J U D G M E N T

AUGUSTINE GEORGE MASIH, J.

1. Leave granted.

2. The instant appeal was originally preferred as a petition before this Court, which is moved against the impugned Judgment dated 03.03.2023 in Criminal Appeal No. 200139 of 2019 by the High Court of Karnataka at Kalaburagi whereby the learned Single Judge affirmed the acquittal of the Respondent in Complaint Case No. 468 of 2014 moved for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 Signature Not Verified Digitally signed by ASHISH KONDLE D 1 R6a e:t a4e s0:

o :2 1 n0 1 :2 I4 S. T08.07 (hereinafter referred to as “NI Act 1881”).

3. The factual backdrop giving rise to the present challenge is that the Appellant is the original complainant who claims to know the sole Respondent for the last six years and that he had borrowed INR 2,00,000/- (Rupees Two Lakhs only) from the Appellant on account of family necessities and accommodation. Against the said loan the Respondent issued a cheque bearing No. 015639 which was drawn on the Bank of India, as a guarantee against repayment. He was to repay the said loan amount within a period of six months thereof. An agreement to this effect was also signed between the parties.

4. However, since the Respondent failed to repay the loan despite repeated requests, the Appellant presented the concerned cheque for encashment on 22.10.2013, but nevertheless, as per the Bank Memo dated 24.10.2013, the cheque was dishonoured on account of “insufficient funds”.

5. Aggrieved from the said dishonour of cheque, a Demand Notice dated 31.10.2013 was sent by the Appellant to the Respondent, whereby, the Counsel on behalf of the Appellant alleged that the Respondent had intentionally cheated him and had not made any efforts to discharge his liability. Accordingly, the Respondent was said to have committed offences punishable under Section 138 of the NI Act 1881 and Section 420 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC 1860”).

6. Thereupon, the Respondent moved a Reply Notice dated

11.11.2013 whereby he claimed that the accusations made by the Appellant are false and bereft of pertinent details of the loan transaction, inter alia, the date and time of advancement of the said debt, which as claimed, was never advanced.

7. Unsatisfied with the response of the Respondent through the said Reply Notice, Appellant moved a Private Complaint No. 991 of 2013 under Section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC 1973”). The said complaint came to be registered as CC/468/2014 before Judicial Magistrate First Class at Gulbarga. As part of the proceedings before the Trial Court, the Appellant examined himself as PW-01, while the Respondent examined himself as DW-01. However, the latter did not mark any documents from his side. It was the Respondent’s plea that the concerned cheque was issued in favour of one Mr Mallikarjun in the year 2012 for security purposes, however, he did not return the same to the Respondent, and instead had left the village. While dealing with the said contention, the Trial Court observed that the Respondent had failed to explain as to how the cheque landed in the hands of the Appellant, and for what purpose was the cheque issued to Mr Mallikarjun.

8. It was also revealed as part of the statement during cross-examination of the Appellant that the cheque was originally, not given to the Appellant as security cheque. Instead, the same was allegedly given to the Appellant after the Respondent had thereby failed to repay his liability as existing against the Appellant after a period of six months. The Court further observed that the Agreement marked by the Appellant to assist his case does not include signature of the Respondent as against the terms of the agreement, but a signature is made by the Respondent on the stamp paper itself, and the same is not sustainable in the eyes of law. The Court also went on to scrutinize the Income Tax Returns of the App