IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 11^TH DAY OF DECEMBER 2020

BEFORE

THE HON’BLE MR.JUSTICE RAVI V.HOSMANI

CRIMINAL APPEAL No.100180 OF 2015

BETWEEN :

G.MALLIKARJUNA S/O. SUDUGADEPPA

AGE : 43 YEARS, OCC : AGRICULTURE &

REAL ESTATE BUSINESS,

R/O.13/35 WARD, UKKADAKERE,

HOSAPETE, DIST.:BALLARI.

….APPELLANT

(BY SRI SHRIHARSH A.NEELOPANT, ADV.)

AND :

SMT. A.BHAVANI PRAVALLIKA,

W/O.ABHINESH SHETTY,

AGE : MAJOR, OCC : PARTNER &

AUTHORIZED SIGNATORY OF

SRI SAI JYOTHI TELE SERVICE,

R/O.OPP. DR.BYHAGAVATH SKIN HOSPITAL,

SHANTI NAGAR, HOSAPETE,

DIST.:BALLARI.

….RESPONDENT

(BY SRI VEERESH R.BUDIHAL, ADV.)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION

378(4) OF CR.P.C. WITH A PRAYER TO ALLOW THE

APPEAL AND SET ASIDE THE IMPUGNED JUDGMENT

2

DATED 21.08.2015 PASSED BY THE ADDITIONAL CIVIL

JUDGE AND J.M.F.C., HOSAPETE IN C.C.NO.2566/2012

IN

THE

ENDS

OF

JUSTICE

AND

CONVICT

THE

ACCUSED/RESPONDENT FOR THE OFFENCE PUNISHABLE

UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS

ACT, WITH WHICH HE HAS BEEN CHARGED IN THE

INTEREST OF JUSTICE.

THIS APPEAL COMING ON FOR HEARING, THIS

DAY, THE COURT, DELIVERED THE FOLLOWING:

JUDGMENT

Challenging

the

judgment

dated

21.08.2015

passed by the Addl. Civil Judge and JMFC., Hospet in

C.C.No.2566/2012,

acquitting

the

accused

for

the

offences punishable under Section 138 of Negotiable

Instruments Act, 1881 (for short “N.I.Act”).

2.

Brief facts giving rise to this appeal are as

under:

A complaint came to be filed under Section 200 of

Code of Criminal Procedure (for short ”Cr.P.C.”) 1973,

came to be filed on 10.08.2012 stating that the

complainant and accused are known to each other and

as such during July-2012, the accused borrowed a sum

3

of

Rs.9,00,000/-

from

the

complainant.

Towards

repayment of the same, cheque dated 12.07.2012

bearing No.000446 drawn on Axis Bank Limited, Hospet

was

issued

to

the

complainant.

The

same

was

presented

for

payment

on

12.07.2012.

But

was

returned unpaid with endorsement ”Funds insufficient”,

on

13.07.2012.

Thereafter,

complainant

issued

statutory notice to the accused by RPAD on 14.07.2012.

After receiving it, accused sent reply denying the

transaction.

No

payment

was

made.

Hence,

complainant filed complaint.

3.

After

recording

sworn

statement

of

complainant and taking cognizance, trial Court issued

summons to accused. On appearance, accused denied

charges and sought trial. The complainant got himself

examined as PW1 and marked Exhibits P1 to P4.

Thereafter, the incriminating material was explained to

accused, which he denied. His statement under Section

313 of Cr.P.C. was recorded. Based on the above

4

material, trial Court framed following points for it’s

consideration.

“1)

Whether

the

complainant

proves

beyond

all

reasonable

doubt

that

the

accused

has

issued

cheque

bearing

No.000446 a sum of Rs.9,00,000/- Dated

12.07.2012 drawn on Axis Bank, Hospet in

favour of the complainant, the same is

returned

with

endorsement

“Funds

insufficient”,

thereby

accused

has

commi9tted

an

offence

punishable

U/Sec.138 of Negotiable Instruments Act?

2) What order or sentence?”

4.

After answering point No.1 in negative, trial

Court

passed

the

impugned

order

of

acquittal.

Challenging acquittal, complainant is in appeal.

5. Learned counsel Sri Shriharsh A.Neelopant,

submitted that complainant had filed complaint making

clear assertions constituting the ingredients of offence

under Section 138 of N.I. Act. Supporting documents

were also produced viz., the cheque as Ex.P1, bank

endorsement as Ex.P2, statutory notice as Ex.P3 and

postal acknowledgment of service on accused as Ex.P4.

5

Based on the same, all necessary foundational facts for

prosecution

under

Section

138

were

established.

However, trial Court on erroneous and perverse finding

passed im