    HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

                       ORAL JUDGMENT

This appeal is filed by the complainant praying to set

aside the judgment of acquittal dated 10.03.2015 passed

in C.C. No.12049/2013 by the learned XVIII Additional

Chief Metropolitan Magistrate, Bangalore, whereunder, the

respondent/accused has been acquitted of the offence

under Section 138 of the Negotiable Instruments Act

(hereinafter referred to as 'the NI Act', for short).

2. Facts in brief of the complainant's case are as

under:

The complainant and the accused are known to each

other for more than 4 years. That, the accused, for

repayment of loan borrowed from others, has demanded

for financial assistance from the complainant to an extent

of Rs.8,00,000/-. The complainant advanced hand loan of

Rs.4,00,000/- on 06.01.2013 and Rs.4,00,000/- on

05.02.2013 by cash. The complainant, in all advanced

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Rs.8,00,000/- to the accused. The accused issued a post

dated cheque in favour of the complainant for repayment

of said amount dated 07.02.2013 for Rs.8,00,000/- drawn

on ICICI bank, Whitefield Branch, Bangalore. The

complainant presented the said cheque for encashment

and the same came to be returned dishonoured with an

endorsement 'funds insufficient' under a bank memo dated

08.03.2013 and 03.05.2013. The complainant has got

issued a notice to the accused dated 20.05.2013 calling

upon the accused to pay the cheque amount. Though the

said notice had been duly served on the accused, the

accused did not pay the cheque amount and therefore, the

complainant filed a private complaint against the

respondent/accused for the offence under Section 138 of

NI Act. The learned Magistrate has taken cognizance and

registered C.C. No.12049/2013 against the

respondent/accused for an offence under Section 138 of NI

Act. The plea of the accused has been recorded. The

complainant in order to prove his case, has examined

himself as PW.1 and got marked Ex.P-1 to P-14. The

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statement of the accused has been recorded under Section

313 of the Code of Criminal Procedure. The

respondent/accused examined herself as DW-1 and no

documents are marked on defense side. The learned

Magistrate after hearing the arguments on both side, has

passed the impugned judgment of acquittal. The said

judgment of acquittal has been challenged by the

complainant in this appeal.

3. Heard the learned counsel for the appellant and

the learned counsel for the respondent.

4. Learned counsel for the appellant would

contend that the respondent has admitted her signature

on the cheque-Ex.P-1. As the respondent has admitted

her signature on the cheque, a presumption has to be

drawn under Section 139 of NI Act that the cheque is

issued for discharge of the debt. The respondent/accused

has not rebutted the said presumption. The respondent

has taken up a defense that, for the loan borrowed by her

father-in-law, she has issued the cheque as a security. He

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submits that the said defense has not been established by

the respondent/accused. Without considering these

aspects, the learned Magistrate has erred in acquitting the

respondent/accused. With this, he prayed to allow the

appeal and convict the respondent/accused for the offence

under Section 138 of NI Act.

5. Learned counsel for the respondent would

contend that, the cheque Ex.P-1 has been issued as a

security to the loan availed by father-in-law of the

respondent/accused. The said defense has been

established by the respondent/accused. The learned

Magistrate, considering the said aspect and holding that

the appellant/complainant has no capacity to lend huge

amount of Rs.8,00,000/-, has rightly acquitted the

accused of the offence under Section 138 of NI Act. With

this, he prayed for dismissal of the appeal.

6. Having heard the learned counsel, the Court

has perused the impugned judgment and the trial Court

records.

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7. Considering the grounds urged, the following

point arises for consideration:

Whether the learned Magistrate has erred in acquitting the respondent/accused of the offence under Section 138 of NI Act?

8. My answer to the above said point is in the

affirmative for the following reasons:

9. It is the specific case of the

appellant/complainant that the respondent has borrowed

Rs.4,00,000/- on 06.01.2013 and Rs.4,00,000/- on

05.02.2013 by way of cash and in order to repay the

same, she has issued a cheque-Ex.P-1 dated 07.02.2013

for Rs.8,00,000/-. As the respondent/accused has

admitted her signature on cheque-Ex.P-1, presumption

under Section 139 of NI Act that, the cheque is issued for

discharge of the debt has to be drawn. The said

presumption is a rebuttable presumption. The standard of

proof for rebutting the said presumption is preponderance

of probabilities.

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10. The respondent/accused has taken up a

defense that, the cheque-Ex.P-1 has been issued as a

security to the loan availed by her father-in-law. The said

aspect which is put to PW.1 in his cross-examination has

been denied by him. In order to establish the said

defense, the respondent/accused has not examined her

father-in-law. The respondent/accused has admitted her

acquaintance with the appellant and his wife. The

respondent/accused has also admitted in the cross-

examination that her husband suffered loss in his business

in the year 2012 and closed his shop. It is the case of the

complainant that, the respondent/accused has borrowed

the amount in order to repay the loan availed by her from

others. That, the said aspect of her husband sustaining

loss and closing his business, itself, indicates that she was

in need of money. It is suggested to PW.1 in his cross-

examination that, he has received interest from the

accused at the rate of 6% per annum and the said

suggestion has been denied by him. It is also suggested

to PW.1 in his cross-examination that, he has received

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higher interest from the accused, he has denied the same.

The said suggestions indicate that the respondent/accused

has availed loan and paid interest to the complainant.

Considering all these aspects, the respondent/accused has

failed to rebut the said presumption drawn under Section

139 of NI Act. As the said presumption is not rebutted,

there is no question of considering the capacity of the

appellant/complainant to lend the money. Without

considering all these aspects, the learned Magistrate has

erred in acquitting the respondent/accused for the offence

under Section 138 of NI Act. The appellant/complainant

has satisfied the other ingredients of the offence under

Section 138 of NI Act i.e., statutory notice has been issued

within the statutory period from the date of dishonour and

the compliant has been filed within the statutory period

from the date of cause of action. Considering the same,

the appellant/complainant has proved the commission of

the offence by the respondent/accused under Section 138

of NI Act.

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11. In the result, the following:

ORDER

The appeal is allowed. The impugned judgment of

acquittal dated 10.03.2015 in C.C. No.12049/2013 by the

learned XVIII Additional Chief Metropolitan Magistrate,

Bangalore, is set aside. The respondent/accused is

convicted for the offence under Section 138 of NI Act and

is sentenced to fine of Rs.8,10,000/-, in default, to

undergo simple imprisonment for three months. Out of

the fine amount, Rs.8,00,000/- is ordered to be paid as

compensation to the appellant/complainant. The

respondent/accused shall deposit the fine amount within

two months from this day.