RAJSHEKHAR vs GURAPPA

Court
Karnataka High Court

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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH


TH
DATED THIS THE 12 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY

CRIMINAL APPEAL NO.200373 OF 2025

(378(Cr.PC)/419(BNSS))

BETWEEN:

RAJSHEKHAR
S/O ERANNA RAVOOR,
AGE: 47 YEARS,
OCC: LECTURER,
R/O: PLOT NO.134, SHIVA SHAKTI COLONY,
OPP: GANGA VIHAR APARTMENT,
SAI MANDIR ROAD,
KALABURAGI – 585 101.

…APPELLANT

(BY SRI RAJSHEKHAR S/O ERANNA RAVOOR
(PARTY IN PERSON)

AND:

GURAPPA S/O MALKANNA K.,
AGE: 60 YEARS,
OCC: RTD. KSRTC EMPLOYEE,
R/O: PLOT NO.24, RAJMA LAYOUT,
BEHIND KALABURAGI GARAGE,
HIGH COURT ROAD,
KALABURAGI – 585 107.
…RESPONDENT

(BY SRI RAJESH DODDAMANI, ADVOCATE)










Digitally signed by
SUMITRA
SHERIGAR
Location: HIGH
COURT OF
KARNATAKA

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THIS CRL.A. IS FILED UNDER SECTION 419(4) OF BNSS
(NEW) U/S. 378 (4) OF CR.P.C (OLD), PRAYING TO CALL FOR
TH
THE RECORDS IN CC NO. 17415/2022, ON THE FILE OF V
ADDL. CIVIL JUDGE AND JMFC AT KALABURAGI AND CRL.A
NO. 04/2025, ON THE FILE OF V ADDL. DISTRICT AND
SESSIONS JUDGE AT KALABURAGI, TO SATISFY THE
CORRECTNESS.
B) SET ASIDE THE JUDGMENT AND ORDER DATED
20-11-2025, IN CRL.A NO.04/2025, PASSED BY THE V ADDL.
DISTRICT AND SESSIONS JUDGE AT KALARBURAGI, BY
ALLOWING THIS CRIMINAL APPEAL AND RESTORE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 23-12-2024, IN CC NO.17415/2022, PASSED BY THE V
ADDL. CIVIL JUDGE AND JMFC AT KALABURAGI, AGAINST THE
ACCUSED RESPONDENT HEREIN.
C) PASS SUCH OTHER RELIEF/S AS THIS HON’BLE
COURT DEEMS FIT TO GRANT IN THE CIRCUMSTANCES OF
THE CASE, IN THE INTEREST OF JUSTICE.

THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.06.2026 AND COMING ON FOR
‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY

CAV JUDGMENT

This appeal is filed by the appellant under Section
419(4) of Bharatiya Nagarik Suraksha Sanhita, 2023
(for short ‘BNSS’) to call for the records in the case in
CC No.17415/2022 on the file of learned V Additional
Civil Judge and JMFC, Kalaburagi (for short ‘the learned
Magistrate’) and in Criminal Appeal No.4/2025 on the

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file of the learned V Additional District and Sessions
Judge, Kalaburagi (for short ‘the Appellate Court’) and
thereby, to set aside the judgment and order dated
20.11.2025 of the Appellate Court by allowing this
appeal and restore the judgment regarding order of
conviction and sentence dated 23.12.2024 of the
learned Magistrate in CC No.17415/2022 passed
against the respondent.


2. The appellant is complainant and the
respondent is accused in the case before the learned
Magistrate/ trial Court and hence, for the purpose of
convenience, the parties to this appeal are herein
referred to in their ranks in the case before the trial
Court.


3. The complainant filed a private complaint
before the learned Magistrate against the accused under
Section 200 of Code of Criminal Procedure (for short

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‘Cr.P.C.’) for the offence punishable under Section 138
of Negotiable Instruments Act (for short ‘NI Act’) alleging
that the complainant and the accused are belonging to
same town, Yedrami village and they are well
acquainted with each other. The accused used to borrow
loans from the complainant in emergencies and he
would pay them promptly. On 18.05.2019 the accused
approached the complainant seeking hand loan of
Rs.9,00,000/- for his family's necessities and some legal
liabilities. The complainant paid Rs.7,44,000/- in cash
and Rs.1,56,000/- through cheque on the same day
without charging any interest for the period of two
years. After the expiry of two years, the complainant
demanded the accused to repay the amount and hence,
on 10.12.2021 the accused issued cheque No.314217
for an amount of Rs.7,20,000/- drawn on State Bank of
India, Vidya Nagar Branch, Kalaburagi, promising to
pay the balance amount of Rs.1,80,000 subsequently.

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4. It is also alleged that the complainant
presented the said cheque twice and it was returned
dishonored on 21.12.2021 for the reason ‘exceeds
arrangement’. The complainant informed the said fact to
the accused and he told to represent the cheque after 30
days. Hence, the complainant presented the cheque on
20.01.2022 through his bank once again. But once
again the said cheque was dishonored. On 15.02.2022,
the accused issued another cheque bearing No.314216
for the sum of Rs.9,00,000/- drawn on State Bank of
India, Vidya Nagar Branch, Kalaburagi. When the
complainant presented the said cheque for encashment,
it was dishonored. The complainant informed the same
to the accused. The accused told him to present the
cheque. Accordingly, on 06.04.2022 the complainant
presented the cheque. But at that time also, the cheque
was returned unencashed with memo issued by the
banker of the complainant for the reason ‘funds

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insufficient’. When the complainant informed the same
to the accused, the accused paid Rs.25,000/- to him on
11.05.2022 in cash and issued a cheque dated
11.05.2022 for the sum of Rs.8,75,000/- drawn on
State Bank of Hyderabad, which was merged with Union
Bank of India, Vidya Nagar Branch, Kalaburagi. The
complainant presented the cheque to his bank on
16.05.2022 for encashment. But the said cheque was
dishonored on 17.05.2022 with endorsement ‘exceeds
arrangement’. The complainant informed the said fact
to the accused on 18.06.2022 and on the same day, the
accused requested the complainant to pay Rs.25,000/-
to him on the ground that he was unwell. Therefore, the
complainant paid Rs.25,000/- to the accused in cash
and after receipt of Rs.25,000/-, the accused issued
cheque on 27.06.2022 for an amount of Rs.9,00,000/-
drawn on the State Bank of Hyderabad, Vidya Nagar
Branch, Kalaburagi. But it was also dishonored. Hence,

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on 27.07.2022 the complainant issued legal notice
calling upon the accused to make payment of the
cheque amount.


5. It is further contended that the legal notice
was duly served to the accused on 29.07.2022. But in
spite of service of notice, the accused did not make
payment of the cheque amount. Hence, the complainant
filed complaint before the learned Magistrate as per PCR
No.610/2022. The learned Magistrate after considering
the complaint took cognizance of the offence punishable
under Section 138 of NI Act and registered the case
against the accused for the alleged offence in CC
No.17415/2022. The accused appeared before the
learned Magistrate and pleaded not guilty for the offence
alleged against him and thereby, claimed to be tried.


6. In support of the case of the complainant, he
got examined himself as PW.1 and produced documents

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at Exs.P.1 to P17. After closing of the evidence of the
complainant, the accused was examined by the learned
Magistrate under Section 313 of Cr.P.C., wherein he
denied the incriminating materials forthcoming against
him in the evidence of complainant as false. But he did
not adduce any evidence or produce any document in
support of his defence.


7. After hearing the arguments of both the
parties and on considering the oral and documentary
evidence forthcoming on record, the learned Magistrate
convicted the accused for the offence punishable under
Section 138 of NI Act as per the judgment dated
23.12.2024 and sentenced him to pay fine of
Rs.9,05,000/-, in default to pay the fine, to undergo
simple imprisonment for the period of six months. It is
also ordered that out of the fine amount of
Rs.9,05,000/- an amount of Rs.9,00,000/- shall be paid

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to the complainant as compensation under Section 357
of Cr.P.C.


8. Being aggrieved by the judgment of the
learned Magistrate regarding order of conviction and
sentence, the accused preferred the appeal before the
Appellate Court as per the Criminal Appeal No.4/2025.
The Appellate Court under the impugned judgment
dated 20.11.2025, allowed the appeal filed by the
accused and set aside the judgment of the learned
Magistrate regarding the order of conviction and
sentence, and thereby, the accused is acquitted of the
offence punishable under Section 138 of NI Act. Hence,
the complainant is before this Court in the present
appeal. The accused being the respondent in the case
has appeared through counsel. The trial Court records
have been called for.

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9. Heard the arguments of the complainant and
also the learned counsel for the accused. Perused the
oral and documentary evidence forthcoming on record.
Now the points that arise for consideration of this Court
are:

1. Whether the complainant makes out any
ground to show that the Appellate Court has
failed to appreciate oral and documentary
evidence forthcoming on record in proper
perspective and thereby, committed an error
in setting aside the judgment of the learned
Magistrate regarding the order of conviction
and sentence passed against the accused?


2. Whether the complainant makes out any
ground to interfere with the impugned
judgment of the Appellate Court and thereby
to convict the accused for the offence as
alleged?


10. At the very outset, it is relevant to note that
as per the case of complainant, hand loan availed by the
accused was Rs.9,00,000/-. As per the complaint
averments, out of the said amount of Rs.9,00,000/-, the
complainant paid a sum of Rs.7,44,000/- in cash and

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Rs.1,56,000/- by way of cheque drawn on Union Bank
of India, Vidya Nagar Branch, Kalaburagi on
18.05.2019. As held by the Appellate Court, it is very
strange that the amount of Rs.7,44,000/- was paid in
cash and only the amount of Rs.1,56,000/- was paid by
way of cheque.


11. As per the materials on record forthcoming
from the complainant, it would be clear that he is
working as lecturer. The complainant got examined as
PW.1 before the learned Magistrate. He filed his affidavit
as evidence in chief-examination reiterating the facts
averred in the complaint. The cheque dated 10.12.2021,
two memos issued by the bank for having returned the
cheque un-encashed, cheque dated 15.02.2022 for an
amount of Rs.9,00,000/-, two memos issued by the
bank for having returned the cheque, cheque dated
11.05.2022 for an amount of Rs.8,75,000/-, two memos
issued by the bank for having returned the cheque un-

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encashed, cheque dated 27.06.2022 for an amount of
Rs.9,00,000/-, memo issued by the bank for having
returned the said cheque unencashed, copy of legal
notice dated 27.07.2022 issued by the complainant to
the accused, postal receipt for having sent the notice to
the accused and letter issued by the postal department
regarding service of legal notice to the accused were
produced and got marked at Exs.P.1 to P.14
respectively.


12. The learned Magistrate only on the ground
that there is no dispute regarding the signatures of the
accused on the cheque at Exs.P.1, P.4, P.7 and P.10
respectively, held that the complainant proved his case
on the basis of presumption arising in his favour under
Section 139 of NI Act. But, as held by the Appellate
Court, the learned Magistrate has lost sight of the
admissions of the complainant forthcoming in his
evidence.

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13. It is pertinent to note that the presumption in
favour of the complainant under Section 139 of NI Act is
rebuttable presumption. Hence, to rebut such
presumption, the accused should have adduced his
evidence. But mere fact that the accused failed to
adduce any evidence cannot be ground to come to
conclusion that he did not rebut the presumption
arising in favour of the complainant regarding the above
said cheques under Section 139 of NI Act. The accused
could make use of the evidence adduced by the
complainant to show that the presumption under
Section 139 of NI Act in favour of the complainant, who
is holder of the cheque in due course, is rebutted.


14. As mentioned hereinabove, the learned
Magistrate has lost sight of the admissions made by the
complainant in his evidence, even though such evidence
is culled out in the judgment. The learned Magistrate
has referred to the evidence of the complainant as PW.1,

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wherein the complainant deposed that he did not inform
the Income Tax department regarding payment of the
alleged loan of Rs.9,00,000/- to the accused. He also
deposed that he had not got executed any agreement
regarding alleged loan of Rs.9,00,000/- given by him to
the accused.


15. Further, the complainant admitted that the
accused issued reply to his notice, but he did not
mention regarding the reply in the complaint and also in
his evidence in chief-examination. The relevant portion
of the evidence of the complainant as PW.1 before the
learned Magistrate is also referred to by the learned
Magistrate in the judgment, wherein the complainant
denied that the accused availed loan of Rs.2,00,000/-
only from him and after deducting the interest amount,
the complainant issued cheque for Rs.1,56,000/- in
favour of the accused.

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16. However, it is pertinent to note that to the
suggestions of the learned counsel for the accused in
the evidence in cross-examination the complainant
being PW.1 deposed that the promissory note and six
blank cheques given by the accused regarding the
availment of loan of Rs.2,00,000/- are not related to the
present case. This would clearly show that the
complainant did not deny the fact that the accused
availed loan of Rs.2,00,000/- and executed promissory
note and gave six blank cheques in respect of the said
loan. Therefore, the above referred evidence of the
complainant as PW.1 would clearly probablize the fact
that the accused availed loan of Rs.2,00,000/- only from
the complainant by executing promissory note and in
respect of the said loan, the accused gave six signed
blank cheques in favour of the complainant. Hence, as
submitted by the learned counsel for the accused, there
was every chance of the complainant having misused

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those cheques by filling the same with different amounts
and presented such cheques for encashment.


17. Moreover, as pointed out by learned counsel
for the accused, it is admitted by the complainant in his
evidence in cross-examination that the contents of the
cheques produced by him in the case are in his hand
writing. This would clearly show that the complainant
by filling in the cheques with different amounts, would
have created the story that the accused availed loan of
Rs.9,00,000/- from him and gave the cheque at Exs.P.1,
P.4, P.7 and P.10 to him, only to make unlawful gain
from the accused.


18. From the reasoning of the Appellate Court in
the impugned judgment, it would be clear that the
Appellate Court has considered each and every aspect of
the facts of the case and also the oral and documentary
evidence on record in detail and discussed how the

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cheques produced by the complainant are not believable
and how the presumption under Section 139 of NI Act is
not available in favour of the complainant regarding
those cheques.


19. In addition to the reasoning of the Appellate
Court in the impugned judgment, it is relevant to note
that when the alleged first cheque at Ex.P.1 was
presented for encashment, it was returned unencashed.
But the contention of the complainant is that at the
request of the accused, he presented the cheque for
second time for encashment. The memos at Exs.P.2 and
P.3 are produced in support of his contention. The case
of the complainant is also that thereafter on 15.02.2022
the accused issued another cheque in his favour as per
Ex.P.4. He presented the cheque for encashment and
the same was returned unencashed twice for ‘funds
insufficient’. Hence, the contention of complainant that
thereafter he informed the said fact to the accused and

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the accused paid Rs.25,000/- to him on 11.05.2022 in
cash and he issued cheque for Rs.8,25,000/- on the
same day as per Ex.P.7 is not believable. No prudent
man would take only Rs.25,000/- from the borrower if
the loan was of Rs.9,00,000/- and two cheques issued
regarding payment of the alleged loan were returned
earlier twice. Therefore, the contention of complainant
that the accused issued cheque for the third time on
11.05.2022 for an amount of Rs.8,75,000/- as per
Ex.P.7 is also not believable.


20. As submitted by the learned counsel for the
accused, the contention of the complainant that on
18.06.2022 due to health problem of the accused, the
accused demanded a sum of Rs.25,000/- and hence,
the complainant paid Rs.25,000/- by cash on that day
and for clearing the entire loan of Rs.9,00,000/-, the
accused issued cheque for the said amount as per
Ex.P.10 on 27.06.2022 also is not believable, if the

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evidence forthcoming from the complainant is taken into
consideration. When it is the case of the complainant
that the accused availed loan of Rs.9,00,000/- from him
on 18.05.2019 and in spite of presentation of the
cheque issued by the accused to him for third time, the
cheque was returned unencashed. No prudent person
would lend the amount of Rs.25,000/- and again obtain
cheque from the accused for an amount of
Rs.9,00,000/-.


21. Further, this Court can take judicial notice of
the fact that the State Bank of Hyderabad was merged
with State Bank of India in the year 2017 as per the
Gazette of India Notification G.S.R. 157 (E) dated
February 22, 2017, with effect from 01.04.2017. Hence,
from that day onwards the State Bank of Hyderabad has
not been in existence. But in the case on hand it is very
strange to note that the bank account number of the
accused in all the cheques at Exs.P.1, P.4, P.7 and P.10

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is 52011407111. The cheques at Exs.P.1 and P.4 are
dated 10.12.2021 and 15.02.2022 respectively. But it is
very strange to note that subsequently on 11.05.2022
and 27.06.2022, the cheques at Exs.P.7 and P.10
respectively were drawn on State Bank of Hyderabad. It
is not the case either of the complainant or of the
accused that the said four cheques pertain to different
bank accounts maintained by the accused. Therefore,
when the State Bank of Hyderabad has not been in
existence since 01.04.2017 and the cheques at Exs.P.1
and P.4 dated 10.12.2021 and 15.02.2022 were drawn
on State Bank of India, it is absolutely not believable
that the accused issued cheques at Exs.P.7 and P.10 in
the months of May and June, 2022 respectively drawn
on State Bank of Hyderabad.


22. It is also pertinent to note that in spite of the
fact that the accused issued reply to the legal notice of
the complainant, the complainant did not whisper about

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the said reply in his complaint and also in the affidavit
filed by him as evidence in chief-examination as PW.1.
As pointed out by learned counsel for the accused, the
complainant in his evidence in cross-examination has
admitted that accused issued reply to his legal notice. It
is also admitted by the complainant that he did not
mention of the said reply notice in his complaint and
also in his affidavit filed as evidence as chief-
examination.


23. Subsequently, the reply issued by the
accused through his counsel was produced as per
Ex.P.15. The postal cover regarding notice was also
produced by the complainant as per Ex.P17. The
document at Ex.P.16 is the letter issued by the counsel
for the complainant to the Senior Superintendent of
Post Office on 02.09.2022 regarding non receipt of
acknowledgment in respect of notice issued to the
accused. However, when the accused issued reply as

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per Ex.P.15 to the legal notice issued by the
complainant and it is admitted by the accused that he
received legal notice from the complainant, the
document at Ex.P.16 becomes immaterial. At the time of
argument, the submission of the complainant is that the
reply received by him is subsequent to filing of the
complaint and hence, in the complaint it was not
mentioned.


24. As per the materials on record, the
complainant filed the complaint before the learned
Magistrate on 03.09.2022. The reply notice at Ex.P.15
was issued on 12.09.2022. Hence, it is true that the
reply notice issued by the accused to the complainant
was subsequent to filing of the complaint. Hence, there
would not be any occasion for the complainant to
mention in the complaint of the receipt of reply by him
from the accused.

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25. However, as submitted by the learned counsel
for the accused, t he complainant got examined himself
as PW.1 before the learned Magistrate on 16.09.2022.
Hence, at least in the evidence in chief-examination the
complainant should have mentioned regarding receipt of
the reply. This would show that the complainant
received reply notice from the accused earlier to his
evidence in chief-examination. But he did not mention
the said fact in his affidavit in chief-examination.


26. It is relevant to note that in the reply notice,
the accused mentioned that he took loan of
Rs.2,00,000/- from the complainant and at the time of
giving loan on interest, the complainant took one
promissory note and six blank cheques from him and
after deducting the interest, he paid Rs.1,56,000/-
through account payee cheque. But the complainant
was asking more money by blackmailing him, as he was
having blank cheques. When the accused refused to give

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more money, the complainant got bounced cheque by
filling the amount as Rs.9,00,000/-. This contention of
the accused mentioned in his reply is probabilized by
the fact that in the complaint itself, it is the case of the
complainant that he paid Rs.1,56,000/- as loan through
account payee cheque to the accused in part payment of
loan.


27. Moreover, as discussed hereinabove, as on
the date of taking loan, the State Bank of Hyderabad
was already merged with State Bank of India. Hence,
the question of issuing cheques at Exs.P.7 and P.10 on
11.05.2022 and 27.06.2022 respectively that too after
the dates of the alleged issuance of the cheques at
Exs.P.1 and P.4, which were drawn on State Bank of
India would not have arisen. It is true that the accused
admitted his signatures on the cheques at Exs.P.1, P.4,
P.7 and P.10. But he denied that the consideration of
Rs.9,00,000/- was paid to him under those cheques.

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Moreover, one cheque at Ex.P.7 was alleged to have
been issued for Rs.8,25,000/-. As mentioned earlier, the
fact that at the relevant time, the accused paid
Rs.25,000/- to the complainant towards loan is without
any documents and same is absolutely not believable,
as the evidence on record would show that all the
cheques were given by the accused to the complainant
at the time of availing loan i.e., as early as 18.05.2019
and subsequently, the concerned cheques were filled by
the complainant himself.


28. Under such circumstances, the cheques at
Ex.P.1, P.4 and P.7 cannot be considered as cheques
issued for payment of loan. Further, those cheques
cannot be considered as acknowledgment of any debt by
the accused. As discussed by the Appellate Court in the
impugned judgment, the alleged last cheque was issued
on 27.06.2022. Therefore, the said cheque was issued
beyond the period of three years from the date of alleged

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loan. Therefore, even if it is accepted that the accused
obtained loan of Rs.9,00,000/- from the complainant as
on the date of issuance of cheque at Ex.P.4, the said
loan was time barred.


29. As per the explanation to Section 138 of NI
Act, the cheque should be issued towards legally
recoverable debt. But in the case on hand, the alleged
loan is time barred, which is not legally recoverable
debt. It is relevant to refer to Section 138 of NI Act
which reads thus:
“138. Dishonour of cheque for insufficiency,
etc., of funds in the account.— Where any cheque
drawn by a person on an account maintained by him
with a banker for payment of any amount of money to
another person from out of that account for the
discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either because
of the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that
account by an agreement made with that bank, such

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person shall be deemed to have committed an offence
and shall, without prejudice to any other provisions of
this Act, be punished with imprisonment for a term
which may be extended to two years, or with fine which
may extend to twice the amount of the cheque, or with
both:
Provided that nothing contained in this section
shall apply unless—
(a) the cheque has been presented to the bank
within a period of six months from the date on which it
is drawn or within the period of its validity, whichever is
earlier;
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for the
payment of the said amount of money by giving a notice
in writing, to the drawer of the cheque, [within thirty
days of the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee or,
as the case may be, to the holder in due course of the
cheque, within fifteen days of the receipt of the said
notice.

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Explanation.—For the purposes of this section,
“debt or other liability” means a legally enforceable debt
or other liability.”
Therefore, as discussed by the Appellate Court in the
impugned judgment, the cheque at Ex.P.10 does not
merit consideration and any presumption cannot be
drawn in favour of the complainant regarding the said
cheque, as the said cheque is alleged to have been
issued towards time barred debt. Hence, the liability or
debt in respect of the said cheque is not legally
recoverable debt. On this point also, the case alleged
against the accused for the offence under Section 138 of
NI Act regarding the concerned cheque does not stand
for consideration.


30. It is true that the complainant has drawn the
attention of this Court to two decisions of the
Coordinate Bench of this Court in the cases of
Sri Basavaraj Vs. Sri Hanamanth in Criminal Appeal

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No.200048/2019 dated 06.08.2025 and Vishwanath Reddy
M.S. Vs. Ratan Hanamant Gosavi Criminal Appeal
in
No.200359/2023 dated 11.09.2025 . Those decisions are
relied on by the complainant to show that there is
presumption in his favour under Section 139 of NI Act
regarding the cheque. But the facts of the above referred
cases are different from the facts of the case on hand. In
those cases, the impugned judgments of the learned
Magistrate are set aside on the ground that the learned
Magistrate proceeded to acquit the accused on the
ground that the complainants had not proved their
financial capacity.


31. The Appellate Court has referred the following
decisions of the Hon'ble Apex Court in support of his
contention that there is presumption in his favour
regarding cheques at Exs.P.1, P.4, P.7 and P.10 and
especially in respect of Ex.P.10 which is issued finally:

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(a) Rangappa Vs. Mohan reported in (2010) 11 SCC
441


(b) Rajaram Vs. Maruthachalam reported in 2023
Livelaw (SC) 46

(c) MMTC Limited and another Vs. Medchi Chemicals
and Pharma (P) Ltd. another reported in (2002) 1
SCC 234,
and


(d) Kumar Exports Vs. Sharma Carpets reported in
(2009) 2 SCC 513


There is absolutely no dispute regarding the
presumption under Section 139 and also under Section
138 of NI Act in favour of holder of cheque in due
course.


32. However, as pointed out by the learned
counsel for the accused, such presumption is rebuttable
presumption. As discussed hereinabove, the contention
of complainant put forth in the complaint and also
evidence in chief-examination of PW.1 would create
doubt that the accused gave cheques to him at Exs.P.1,
P.4, P.7 and P.10 on different dates. On the other hand,
the evidence in cross-examination of PW.1 p robabilizes

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the defence put forth by the accused that all those
cheques were given at the initial stage as security for
the loan of Rs.2,00,000/- availed by him and the said
loan was paid to him by the complainant by deducting
interest at the initial stage and the cheque was issued
for an amount of Rs.1,56,000/- by the complainant in
favour of the accused. Hence, even though there is no
dispute regarding the principles of law laid down in the
above referred decisions, those decisions do not help the
complainant in the case on hand.


33. Further, in one of the above referred decisions
of the Hon'ble Apex Court, it is held as under:
“33. A meaningful reading of the provisions of
the Negotiable Instruments Act including, in
particular, Sections 20, 87 and 139, makes it amply
clear that a person who signs a cheque and makes it
over to the payee remains liable unless he adduces
evidence to rebut the presumption that the cheque
had been issued for payment of a debt or in
discharge of a liability.

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Hence, the principle of law laid down in the above
referred decision makes it clear that the presumption
under Section 139 of NI Act is rebuttable presumption.
In the case on hand, the accused was able to rebut the
presumption arising under Section 139 of NI Act, by
demonstrating that the cheque at Ex.P.10 was not
issued towards the discharge of any legally enforceable
debt or liability. From the complaint averments and the
evidence of complainant as PW.1, it is clear that the
alleged loan is time barred. Therefore, on this ground
also, the case filed by the complainant against the
accused for the offence punishable under Section 138 of
NI Act does not stand for consideration.


34. The Appellate Court has mentioned in the
impugned judgment that there is no evidence to show
the annual income of the complainant, who was working
as lecturer in different colleges at the relevant date and
that he was earning more than Rs.9,00,000/- and

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hence, the contention of the complainant that he gave
loan of Rs.9,00,000/- to the accused is not believable.
But such reason is regarding financial capacity of
complainant to lend money to the accused. But the
contention of complainant that he gave loan of
Rs.9,00,000/- without interest for the period of two
years improbabilizes the same.


35. The learned Magistrate in the impugned
judgment relied on the decision of the Hon'ble Apex
Court in the case in Rangappa (supra) regarding the
presumption under Section 139 of NI Act. The learned
Magistrate also relied on the decision of this Court in
Smt. Bhagyalakshmi Vs. Smt. Cheluvamma in
Cr.A.No.2104/2018
and the decision of the Hon’ble
Supreme Court in the case in Oriental Bank of Commerce
Vs. Prabodh Kumar Tivari 2022 SCC Online SC
reported in
1089. Those decisions are also regarding the
presumption under Section 139 of NI Act. But as

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discussed hereinabove, the evidence of complainant as
PW.1 improbabilizes the presumption arising in his
favour regarding the cheque at Exs.P.1, P.4, P.7 and
P.10.


36. Even though four cheques are produced by
the complainant, the entire case of the complainant
would rest on the last cheque dated 27.06.2022 drawn
on State Bank of Hyderabad for an amount of
Rs.9,00,000/-. As discussed hereinabove, State Bank of
Hyderabad merged with State Bank of India as early as
in the year 2017. Moreover, when it is the case of
complainant that the cheques at Exs.P.1 and P.4 were
issued by the accused on 10.12.2021 and 15..02.2022,
which are earlier to issuance of cheque at Ex.P.10,
drawn on State Bank of Hyderabad respect of the same
bank account, it is not believable that the accused
issued the cheque at Ex.P.10 on 27.06.2022 i.e., after
more than five years of merging of State Bank of

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Hyderabad with State Bank of India. Therefore, the
cheque at Ex.P.10 on which the entire case of the
complainant rests falsifies the case of the complainant
regarding the presumption in his favour in respect of
the said cheque.


37. As submitted by the learned counsel for the
accused, the Appellate Court has not committed any
error in dismissing the complaint by setting aside the
judgment of the learned Magistrate. Further, the
reasoning of the Appellate Court in the impugned
judgment would show that the Appellate Court has
considered each and every aspects of the oral and
documentary evidence forthcoming from the
complainant and thereby rightly come to the conclusion
that the complainant has failed to prove his case.


38. On meticulous consideration of the reasoning
of the Appellate Court would clearly show that the

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Appellate Court has considered every aspect of the facts
of the case and also the principles of law applicable to
the case and thereby correctly come to the conclusion
that the provision under Section 139 of NI Act is not
available to the complainant in respect of the cheque at
Ex.P.10. Moreover, the cheque at Ex.P.10 was allegedly
issued after the period of limitation for recovery of the
amount from the date of alleged loan. Therefore, as on
the date of the cheque at Ex.P.10, there was no legally
recoverable debt on the part of the accused. Hence, the
very contention of complainant that the accused issued
cheque at Ex.P.10 in his favour on 27.06.2022 is proved
to be false. Therefore, the Appellate Court has rightly
allowed the appeal filed by the accused and thereby set
aside the judgment of the learned Magistrate regarding
the order conviction and sentence passed against the
accused.

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39. The discussion made hereinabove would show
that the complainant has failed to make out any ground
to show that the Appellate Court has not properly
appreciated oral and documentary evidence in proper
perspective and thereby committed any error in setting
aside the judgment of the learned Magistrate regarding
the order of conviction and sentence passed against the
accused. Consequently, the complainant has failed to
make out any ground to interfere with the impugned
judgment of the Appellate Court and thereby to convict
the accused for the alleged offence. Therefore, the
complainant has failed to prove points No.1 and 2 and
hence, the points No.1 and 2 are answered in the
negative.


40. In the result, the appeal is liable to be
dismissed and therefore, I proceed to pass the following:
ORDER

(a) This Criminal Appeal is hereby dismissed.

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(b) Consequently, the judgment dated 20.11.2025
of the learned V Additional District and
Sessions Judge, Kalaburagi in Criminal
Appeal No.4/2025 is confirmed and the
judgment dated 23.12.2024 of the V Additional
Civil Judge and JMFC, Kalaburagi in
CC No. 17415/2022 is set aside.


(c) The accused/ respondent is acquitted of the
offence punishable under Section 138 of

Negotiable Instruments Act in the case.




Sd/-
(TYAGARAJA N. INAVALLY)
JUDGE
RSP
List No.: 1 Sl No.: 68