IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 1^ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL APPEAL NO. 200229 OF 2022 (378(Cr.PC)/419(BNSS)

BETWEEN:

AYESHA BANU D/O SHAYAMIDAPASHA AGED ABOUT: 28 YEARS, OCCU: HOUSE HOLD, R/O BADEBESA, SINDHANUR TOWN, TQ: SINDHANUR, DIST: RAICHUR – 584128.

…APPELLANT (BY SRI ARUNKUMAR AMARGUNDAPPA, ADV.)

AND:

SRI ANIL KUMAR S/O AMARAPPA KAMANUR AGED ABOUT: 32 YEARS, OCCU: MECHANIC, R/O SHOP NAME: AMARA CAR CARE, OPP: RANI VOINCE, GANGAVATHI ROAD, TQ: SINDHANUR, DIST: RAICHUR – 584128.

…RESPONDENT (BY MS. RANJITA ALAGAWADI, ADV.)

THIS CRIMINAL APPEAL IS FILED U/S. 378 (4) OF CR.P.C, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE ORDER OF ACQUITTAL OF ACCUSED/RESPONDENT DATED 07.06.2022 PASSED IN C.C.NO.344/2018, BY THE II ADDL. CIVIL JUDGE AND JMFC AT SINDHANUR FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND PUNISH THE ACCUSED AS PER PROVISIONS OF SECTION 138 OF N.I. ACT.C) TO PASS SUCH ORDER OR ORDERS THAT, THIS HON’BLE COURT THINKS FIT TO PASS.

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

CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL JUDGMENT (PER: HON'BLE MR JUSTICE RAJESH RAI K)

This appeal directed against the judgment dated

07.06.2022 passed in C.C.No.344/2018 by the II Additional Civil Judge and JMFC, at Sindanur, whereby, the learned Judge acquitted the respondent/accused for the offence punishable under Section 138 of Negotiable Act, (for short ‘NI Act’).

2. The parties are referred to as per their ranking before the trial Court.

3. The facts apposite for consideration as borne out from the pleadings are as under:

The accused is the friend of father of the complainant, as such he came into contact with the complainant, the accused was in need of money to meet out his family and business necessities and approached the complainant and requested her to lend the hand loan of Rs.6,10,000/ and agreed to return the same within two months. Accordingly the complainant lent the hand loan of a sum of Rs.6,10,000/- to the accused on 04.06.2017. After lapse of two months, the accused failed to repay the hand loan, hence the complainant approached the accused and requested him to repay the same, hence the accused issued a cheque dated 04.08.2017 bearing No.239016 of Corporation Bank branch Sindhanur for an amount of Rs.6,10,000/- towards repayment of loan borrowed by him. Accordingly, the complainant presented the cheque for encashment through her banker at State bank of Hyderabad (SBI) Branch at Sindhanur on 31.10.2017 and the same was returned unpaid to the complainant on 02.11.2017 with an endorsement "FUNDS INSUFFICIENT". Thereafter, on 10.11.2017, the complainant got issued the demand notice. The legal notice was duly served upon accused on 14.11.2017. In spite of service of legal notice, the accused neither replied to the same nor complied with the demand made in the notice. Hence, the complainant filed the complaint before the learned Magistrate under Section 200 of Cr.P.C for the offence punishable under Section 138 of N.I. Act.

4. To prove the case of the complainant before the trial Court, she himself examined as P.W.1 and got marked 5 documents. However, accused himself examined as DW.1 and got marked 6 documents.

5. After assessment of oral and documentary evidence, the trial Court acquitted the accused for the offence punishable under Section 138 of the NI Act.

6. I have heard the learned counsel for the appellant so also the learned counsel for respondent and carefully perused the entire evidence on record.

7. On perusal of oral and documentary evidence, the issuance of cheque in question i.e., Ex.P1 and the signature of the accused on it is not disputed by the accused. However, the lending of hand loan by the complainant on 04.06.2017, the lending/financial capacity of the complainant so also the reason behind issuance of the cheque is seriously contested by the accused. According to the complainant, t