IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO. 1735 OF 2018 BETWEEN:

SRI. NOORUDDEEN S/O LATE P.C.LATEEF AGED ABOUT 41 YEARS R/AT NO.3, 93/2, 1^ST MAIN 15^TH CROSS, K.T.J.NAGARA DAVANAGERE-577 002 …APPELLANT (BY SMT. THANIMA BEKAL, ADVOCATE FOR SRI. HAREESH BHANDARY T, ADVOCATE)

AND:

SRI. HAFIZULLA S/O SHEK SAHEB SAB AGED ABOUT 47 YEARS R/AT DOOR NO.1172/1 Digitally signed by 2^ND MAIN, 5^TH CROSS HEMAVATHY GANGABYRAPPA K.T.J.NAGARA Location: HIGH DAVANAGERE-577 002 COURT OF KARNATAKA …RESPONDENT (BY SRI. U. PANDURANGA NAYAK, ADVOCATE)

THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 04.08.2018 PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS, II COURT, DAVANAGERE IN C.C.NO.2456/2015, ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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

CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

ORAL JUDGMENT

This appeal is filed by the complainant challenging the judgment of acquittal dated 04.08.2018 passed in C.C.No.2456/2015 by the Judicial Magistrate First Class, II Court, Davanagere, whereunder the respondent - accused has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' for brevity).

2. The case of the appellant - complainant in brief, is as under:

The appellant –complainant and respondent -

accused are known to each other from several years. The respondent –accused had approached the appellant – complainant for financial assistance for marriage of his sister and for his urgent family necessities on 12.09.2012. The appellant –complainant has advanced hand loan of Rs.1,70,000/- to the respondent –accused on 12.09.2012 and the respondent –accused has agreed to repay the said amount with interest at the rate of 2% within 06 months. The respondent –accused did not repay the amount borrowed. On 25.06.2013, the respondent –accused has issued cheque bearing No.595469 drawn on Karur Vysya Bank Ltd., Davanagere for Rs.1,70,000/- for repayment of the said hand loan. The appellant –complainant presented the said cheque for encashment and the said cheque was retuned with an endorsement stating “Funds Insufficient” in the account of the respondent -accused. The appellant - complainant got issued legal notice on 03.07.2013. Inspite of service of legal notice the respondent –accused did not pay the cheque amount. Therefore, the complainant has filed a private complaint against the respondent - accused for offence punishable under Section

138 of the NI Act.

3. Learned Magistrate has taken cognizance against the respondent –accused and registered case in C.C.No.2456/2015 for offence punishable under Section 138 of the N.I Act. The plea of respondent - accused has been recorded. The complainant in order to prove his case has examined himself as P.W.1 and got marked documents as Ex.P1 to P5. The appellant –complainant has also examined one witness as P.W.2. The statement of respondent -accused came to be recorded under Section 313 of Cr.P.C. Learned Magistrate after hearing arguments on both sides has formulated points for consideration and passed impugned judgment of acquittal. The said judgment of acquittal has been challenged by the complainant in this appeal.

4. Heard learned counsel for the appellant and learned counsel for the respondent.

5. Learned counsel for the appellant would contend that the respondent –accused has admitted his signature on Ex.P1 –cheque and therefore, the presumption under Section 139 of the N.I Act has to be drawn. The said presumption has not been rebutted by the respondent –accused. The respondent –accused has not issued any reply to the legal notice got issued by the appellant –complainant and not filed any police complaint against the appellant –complainant for misusing of