IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 24^TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY CRIMINAL APPEAL NO.200016 OF 2024 (378(Cr.PC)/419(BNSS))

BETWEEN:

M/S SUVARNA JYOTI FINANCE CORPORATION (R)

THROUGH ITS PARTNER SRI SHARNABASAPPA S/O REVAPPA CHALKE, AGE: 54 YEARS, OCC: BUSINESS AND MANAGING PARTNER, IN THE ABOVE FINANCE, R/O. SUVARNA TOWER, III^RD FLOOR, 7-1214/B/1, MAHALAXMI LAYOUT, HUMNABAD ROAD, KALABURAGI-585101.

…APPELLANT (BY SRI SHARANABASAPPA K. BABSHETTY, ADVOCATE)

AND:

SRI MUKESH S/O VIJAYKUMAR, AGE: 40 YEARS, R/O. H.NO. 6-676/A, NEAR GULZAR SCHOOL, PUTANI GALLI, RANGEEN MASJID, KALABURAGI-585101.

…RESPONDENT (BY SRI SYED FAYAZUDDIN, ADVOCATE)

THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGEMENT AND ORDER DATED 06.12.2023 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC AT KALABURAGI IN C C NO.4826/2018 AND CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCE U/SEC 138 OF N.I ACT.

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

CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)

This appeal under Section 378(4) of Cr.P.C., is filed by the appellant/complainant assailing the Judgment and order of acquittal dated 06.12.2023 passed by the I Additional Civil Judge and JMFC Court, at Kalaburagi, in C.C.No.4826/2018.

2. Heard the learned counsel for the appellant.

The respondent who is served in the matter, has remained un-represented before this Court.

3. The complainant had initiated proceedings against the respondent for the offence punishable under Section 138 of Negotiable Instructions Act, 1881, (for short ‘N.I.Act’) before the trial Court in C.C.No.4826/2018. It is the specific case of the complainant that the respondent had borrowed a sum of Rs.5,00,000/- from the complainant finance company during the year 2017 and towards repayment of the borrowed amount, he had issued a cheque bearing No.045536, dated 24.04.2018 for a sum of Rs.5,00,000/- drawn on Axis Bank, Super Market Branch, Kalaburagi. The said cheque on presentation to the Bank, was dishonoured with an endorsement as ‘signature differs’. Thereafter, the complainant had got issued legal notice to the respondent and since in spite of service of legal notice, the respondent had failed to pay the amount covered under the cheque in question, the complainant had initiated proceedings against the respondent for the offence punishable under Section 138 of N.I.Act.

4. During the course of trial, in support of its case, the complainant had examined its partner as P.W.1 and Manager of the Bank as P.W.2 and 12 documents were got marked as Ex.P.1 to Ex.P.12.

5. In support of his defence, neither any evidence was led nor any documents were marked by the respondent. The trial Court by the impugned Judgment and order, acquitted the respondent for the offence punishable under Section 138 of N.I.Act, and aggrieved by the same, the complainant is before this Court.

6. Learned counsel for the complainant submits that, the transaction between the parties has been proved by producing necessary documentary evidence before the trial Court. The issuance of cheque in question is not in dispute. The presumption that arose against the respondent has not been properly rebutted, therefore, the trial Court ought to have convicted him for the alleged offence. He submits that, deliberately the respondent has affixed a wrong signature on the cheque in question with an intention to cheat the complainant finance company.

Accordingly, he prays to allow the appeal.

7. Before the trial Court, the partner of the complainant-finance company is examined as P.W.1 and Manager of the Bank who has issued the cheque return memo at Ex.P.4 is examined as P.W.2. Ex.P.1 is the cheque in question. Ex.P.2 and Ex.P.3 are the loan application and receipt of the loan sanctioned. Ex.P.4 is the cheque return memo. Ex.P.5 is the legal notice issued on behalf of the co