Shashikala C Vs Santhosha Kumari

THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.PC (FILED U/S 438 R/W 442 BNSS) PRAYING TO SET ASIDE THE JUDGMENT DATED 04.10.2025 IN C.C.NO.1125/2023 PASSED BY THE II ADDL. CIVIL JUDGE AND J.M.F.C AT TUMAKURU AND THE DISMISSAL ORDER DATED 02.03.2026 PASSED BY THE HONBLE VII ADDL. DISTRICT AND SESSIONS

¶18

2 -

¶19

HC-KAR

¶20

NC: 2026:KHC:37301 CRL.RP No. 1031 of 2026

¶21

CNR: KAHC010431312026

¶22

JUDGE AND SPECIAL JUDGE AT TUMAKURU IN CRL.A.NO.1125/2023 AND ACQUIT THE ABOVE PETITIONER.

¶23

THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶24

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

¶25

ORAL ORDER

¶26

This matter is listed for consideration of I.A.No.2/2026 for condonation of delay of 25 days in filing the petition and I.A.No.1/2026 for suspension of sentence.

¶27

2. The factual matrix of the case of the complainant before the Trial Court is that the complainant and the accused are well known persons to each other and the accused being Government employee working at Taluk Office, Tumkur, is also neighbour of the complainant. As such there was good relationship between the accused and the complainant. On the said background, the accused has approached the complainant with the financial assistance of Rs.9,50,000/- for the treatment of her mother and also substitute the lease amount of her own house given for lease. At that time, the complainant has agreed to lend the amount of Rs.9,50,000/- to the accused. The complainant has arranged said amount by pledging the gold

¶28

NC: 2026:KHC:37301 CRL.RP No. 1031 of 2026

¶29

3 -

¶30

HC-KAR

¶31

CNR: KAHC010431312026

¶32

ornament in Manappuram Finance Ltd., Raghavendra Nagara, Tumkur branch on 18.05.2022 for Rs.6,43,540/- and remaining amount of Rs.3,06,460/- from her savings. The accused has borrowed the said amount on 18.05.2022. Thereafter, the accused assured that she will repay the said amount within three months. After lapse of three months, the complainant has demanded the accused to repay the said loan amount and the accused postponed the same saying one or the other reasons. Finally, the accused has issued a cheque on 15.12.2022 for Rs.9,50,000/-. When the cheque was presented, the same was returned with a shara “funds insufficient”. Hence, notice was given and the accused has given evasive reply. Without any other option, the complainant filed complaint invoking Section 138 of the Negotiable Instruments Act and cognizance was taken and the accused was secured and she did not plead guilty and claimed trial. Hence, the complainant examined herself as P.W.1 and got marked the documents at Exs.C.1 to 6. The complainant was cross-examined and the accused not led any defence evidence.

¶33

HC-KAR

¶34

NC: 2026:KHC:37301 CRL.RP No. 1031 of 2026

¶35

4 -

¶36

CNR: KAHC010431312026

¶37

3. The Trial Court having considered the material on record, particularly with regard to the capacity of the complainant to pay the amount, taken note of Ex.C.6, wherein the gold was pledged in Manappuram Finance Ltd., and the amount was paid to the accused on the very same day, adjusting the remaining amount. But the accused did not repay the amount and finally, issued the subject matter of the cheque. The defence which was taken by the accused is that the cheque was given to one Sadashivamurthy and the said cheque was collected from Sadashivamurthy and filed the present complaint. The said defence was not substantiated by leading any evidence and nothing is elicited from the mouth of P.W.1 with regard to the said defence is concerned and hence, the Trial Court convicted and sentenced the accused.

¶38

4. The Appellate Court also having taken note of the grounds urged in the appeal and also considering the material available on record, re-appreciated both oral and documentary evidence and concurred with the judgment of the Trial Court.

¶39

5. The main contention of the learned counsel for the

¶40

revision petitioner before this Court is that both the Courts

¶41

NC: 2026:KHC:37301 CRL.RP No. 1031 of 2026

¶42

5 -

¶43

HC-KAR

¶44

CNR: KAHC010431312026

¶45

committed an error in coming to the conclusion that the complainant has proved the case.

¶46

6. The Apex Court in its judgment in the case of RAJESH JAIN v. AJAY SINGH reported in (2023) 10 SCC 148, held that, presumption under Sections 118 and 139 of NI Act, when there is no dispute over execution of cheque – When arises – Nature of evidence based on which such presumption may be raised and there must be a rebuttal evidence and with regard to the rebuttal evidence also, the Apex Court in detail discussed the standard of proof required to rebut the presumption. Having taken note of the principles laid down in the judgment, there is no material before the Court that the defence which was taken is substantiated by examining Sadashivamurthy and also not explained how the cheque gone to the hands of the complainant. It is the specific case of the complainant that the complainant and the accused are friends and when the accused was in need of money, the complainant pledged the gold ornaments in Manappuram Finance Ltd. and taken the amount and remaining amount was given from the amount which she had saved and on the very same day the

¶47

HC-KAR

¶48

NC: 2026:KHC:37301 CRL.RP No. 1031 of 2026

¶49