The High Court
Case Details
- 1 - NC: 2025:KHC:21138 CRL.RP No. 4 of 2018 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 4 OF 2018 BETWEEN: SRI M V UMESH S/O LATE MUNIVENKATAPPA AGED ABOUT 55 YEARS RESIDING AT No.2/3 4TH MAIN ROAD CHINNAPPA GARDEN BENSON TOWN POST BANGALORE - 560 046. …PETITIONER (BY SRI SOMANNA B A, ADVOCATE) Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA AND: 1. SRI R MADHU S/O LATLE RATHNA AGED ABOUT 45 YEARS SINCE DEAD BY HIS LRs.
Legal Reasoning
1a. SMT. M VIJAYA AGED ABOUT 54 YEARS W/O LATE R MADHU @ MADHU PRAKASH 1b. SRI DINESH KUMAR M AGED ABOUT 34 YEARS S/O LATE R MADHU @ MADHU PRAKASH. 1c. SRI DEEPAK KUMAR M AGED ABOUT 32 YARS S/O LATE R MADHU @ MADHU PRAKASH. - 2 - NC: 2025:KHC:21138 CRL.RP No. 4 of 2018 HC-KAR ALL ARE RESIDING AT No.27, VIDYA SAGAR GUPTA LAYOUT, TANISANDRA, SARAIPALYA BENGLAURU – 560 077. …RESPONDENTS (BY SRI V B MANJUNATH GOWDA, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 06.12.2017 PASSED BY THE XXVIII ADDITIONAL CITY CIVIL IN CRL.A.No.25053/2016 AND JUDGMENT DATED 17.08.2016 PASSED BY THE XIV ADDL.C.M.M., BENGALURU IN C.C.No.26929/2012 AND ETC., BENGALURU SESSIONS JUDGE, AND THIS PETITION COMING ON FOR HEARING 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 06.12.2017 passed in Crl.A.No.25053/2016 by the XXVIII Additional City Civil Judge, Bangalore where under the judgment of conviction of the petitioner - accused dated 17.08.2016 passed in C.C.No.26929/2012 by the XIV Additional Chief Metropolitan Magistrate, Bengaluru convicting the petitioner for the offence punishable under Section 138 of the N.I.Act has been confirmed. - 3 - NC: 2025:KHC:21138 CRL.RP No. 4 of 2018 HC-KAR 2. Heard learned counsel for the petitioner and learned counsel for the respondent. 3. The case of the respondent - complainant is that the petitioner - accused is well acquainted with him since more than 10 years. The petitioner - accused approached the respondent – complainant seeking hand loan of Rs.1,00,000/- and the complainant had paid Rs.1,00,000/- to the petitioner – accused in the month of October, 2010 as hand loan and he had promised to repay the same within one year and as security he has also executed loan agreement dated 10.10.2010. In order to repay the said amount, the petitioner – accused issued a cheque bearing No.217761 dated 08.11.2011 and another cheque bearing No.217762 dated 08.12.2011 for Rs.50,000/- each drawn on Corporation Bank, Frazer Town Branch, Bengaluru. 4. On presentment, the said cheques came to be dishonoured for the reason “funds insufficient” by memo dated 14.12.2011. Thereafter the complainant got issued - 4 - NC: 2025:KHC:21138 CRL.RP No. 4 of 2018 HC-KAR legal notice to the accused on 06.01.2012 and it came to be served to the accused on 07.01.2012. Inspite of service of notice, the petitioner has not repaid the amount of cheques within 15 days. Thereafter the complainant has filed complaint against the petitioner for the offence under Section 138 of the N.I.Act. The petitioner examined himself as PW.1 and got marked Exs.P1 to P10. He also examined one more witness as PW.2. The statement of the accused has been recorded under Section 313 of Cr.P.C. Petitioner – accused has been examined as DW.1 and got marked Ex.D1. 5. The trial Court after hearing the arguments on both sides convicted the petitioner for the offence under Section 138 of the N.I.Act. The said judgment of conviction has been challenged by the petitioner – accused before the Sessions Court in Crl.A.No.25053/2016. The said appeal came to be dismissed. The petitioner has challenged the judgment passed in the said appeal in this revision petition. - 5 - NC: 2025:KHC:21138 CRL.RP No. 4 of 2018 HC-KAR 6. Learned counsel for the petitioner would contend that the respondent – complainant was doing auto consultancy business and this petitioner approached him for purchase of Autorickshaw for Rs.1,30,000/- and he has given cash of Rs.30,000/- as advance and also given two cheques of Rs.50,000/- each. He further contends that the respondent – accused has failed to make arrangement for sale of Autorickshaw to the petitioner and he repaid Rs.30,000/- by cheque and failed to return two cheques. The said defense has been put forth to PW.1 in the cross- examination and he has denied the same. DW.1 in his evidence has stated regarding his defence. The petitioner has also produced Ex.D1, letter given by him to the Bank for stop payment of said two cheques and it is dated 16.11.2011. In the said letter the defence of the petitioner has been stated. Considering all these aspects the petitioner has rebutted the presumption. The respondent – complainant has failed to establish execution of loan agreement and borrowing of Rs.1,00,000/-. Without - 6 - NC: 2025:KHC:21138 CRL.RP No. 4 of 2018 HC-KAR considering these aspects, the trial Court had convicted the petitioner for the offence under Section 138 of the N.I.Act. 7. Learned counsel for the respondent would contend that the petitioner has not established his defence. The cheques are not dishonoured for stop payment and Ex.D1 has been marked subject to objection. The petitioner has not examined any bank official to establish Ex.D1. The presumption is not rebutted and the trial Court has rightly convicted the petitioner for the offence under Section 138 of the N.I.Act and the appellate Court rightly confirmed the said judgment of conviction by re-appreciating the evidence on record. 8. Having heard learned counsels, this Court has perused the impugned judgment and trial Court records. 9. The petitioner – accused has admitted his signature on Exs.P1 and P2 – cheques and therefore, the presumption has to be drawn that the cheques are issued - 7 - NC: 2025:KHC:21138 CRL.RP No. 4 of 2018 HC-KAR for discharge of debt. The said presumption is rebuttable presumption. The standard of proof for rebutting the presumption is preponderance of probability. 10. It is the defence of the petitioner – accused that respondent – complainant was doing auto consultancy business and this petitioner approached him for purchase of Autorickshaw and gave Rs.30,000/- as advance and issued two cheques for Rs.50,000/- each towards the said transaction. The said transaction has not been materialized and the respondent – complainant has returned Rs.30,000/- by self-cheque and failed to return two cheques. The defence has been suggested in the cross-examination of PW.1 and the same has been denied by him. 11. DW.1 in his chief-examination has stated that respondent – complainant has returned the amount of Rs.30,000/- to him through cheque. The petitioner filed application under Section 91 seeking direction to the - 8 - NC: 2025:KHC:21138 CRL.RP No. 4 of 2018 HC-KAR respondent – complainant to produce his bank account pass book. The respondent – complainant has produced his bank account pass book. But the same was not marked. Even on perusal of the entries in the said pass book of respondent – complainant, there is no entry of encashing any cheque of Rs.30,000/- after 10.10.2010 till two cheques are dishonoured. Therefore, the petitioner has failed to establish that there was a transaction for purchase of Autorickshaw and advance amount of Rs.30,000/- has been returned by way of cheque as the said transaction could not materialize. As the said defence is not established, the petitioner failed to rebut the presumption drawn under Section 139 of the N.I.Act that the cheque is issued for discharge of debt. As the said presumption is not rebutted, the respondent need not prove the transaction and more so, the respondent has produced the loan agreement dated 10.10.2010 entered into by the petitioner and respondent wherein there is specific mention of petitioner borrowing of Rs.1,00,000/- - 9 - NC: 2025:KHC:21138 CRL.RP No. 4 of 2018 HC-KAR from the respondent. The signature on the said document is also admitted by the petitioner even though execution of the said document is denied. Considering all these aspects, the trial Court has rightly convicted the petitioner for the offence under Section 138 of the N.I.Act by a reasoned judgment passed by the trial Court. The appellate Court re-appreciated the evidence on record and confirmed the judgment of conviction passed by the trial Court. There are no grounds made out for setting aside the judgments passed by the trial Court and the appellate
Decision
Court and acquit the petitioner. In the result, the revision petition is dismissed. Petitioner – accused is granted one month’s time from this day to deposit remaining fine amount. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DKB List No.: 1 Sl No.: 24