IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 18^TH DAY OF MARCH 2021

BEFORE

THE HON’BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

CRIMINAL APPEAL NO.200074/2016

BETWEEN:

SMT. VIJAYALAXMI W/O MALLIKARJUN NAGUNDI

AGE: 39 YEARS OCC: HOUSEHOLD

R/O H.NO.79, CHAMUNDESHWARI NAGAR

JEWARGI ROAD, GULBARGA - 585 103.

... APPELLANT

(BY SRI. SACHIN M. MAHAJAN, ADVOCATE)

AND:

SHANKER KODLA S/O LATE KASHAPPA KODLA

AGE: 65 YEARS OCC: PRESIDENT OF

MAHATMA JYOTIBHA PULE PADAVI MAHAVIDYALAYA

R/O: SHAHABAZAR NAKA, GULBARGA - 585 103.

... RESPONDENT

(BY SRI. AVINASH UPLOANKAR, ADVOCATE

(ABSENT))

2

THIS

CRIMINAL

APPEAL

IS

FILED

UNDER

SECTION 378 (4) OF CR.P.C., PRAYING TO CALL FOR

THE RECORDS OF TRIAL COURT AND SET ASIDE THE

JUDGMENT

AND

ORDER

PASSED

IN

CRL.A.NO.18/2013 DATED 16.06.2014 BY THE IVTH

ADDL.

DISTRICT

AND

SESSIONS

JUDGE,

AT

GULBARGA, VIDE ANNEXURE-A, AND CONVICT THE

ACCUSED UNDER SECTION 138 OF N.I. ACT AND

CONFIRM THE ORDER PASSED IN C.C.NO.3811/2010

DATED 08.03.2013 BY THE IVTH ADDL. CIVIL JUDGE

AND JMFC GULBARGA AND DIRECT THE ACCUSED

TO PAY THE CHEQUE AMOUNT WITH INTEREST IN

THE ENDS OF JUSTICE AND EQUITY.

THIS

APPEAL

HAVING

BEEN

HEARD

AND

RESERVED FOR JUDGMENT THIS DAY, DELIVERED

THE FOLLOWING:

3

JUDGMENT

This appeal is filed by the complainant challenging

the judgment dated 16.06.2014 passed by the IV Addl.

District

and

Sessions

Judge,

Gulbarga

in

Crl.A.No.18/2013

whereunder

the

judgment

and

sentence

passed

in

C.C.No.3811/2010

dated

08.03.2013 by IV Addl. Civil Jude (Jr. Dn) and JMFC,

Gulbarga convicting the respondent – accused for the

offence punishable under Section 138 of the Negotiable

Instrument Act (for short ‘N.I. Act’), came to be set-aside

and respondent – accused was acquitted for the said

offence.

02.

The appellant was the complainant and

respondent was the accused before the Trial Court.

03.

The parties will be referred as per their

ranks before the Trial Court.

4

04.

Case of the complainant in brief is as

under;-

The complainant was working as a superintendent

in Mahatma Jyotibha Phule Padavi Mahavidyalaya, an

educational institution run by the accused. At that

point of time, on the request of accused for hand loan

for improvement of institution and business necessities,

the complainant advanced loan of Rs.7,00,000/- to him

on 10.06.2009 by pooling out funds from her family

members and relatives. The accused agreed to repay the

loan within six months. After six months, the accused

did not repay the loan. After repeated persuasion

accused

issued

a

cheque

dated

15.03.2010

for

Rs.7,00,000/- to complainant, drawn on Canara Bank,

Subramanya

Nagar,

Bangaluru.

The

complainant

presented the cheque for encashment. The cheque

returned unpaid with an endorsement ‘account closed

by drawer’. Immediately thereafter, the complainant

5

issued a legal notice dated 27.03.2010 to accused to his

both addresses. The accused issued reply notice. With

these averments the complainant had filed complaint for

the offence punishable under Section 138 of the N.I.

Act.

05.

The complainant herself examined as PW.1

and produced documents as per Exs.P.1 to 7. The

accused

denied the

incriminating

evidence

while

recording his statement under Section 313 of Cr.P.C.

Accused led defence evidence by examining himself as

DW.1 and he examined two witnesses as DWs.2 and 3

and got marked documents as per Exs.D.1 to 10.

06.

The Trial Court after hearing arguments of

both sides, formulated point for consideration and

passed judgment dated 08.03.2013 in C.C.No.3811/

2010 and convicted the accused for the offence

punishable under Section 138 of N.I. Act and sentenced

him to pay a fine of Rs.10,00,000/-. In default to pay

6

fine, the accused shall undergo simple imprisonment for

a period of six months. Out of this fine amount, a sum

of

Rs.9,75,000/-

was

ordered

to

be

pai