The High Court
Case Details
- 1 - NC: 2025:KHC:22640 CRL.RP No. 164 of 2023 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 164 OF 2023 (397(Cr.PC) / 438(BNSS)) BETWEEN: SRI. MANJUNATH S/O H C PUTTASWAMY AGED ABOUT 39 YEARS BUSINESSMAN AND AGRICULTURIST R/O HIREMAGALURU JYOTHINAGARA POST CHIKKAMAGALURU – 577 102. (BY SRI H R SANTHOSH, ADVOCATE) AND: SRI. ZUBAIR S/O IBRAHIM AGED ABOUT 28 YEARS PROPRIETOR R/AT BHARATH CEREMAICS SIDDE GOWDA BUILDING NEAR BULLET SHOWROOM BYPASS ROAD CHIKKAMAGALURU – 577 101. Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA …PETITIONER …RESPONDENT
Legal Reasoning
(BY SRI RAVIKUMAR N R, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF Cr.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND SENTENCE DATED 20.01.2022 BY - 2 - NC: 2025:KHC:22640 CRL.RP No. 164 of 2023 HC-KAR THE PRL.SENIOR CIVIL JUDGE AND C.J.M CHIKKAMAGALURU IN C.C.No.1068/2020 CONVICTING THE PETITIONER AND THE SAME HAS BEEN CONFIRMED BY THE II ADDL.DISTRICT AND SESSIONS JUDGE AT CHIKKAMAGALURU IN CRL.A.No.43/2022 ON 25.10.2022 AND ALLOW THE APPEAL AND ACQUIT THE PETITIONER. THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER This revision petition is directed against the judgment dated 25.10.2022 passed in Crl.A.No.43/2022 by the II Additional District and Sessions Judge at Chikkamagaluru where under the judgment of conviction of the petitioner dated 20.01.2022 by the Prl.Senior Civil Judge and CJM, Chikkamagaluru convicting the petitioner for the offence under Section 138 of the N.I.Act has been affirmed. 2. Heard learned counsel for the petitioner and learned counsel for the respondent. - 3 - NC: 2025:KHC:22640 CRL.RP No. 164 of 2023 HC-KAR 3. The case of the complainant was that he has supplied materials to the petitioner-accused worth Rs.2,35,044/- under bill No.053 dated 30.09.2018 and accused has issued two cheques of Rs.85,000/- each dated 30.08.2018 bearing Nos.768736 and 768737 drawn on Kaveri Grameena Bank, Chikkamagaluru. The complainant presented the said cheques for encashment and the said cheques came to be dishonoured under bank memo dated 22.11.2018 with reason “funds insufficient”. The complainant got issued legal notice on 28.11.2018 and it has been served on the accused on 04.12.2018. Inspite of the said notice the petitioner – accused has not paid the amount of cheques within 15 days and therefore, the complainant has initiated proceedings against the petitioner-accused for the offence under Section 138 of the N.I.Act. 4. The complainant has examined himself as PW.1 and got marked Exs.P1 to P8. The statement of the accused has been recorded under Section 313 of Cr.P.C. - 4 - NC: 2025:KHC:22640 CRL.RP No. 164 of 2023 HC-KAR The petitioner has not led any defence evidence. Learned Magistrate after hearing the arguments on both the sides has convicted the petitioner for the offence punishable under Section 138 of the N.I.Act and sentenced to pay fine of Rs.2,20,000/- and in default to undergo simple imprisonment for six months. The said judgment of conviction has been challenged before the Sessions Court in Crl.A.No.43/2022 and the same came to be dismissed on merits affirming the judgment of conviction passed by the trial Court. 5. Learned counsel for the petitioner would contend that the petitioner – accused has taken the defence that he had given blank signed cheques to one Praveen and he has misused the same through this complainant and he had no transaction with the complainant. He submits that the complainant has not produced any document to show the transaction. Without considering these aspects, the trial Court has convicted the petitioner-accused and - 5 - NC: 2025:KHC:22640 CRL.RP No. 164 of 2023 HC-KAR appellate Court has dismissed the appeal filed by the petitioner-accused. 6. Having heard learned counsel, the Court has perused the impugned judgments and trial Court records. 7. It is the specific case of the complainant that in order to pay the amount for materials supplied the petitioner–accused has issued two cheques for Rs.85,000/- each. The accused has admitted his signature on the cheques and therefore, presumption has to be drawn under Section 139 of the N.I.Act that the cheques are issued for discharge of liability. The said presumption is a rebuttable presumption. The standard of proof for rebutting the said presumption is preponderance of probability. 8. The petitioner-accused has not got issued any reply to the legal notice putting forth his defence. In the cross-examination of PW.1, the petitioner-accused has taken up the defence that his signed cheques given to - 6 - NC: 2025:KHC:22640 CRL.RP No. 164 of 2023 HC-KAR Praveen have been misused through this complainant. The said suggestion put to PW.1 in his cross-examination has been denied. What is admitted by PW.1 is that this petitioner-accused has been introduced by the said Praveen who is a police official. There is no any suggestion for what transaction the petitioner – accused has given the said cheques to the said Praveen. The said defence has not been established by petitioner-accused. The petitioner-accused has not entered the witness box and he has not summoned the said Praveen as a witness to examine him. The petitioner – accused failed to rebut the presumption drawn under Section 139 of the N.I.Act that the cheques are issued for discharge of debt or liability. As the presumption is not rebutted, it is not necessary for the complainant to establish the liability of the petitioner-accused. The Hon’ble Apex Court in the case of Rajesh Jain Vs. Ajay Singh reported in AIR Online 2023 SC 807 has observed thus: - 7 - NC: 2025:KHC:22640 CRL.RP No. 164 of 2023 HC-KAR “55. As rightly contended by the appellant, there is a fundamental flaw in the way both the Courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.” - 8 - NC: 2025:KHC:22640 CRL.RP No. 164 of 2023 HC-KAR 9. The Hon’ble Apex Court in another decision in the case of Kalamani tex and Another vs. P Balasubramanian, reported in (2021) 5 SCC 283 has held as under: “13. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these ‘reverse onus’ clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat in the following words: “18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the - 9 - NC: 2025:KHC:22640 CRL.RP No. 164 of 2023 HC-KAR source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant- accused.” 10. Considering the said aspect that the petitioner has failed to rebut the presumption, the trial Court has rightly convicted the petitioner for the offence punishable under Section 138 of N.I.Act. The appellate Court re- appreciated the evidence on record and has rightly confirmed the judgment of conviction passed by the trial - 10 - NC: 2025:KHC:22640 CRL.RP No. 164 of 2023 HC-KAR Court. There are no grounds to entertain this revision petition. Hence, the revision petition is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DKB List No.: 1 Sl No.: 42