Karnataka High Court
Vijayalxmi Batageri vs Abdul Jabbar on 23 September, 2025
-1-
NC: 2025:KHC-K:5772
CRL.A No. 200260 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO.200260 OF 2023
(378(Cr.PC)/419(BNSS))
BETWEEN:
SMT. VIJAYALAXMI BADAGER
W/O GANGADHAR,
AGED ABOUT 53 YEARS,
OCC: HOUSEHOLD, R/O H.NO.E-14410,
14TH CROSS, TARFILE ROAD,
NEAR MALLIKARJUN KHARGE SCHOOL,
KALABURAGI-585 102.
...APPELLANT
(BY SRI SANTOSH KUMAR MARADI, ADVOCATE)
Digitally signed AND:
by
LUCYGRACE
ABDUL JABBAR S/O ABDUL KHADARSHAIKH,
Location: HIGH
COURT OF AGE: MAJOR, OCC: GOVERNMENT SERVANT,
KARNATAKA R/O RMS POST OFFICE, MTS,
STATION BAZAAR, KALABURAGI-585 102.
...RESPONDENT
(RESPONDENT - SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(4) OF CR.P.C. (OLD), SECTION 419 OF BNSS (NEW), PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT OF ACQUITTAL
DATED 29.05.2023 PASSED BY THE COURT OF PRL. CIVIL
JUDGE AND JMFC, KALABURAGI IN C.C.NO.12665/2022,
ACQUITTING THE RESPONDENT FOR THE OFFENCE
-2-
NC: 2025:KHC-K:5772
CRL.A No. 200260 of 2023
HC-KAR
PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND TO
PUNISH THE ACCUSED/RESPONDENT FOR COMMITTING
OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT, BY
DIRECTING TO PAY DOUBLE THE CHEQUE AMOUNT WITH
COST.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE M G UMA)
The appellant being the complainant in
C.C.No.12665/2022 on the file of the learned Principal Civil
Judge and JMFC, Kalaburagi is impugning the judgment
dated 29.05.2023, dismissing the complaint and acquitting
the respondent/accused for the offence punishable under
Section 138 of the Negotiable Instruments Act (for short
'N.I. Act').
2. The case of the complainant in brief is that, the
accused being a Government servant working in the Post
Office, requested the complainant for hand loan of
Rs.1,40,000/-. The accused assured to repay the same
within 12 months. Accordingly, the complainant had lent
NC: 2025:KHC-K:5772
HC-KAR
Rs.1,40,000/- to the accused. When the complainant
insisted for repayment of the loan amount, the accused
issued the cheque as per Ex.P1 on 16.02.2022 for
Rs.1,40,000/-. When the cheque was presented for
encashment, the same was dishonoured, as there was
insufficient fund in the account of the accused. Legal
notice was issued by the complainant to the accused,
informing about dishonour of the cheque and calling upon
him to repay the cheque amount. Inspite of service of
notice, the accused has not repaid the cheque amount and
thereby, committed the offence punishable under Section
138 of the N.I. Act. Accordingly, the complainant filed the
private complaint in P.C.No.281/2022 and requested the
Trial Court to take cognizance and initiate legal action
against the accused.
3. The Trial Court took cognizance of the offence
and registered C.C.No.12665/2022. The accused appeared
before the Trial Court, pleaded not guilty and claimed to
be tried. The complainant examined herself as PW.1 and
NC: 2025:KHC-K:5772
HC-KAR
got marked Exs.P1 to P6 in support of her contention. The
accused denied all the incriminating materials available on
record and examined himself as DW.1.
4. The Trial Court, after taking into consideration
all these materials on record, came to the conclusion that,
the complainant has not proved the lending of the amount
and existence of legally enforceable debt. Accordingly,
passed the impugned judgment, acquitting the accused.
Being aggrieved by the same, the complainant is before
this Court.
5. Heard Sri Santosh Kumar Maradi, learned
counsel for the appellant. Respondent though served with
the notice has remained unrepresented. Perused the
materials on record.
6. In view of the submissions made by the learned
counsel for the appellant, the point that would arise for my
consideration is:
NC: 2025:KHC-K:5772
HC-KAR
"Whether the impugned judgment of
acquittal passed by the Trial Court suffers
from infirmities and calls for interference by
this Court?"
My answer to the above point is in the 'Affirmative'
for the following:
REASONS
7. It is the contention of the complainant that, the
accused being the Government servant working in the Post
Office has availed a loan of Rs.1,40,000/-. Towards
repayment of the same, he had issued the cheque-Ex.P1.
When the cheque was presented for encashment, the
same was dishonoured, as there was insufficient fund in
the account of the accused. Even though legal notice was
issued to the accused, the same was returned unserved as
'addressee not found'. However, accused has not repaid
the amount and thereby, he has committed the offence
punishable under Section 138 of the N.I. Act.
NC: 2025:KHC-K:5772
HC-KAR
8. To prove her contention, the complainant
examined herself as PW.1 and reiterated her contentions
as taken in the complaint and got marked Exs.P1 to P6.
Ex.P1 is the cheque dated 16.02.2022 for Rs.1,40,000/-,
Ex.P2 is the return memo issued by the Canara Bank
informing about dishonour of the cheque, Ex.P3 is the
copy of the legal notice, Ex.P4 is the postal receipt and
Ex.P5 is the postal envelope returned to the sender as
'addressee not found'. The complainant was cross-
examined by the learned counsel for the accused. During
cross-examination, the accused appears to have taken a
defence of total denial. Issuance of cheque and the
signature found on the cheque were denied. Availing of
loan was also denied. Other than that, no specific defence
was taken.
9. The accused stepped into the witness box and
deposed as DW.1 stating that, he never met the
complainant, nor borrowed any amount. He has not issued
the cheque in question with his signature. Interestingly,
NC: 2025:KHC-K:5772
HC-KAR
there is no reference to the cheque-Ex.P1 and no specific
defence was taken about the same. During cross-
examination, witness admitted that, he had not filed any
complaint against the complainant alleging filing of the
false complaint for the offence punishable under Section
138 of the N.I. Act.
10. It is pertinent to note that, even though the
accused examined himself, except denial of the
contentions taken by the complainant, there is no defence
by the accused. It is contended that, Ex.P1 was not issued
to the complainant by the accused. But, Ex.P1 is the
cheque where the name of the accused is printed and he
has signed the same. According to the complainant,
signature found on Ex.P1 is that of the accused. There is
no specific denial to this fact by the accused. Except
saying that, he has not issued the cheque in favour of the
complainant. The accused has not explained as to how
the cheque came into the possession of the complainant, if
at all he has not issued the same. On comparison, the
NC: 2025:KHC-K:5772
HC-KAR
signature found on Ex.P1 matches with the signature of
the accused as signed in the deposition, in the
vakalathnama, and also in the plea recorded by the Trial
Court. On perusal of Ex.P1, I do not find any reason to
reject the claim of the complainant that, the cheque-Ex.P1
belongs to the accused and it bears his signature. Prima
facie the complainant has shown that, the cheque belongs
to the accused and signed by him.
11. It is pertinent to note that, the complainant
filed an application under Section 91 of Cr.P.C. before the
Trial Court, praying to summon the Bank official to
produce required particulars about the cheque-Ex.P1, but
the said application was rejected by the Trial Court by
observing that, the burden is on the accused to rebut the
legal prosecution and therefore, the complainant need not
have to summon the Bank official, seeking such
particulars. However, later, the Trial Court came to the
conclusion that, the complainant has not proved her
financial capacity and lending of the amount.
NC: 2025:KHC-K:5772
HC-KAR
12. When the accused has not taken any specific
defence nor probablized the bald defence that the cheque
Ex.P-1 was never issued by him to the complainant, that
too when the Trial Court rejects the application filed by the
complainant under Section 91 of Cr.P.C., and further on
perusal of Ex.P-1 it prima facie discloses that, the cheque
belongs to the accused and it bears his signature, the
initial burden on the complainant gets discharged. The
presumption under Sections 118 and 139 of N.I. Act
arises. The burden shifts on the accused to rebut the legal
presumption. Mere denial of issuance of cheque will not
rebut the presumption. The legal presumption under
Section 139 of the N.I. Act includes existence of legally
enforceable debt. The presumption under Section 118 of
the N.I. Act raises presumption regarding the
consideration of date and time of acceptance of the
negotiable instrument. The accused has not rebutted the
legal presumptions. Under such circumstances, he is liable
for conviction.
- 10 -
NC: 2025:KHC-K:5772
HC-KAR
13. The legal notice Ex.P-3 is addressed to the
accused which is returned as the addressee not found.
The address of the accused mentioned in the legal notice-
Ex.P-3 and the envelop Ex.P-5 is the same as mentioned
in the private complaint. Under such circumstances, the
notice is deemed to have been served on the accused.
Under these circumstances, I am of the opinion that, the
complainant is successful in proving the guilt of the
accused beyond reasonable doubt and therefore, the
accused is liable for conviction.
14. I have gone through the impugned judgment of
acquittal passed by the Trial Court. It has proceeded to
acquit the accused solely on the ground that the accused
baldly denied issuance of the cheque Ex.P-1 and held that,
the complainant has not proved the lending of the amount
ignoring the settled position of law and the legal
presumption under Sections 118 and 139 of the N.I. Act.
Therefore, I am of the opinion that the impugned
- 11 -
NC: 2025:KHC-K:5772
HC-KAR
judgment of acquittal passed by the Trial Court is liable to
be set aside.
15. Heard learned counsel for the appellant
regarding sentence.
16. In view of the above, I answer the above point
in the 'affirmative' and proceed to pass the following:
ORDER
(i) The Criminal Appeal is allowed.
(ii) The impugned judgment dated 29.05.2023
passed in C.C.No.12665/2022 by the
Principal Civil Judge and JMFC at Kalaburagi
is set aside.
(iii) The respondent - accused is convicted for
the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881.
(iv) The respondent - accused is sentenced to
undergo simple imprisonment for a period
- 12 -
NC: 2025:KHC-K:5772
HC-KAR
of six months and to pay fine of
Rs.2,00,000/-, in default to pay fine, to
undergo further simple imprisonment for
two months.
(v) On payment of fine amount, an amount of
Rs.1,90,000/- to be paid to the complainant
as compensation.
Registry is directed to send back the Trial Court
records along with the copy of the judgment for
information and needful action i.e., for issuance of the
conviction warrant against the accused.
Sd/-
(M G UMA)
JUDGE
LG,SWK
CT-PK
