[Cites 6, Cited by 0]

Karnataka High Court

Smt Sridevi vs Shashi Kumar P on 23 March, 2026

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                  NC: 2026:KHC:16318
                                              CRL.A No. 2062 of 2022


            HC-KAR



              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 23RD DAY OF MARCH, 2026

                                    BEFORE
                      THE HON'BLE MR. JUSTICE M.G.S. KAMAL
                      CRIMINAL APPEAL NO. 2062 OF 2022 (A)


            BETWEEN:

            SMT. SRIDEVI
            W/O. MANJAPPA,
            AGED ABOUT 40 YEARS,
            R/AT NO 54, CHIMNEY HILL,
            NAVY LAYOUT,
            NEAR SAPTHAGIRI,
            ENGINEERING COLLEGE,
            BANGALORE - 560057
                                                        ...APPELLANT
            (BY SRI. MANJUNATH B. R., ADVOCATE)


            AND:
Digitally
signed by
SUMA B N    SHASHI KUMAR P.,
Location:
HIGH        S/O PRATHAP K. S.,
COURT OF    AGED 31 YEARS,
KARNATAKA
            R/AT NO 651,
            5TH CROSS,
            HEBBAL 1ST STAGE,
            MYSURU - 570016.

            ALSO R/AT NO. 175,
            NINGAIHANKERE,
            HEBBAL 1ST STAGE,
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                                       NC: 2026:KHC:16318
                                   CRL.A No. 2062 of 2022


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METAGALLI POST,
METAGALLI, MYSORE - 570016
                                            ...RESPONDENT



(BY SRI. MANJUNATH R., ADVOCATE FOR

SRI.GADILINGAPPA G M., ADVOCATE)



     THIS CRL.A FILED U/S 378(4) CR.PC PRAYING TO SET

ASIDE THE JUDGMENT PASSED BY VI ADDL.DISTRICT AND

SESSIONS   JUDGE,   BENGALURU      RURAL    DISTRICT   AT

BENGALURU IN CRL.A.NO.6/2021 DATED 30.08.2022 AND

CONFIRM THE JUDGMENT DATED 01.02.2021 PASSED BY IN

C.C.NO.1721/2018 ON THE FILE OF THE CHIEF JUDICIAL

MAGISTRATE, BENGALURU RURAL DISTRICT AT BENGALURU

FOR THE OFFENCE P/U/S 138 OF THE N.I ACT.


     THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:




CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL
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                                                   NC: 2026:KHC:16318
                                            CRL.A No. 2062 of 2022


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                       ORAL JUDGMENT

This appeal is against the judgment and order dated

30.08.2022 passed in Crl.A.No.6/2021 on the file of the VI

Additional District and Sessions Judge, Bengaluru Rural

District, Bengaluru (hereinafter be referred to as first

appellate Court), by which the first appellate Court while

allowing the appeal filed by the accused/respondent herein

under Section 374 (3) of Cr.P.C, to set aside the judgment

of conviction and sentence passed by trial Court in CC No.

1721/2018 dated 01.02.2021 and has consequently

acquitted the accused/respondent herein for the offence

punishable under Section 138 of the Negotiable

Instruments Act (hereinafter be referred to as 'NI Act' for

short).

2. Learned counsel for the appellant taking this

Court through the record submits that the

complainant/appellant herein had lent a sum of

Rs.5,00,000/- to the accused/respondent during the

month of May 2015. In repayment of part of the said

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amount, accused/respondent had issued a cheque bearing

No.396247 dated 15.12.2017 for a sum of Rs.2,00,000/-

drawn on Karnataka Bank, Vijayanagar 2nd stage, Mysuru.

When the said cheque was presented, the same was

returned with endorsement 'Funds Insufficient' on

18.12.2017. Thereafter, complainant/appellant herein had

issued a notice dated 26.12.2017 to the

accused/respondent herein. The accused/respondent had

not complied with the demand made, the

complainant/appellant had filed the complaint under

Section 138 in NI Act.

3. The trial Court on appreciation of evidence had

passed the judgment of conviction sentencing the

accused/respondent to pay fine of Rs.5,000/- and the

compensation of Rs.3,16,000/- to the

complainant/appellant.

4. Being aggrieved accused/respondent has

preferred an appeal under Section 374 (3) of Cr.P.C.

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5. Learned counsel for the appellant submits that

the first appellate Court is merely on the ground of non-

service of notice, has held that there was no cause of

action for filing of the complaint and has accordingly

allowed the appeal setting aside the judgment of

conviction passed by the trial Court and has consequently

acquitted the accused/respondent. He submits that the

appellant has now filed an application in I.A.No.2/2022

under Section 391(1) of Cr.P.C seeking production of

additional documents. That on return of the cheque, notice

was issued to the address namely No.651, 5th cross,

Hebbal I Stage, Mysuru, which is the last known address

of the accused. That the accused himself had given a

police complaint on 24.04.2018 against the

complainant/appellant herein. In a statement produced

along with the said application, the accused himself has

given the said address which has been further reiterated

by him. The accused had also earlier given another

complaint on 30.06.2017. Even in the said complaint, the

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accused had given the same address. Therefore, he

submits that at relevant point of time the address of the

accused was as mentioned in the notice and in the cause

title of the complaint. It is only to wriggle out of the

liability, the accused had contended that his address is

different from the one shown in the notice. He submits

that the said documents were not available with the

complainant during the trial and as the same were

misplaced and were traced now subsequently, he seeks for

an opportunity for leading evidence. Hence, prays for

allowing of the present appeal.

6. Learned counsel for the respondent on the

other hand submits that the accused/respondent had

vehemently contended and denied the service of notice.

The accused had taken up a stand of his address bearing

No.175, Ningaiahnakere, Hebbal, Kumbara Koppalu and he

had also produced the document in this regard. He

submits that complainant was not aware of the stand

taken by the accused and was not having produced the

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documents at relevant point of time, cannot seek to fill in

the lacuna at this belated stage. Hence, prays for dismissal

of the appeal and the application.

7. Heard and perused the records.

8. The only question that arises for consideration

is, "Whether the first appellate Court is justified in allowing

the appeal on the premise of non-service of notice

contemplated under Section 138 of NI Act?"

9. Envelope purportedly containing the notice

which was issued subsequent to return of cheque for

insufficient funds is marked as Ex.P5. The address of the

accused found on the said envelope containing notice is

"K.P.Shashikumar S/o Prathap, #651, 5th Cross, Hebbal 1st

Stage, Mysuru". In the cross-examination of PW.1, specific

denial is made with regard to service of notice. The

suggestion made and the answer to the same are as

under:

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"ಆ ೋ ಾನು ಕಳ ೊಟ .3 ೊ ೕ ನು ಪ ೆದು ೊಂ ಾ ೆ.

ಾನು ಕಳ ೊಟ .3 ಅ ೋ ೆ ತಲು ಲ# ಎಂದ ೆ ಸ&ಯಲ#. .5 ರ )ೕ*ೆ +,ಾಸ ಆ ೋ ಯ +,ಾಸ ಅಲ# ಎಂದ ೆ ಸುಳ -. ಆ ೋ +,ಾಸ ಮ ೆ ನಂ.175, ಂಗಯ0ನ ೆ ೆ, 1ೆ2ಾ3ಳ 1 ೇ ಹಂತ, )ೖಸೂರು ಎಂದ ೆ ಸ&ಯಲ#."

10. In furtherance to the aforesaid suggestion in

the cross-examination, the accused/respondent had

entered the witness box, lead his evidence and has

produced documents in Ex.D1-Aadhar card, Ex.D2-Driving

licence, Ex.D3-election identity card, Ex.D4-pan card and

Ex.D5-copy of complaint given by the accused. The

address of accused shown in the aforesaid three

documents is "No.175, Ningaiahnakere, Hebbal 1st stage,

Metagalli Post, Mysore, Karnataka-570016."

11. Interestingly, during the cross-examination of

accused, the complainant has suggested with regard to

accused having filed a complaint before the Metagalli

Police Station and confronted him with the copy of the said

complaint which is marked as Ex.D5. Even the said

complaint bears the address of the accused as

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"Shashikumar S/o Prathap, 27 years, D175,

Ningaiahnakere, Hebbal, Kumbarakoppalu, Mysore".

12. Thus, according to the documents furnished by

the accused at Ex.D1 to Ex.D3, as well as the document

confronted by the complainant as per Ex.D5, the address

of the accused is No.175 Ningaiahnakere,

Kumbarakoppalu, Metagalli Post, Mysore, Karnataka and

not No.651, 5th cross, Hebbal 1st Stage, Mysore.

13. Thus, the specific defence set up by the

accused/respondent and the evidence led by him in this

regard by producing the documentary evidence indicate

that the address to which the notice at Ex.P3 (Envelope

Ex.P5) was different from the address which is proved by

the accused. Therefore, it was incumbent upon the

complainant/appellant herein to have rebutted the said

evidence by leading acceptable and cogent evidence.

14. Complainant/appellant does not seem to have

taken any step in this regard before the trial Court. Even

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in the appeal filed by the accused/respondent the specific

ground urged in the appeal is non-service of notice. No

efforts seem to have been made by the

complainant/appellant herein to produce such documents

before the first appellate Court either.

15. However, along with the present appeal, the

complainant has filed an application under Section 391(1)

of Cr.P.C as noted above seeking production of additional

document. Paragraph No.5 of the affidavit accompanying

the said application reads as under:

"5. I state that I could not produce the aforesaid letter and police complaint documents before the trial Court as I could not trace them and hand over the same to my counsel to produce the same before the trial Court as the said documents were misplaced at residence and recently during October 2022, the said documents were traced at my residence and as such I could not find the same before to passing of the judgment by the trial Court. Hence, this application."

16. Settled principle of law is that production of

document though permissible, the exercise of such power

has to be cautious and with due care, it cannot be a

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matter of routine. The Apex Court in the case of Ajitsinh

Chehuji Rathod vs. State of Gujarat & Anr. reported in

(2024) 1 S.C.R. 1083 at paragraph No.9 has held as

under:

"9. At the outset, we may note that the law is well-settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391 CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non-recording of such evidence may lead to failure of justice."

17. The facts narrated above and the reasons

assigned at paragraph No.5 of the application noted, do

not provide the ground for allowing the said application,

inasmuch as it is not the case of the complainant/appellant

that she did not have these documents during the trial and

even at the time of appeal. A cryptic statement of said

documents having been lost and found later cannot be the

ground to fill in the lacuna. Even if the said documents

were lost, the said documents according to the

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