The High Court
Case Details
- 1 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO. 1256 OF 2017 CRIMINAL REVISION PETITION NO. 1257 OF 2017 C/W IN CRL.RP NO. 1256/2017 BETWEEN: SMT S.N.VIJAYALAKSHMI W/O MR JWALAKUMAR AGED ABOUT 43 YEARS RESIDING AT NO.616, 10TH 'A' MAIN 3RD STAGE, 4TH BLOCK, BASAVESHWARA NAGAR BANGALORE-79 (BY SRI. P.N.HEGDE, ADVOCATE) AND: SMT PRATHIBA H A D/O H.P.APPAJI AGED ABOUT 32 YEARS, NO.871/A, 13TH MAIN, 5TH CROSS, HANUMANTHANAGAR BANGALORE-19 Digitally signed by REKHA R Location: High Court of Karnataka …PETITIONER (BY SMT.Y.P.VIJAYA VASANTHA KUMARI, ADVOCATE) …RESPONDENT - 2 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE ORDER DATED 25.10.2017 PASSED BY THE LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU IN CRL.A.NO.1510/2015 AND THE ORDER DATED 24.11.2015 IN PASSED BY THE XII ADDL.C.M.M., BENGALURU C.C.NO.7919/2014 AND CONSEQUENTLY ACQUIT THE PETITIONER/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT. IN CRL.RP NO. 1257/2017 BETWEEN: SMT S.N.VIJAYALAKSHMI W/O MR JWALAKUMAR AGED ABOUT 43 YEARS RESIDING AT NO.616, 10TH 'A' MAIN 3RD STAGE, 4TH BLOCK, BASAVESHWARA NAGAR BANGALORE-79
Legal Reasoning
(BY SRI. P.N.HEGDE, ADVOCATE) AND: SMT PRATHIBA H A D/O H.P.APPAJI AGED ABOUT 32 YEARS, NO.871/A, 13TH MAIN, 5TH CROSS, HANUMANTHANAGAR BANGALORE-19 ...PETITIONER ...RESPONDENT (BY SMT.Y.P.VIJAYA VASANTHA KUMARI, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE ORDER DATED 25.10.2017 PASSED BY THE LX - 3 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU IN CRL.A.NO.1511/2015 AND ORDER DATED 24.11.2015 PASSED BY THE XII ADDL.C.M.M., BENGALURU IN C.C.NO.7920/2014 AND CONSEQUENTLY ACQUIT THE PETITIONER/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT. THESE PETITIONS, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI ORAL ORDER In these two petitions filed under Section 397 r/w 401 Cr.P.C, accused has challenged his conviction and sentence imposed by the trial Court for the offence punishable under Section 138 of N.I Act, which came to be confirmed by the Sessions Court, by dismissing the appeal filed by her. 2. Since the parties are common and the facts leading to filing of complaint are common and the evidence lead by both parties are similar and involves common discussion, these two petitions are clubbed
Decision
together and disposed off by a common order. - 4 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 3. For the sake of convenience, parties are referred to by their ranks before the trial Court. 4. It is the case of the complainant that she and accused are neighbours. For her business purpose and legal necessity, accused borrowed hand loan of ₹4 lakhs from the complainant and towards discharge of the same issued 2 cheques for ₹2 lakhs each in favour of the complainant. When she presented the said cheque for realisation through her bank, they were returned dishonoured as "Account closed". She got issued legal notice to the accused. Instead of complying with the same, she has sent evasive reply and hence the complaint. 5. After due service of summons, accused has appeared through counsel and contested the case by pleading not guilty. - 5 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 6. In order to prove the allegations against the accused, in each case complainant has examined herself as PW-1 and the Manager of drawer bank as PW-2 and relied upon Exs.P1 to 11. 7. During the course of her statement under Section 313 Cr.P.C, the accused has denied incriminating evidence led by the complainant. 8. In fact, the accused has also led defence evidence in each case by examining herself as DW-1 and got marked Exs.D1 to 8. 9. The trial Court disbelieved the defence of the accused. Based on the evidence led by the complainant, the trial Court convicted accused and sentenced her to pay fine of ₹2,05,000/- each in default to undergo simple imprisonment for six months. - 6 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 10. Accused challenged her conviction and sentence before the Sessions Court. The Sessions Court also dismissed the appeals. 11. Aggrieved by the same, the accused is before this Court contending that there is totally non application of mind, misconception of facts and circumstances. Only after the complainant prove the existence of legally recoverable debt or liability, the presumption would arise. The complainant has also failed to prove her financial capacity. Accused had issued the blank cheques to the mother of complainant and she has got filed the complaints on behalf of her daughter. Any transaction exceeding ₹20,000/- is required to be made out through cheque. Viewed from any angle the impugned judgment and order under revision are not sustainable and pray to allow the petition and set aside the same. 12. In support of his argument learned counsel for accused has relied upon the following decisions: - 7 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 (i) Sanjay Mishra Vs. Kanishka Kapoor @ Nikki and Anr. (Sanjay Mishra)1 (ii) M.B.Rajasekhar Vs. Savithramma (Rajasekhar)2 (iii) John K. Abraham Vs. Simom C.Abraham and Anr. (John Abraham)3 13. On the other hand, learned counsel representing the complainant supported the impugned judgment and order passed by the trial Court and the Session Court. He would submit that not only the complainant has established her case, but has also demonstrated that accused has taken up false defence. There is no perversity in the conclusions arrived at by the Courts below and sought for dismissal of the petition also. 14. Heard arguments and perused the record. 15. It is an admitted fact that earlier complainant and accused were neighbours. Accused has denied of having borrowed hand loan from the complainant, but has 1 2009(4) Mh.L.J 3777 2 2011 SCC Online Kar 3895 3 (2014) 2 SCC 236 - 8 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 taken up a defence that she used to borrow hand loan from the mother of complainant and issued blank signed cheques and using two such cheques, she has got filed the complaint through her daughter. Having regard to the fact that the cheques are drawn on the account of the accused and it bears her signature and are dishonoured on the ground of "Account closed", presumption under Section 139 of the N.I Act comes into play, placing the initial burden on the accused to establish that they were not issued towards repayment of any legally recoverable debt or liability. As held by the Hon'ble Supreme Court in Rangappa Vs Sri Mohan (Rangappa)4, the presumption under Section 139 of the N.I Act is not that it is issued towards repayment of any debt of or other liability, but also that the debt is legally recoverable. Therefore, the contention of the accused that complainant is required to prove this aspect only after which the presumption would arise is not correct. In fact, in Basalingappa Vs Mudibasappa 4 (2010) 11 SCC 441 - 9 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 (Basalingappa)5, the Hon'ble Supreme Court held that only after the accused rebut the presumption, burden would shift on the complainant to prove her financial capacity. 16. Now it is to be seen whether the accused has rebutted the presumption, calling upon the complainant to prove her case. Consistent suggestions are being made to PW-1 that upto 2005–06, accused used to borrow hand loan from her mother ranging from ₹50,000 to 1,00,000/- and in fact, on one occasion, she borrowed ₹4 lakhs from the her mother and that she had also borrowed loan from the bank. It goes to show that the accused was in constant need of funds for her business. However, complainant has denied the said suggestion and that for this purpose, complainant used to give blank cheques by way of security to her mother. Of course, the accused has failed to establish that she used to borrow hand loan from the mother of complainant and had given blank cheques to her. 5 (2019) 5 SCC 418 - 10 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 16.1 If at all accused had issued blank cheques to the mother of complainant and even after repayment of the hand loans taken from her, she failed to return the blank cheques, there was no impediment for the accused to instruct the bank to stop payment. Though during the course of evidence, the accused has deposed that she had instructed the bank to stop payment of the cheques at Ex.P1, she has not produced the copy of the letter instructing the bank to stop payment. Moreover, the cheques in question are not dishonoured for "stop payment instruction". On the other hand, they are returned on the ground that the account is closed. In fact, the evidence of PW-2 Manager of the bank revealed that the bank has not received any such instruction. Ex.P11 is the stop payment enquiry screenshot, which reveal that the bank has not received any such instruction stopping the payment of Ex.P1 cheques. - 11 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 17. The defence of the accused that during 2005– 06, she borrowed hand loans from the mother of the complainant and had issued Ex.P1 cheques to her by way of security and that she has got filed the complaints through her daughter utilising the said cheque is falsified by the evidence of PW-2 that the subject cheques were supplied to the accused on 13.02.2012. It is evidenced by Ex.P10, which is the cheque enquiry screenshot of the account of accused. In fact as admitted by the accused, in the cheque leaves at Ex.P1, it is noted that the these cheques are having print ‘Print Limited, Hyderabad, 2011’’, which means that these cheques are printed during the year 2011. Thus the evidence of PW-2 that these cheques were supplied to the accused on 13.02.2012 falsify defence of the accused that Ex.P1 cheques were given by her to the mother of complainant prior to 2005–06. 18. From the analysis of the entire oral and documentary evidence on record makes it evident that accused was in constant need of funds for her business and as neighbour of the complainant, she borrowed - 12 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 ₹4,00,000/- and issued the subject cheques. Since the complainant is an employee, he had constant income. When the accused has failed to rebut the presumption, at the same time, the complainant has led sufficient evidence to establish not only her financial capacity, but also the fact that the cheques were issued towards repayment of the hand loan taken by the accused from her, the courts below are justified in holding that allegation against accused are proved. 19. In Sanjay Mishra referred to supra, on facts it was held that the complainant has failed to prove that the cheque in question was issued towards repayment of any legally recoverable debt or liability and as such the trial Court is justified in dismissing the complaint. However, it is not applicable to the case on hand. 20. In M.B.Rajashekar, referred to supra, on facts it was held by the Co-ordinate Bench of this Court that the complainant's case is suspicious and as such the trial - 13 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 Court is justified in dismissing his complaint. However, it is not applicable to the case on hand. 21. In John Abraham, referred to supra, the Hon'ble Supreme Court held that before drawing the presumption complainant is liable to prove basic facts. However, on appreciation of the oral and documentary evidence placed on record, the trial Court as well as the Sessions Court have rightly held that the basic facts are proved and the accused has failed to rebut the presumption. Therefore, this decision is not also applicable to the case on hand. 22. The trial Court as well as the Sessions Court have on proper appreciation of oral and documentary evidence placed on record have come to a correct conclusion that the allegations against accused are proved and convicted her. The findings of the trial Court as well as the Session Court are consistent with the evidence on record and this Court finds no perversity for interference. - 14 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 In fact, the sentence imposed by the trial Court is not only reasonable, but it could be held that it is on the lower side. In the result, the petition fails and accordingly the following: ORDER 1. Petitions filed by the accused under Section 397 r/w 401 Cr.P.C is hereby dismissed. 2. The impugned judgment and order dated 24.11.2015 in C.C.No.7919/2014 and C.C.No.7920/2014 on the file of XII ACMM, Bengaluru and judgment and order dated 25.10.2017 in Crl.A.No.1510/2015 and Crl.A.No.1511/2015 on the file of LX Addl.City Civil and Sessions Judge, Bengaluru are confirmed. - 15 - NC: 2025:KHC:15744 CRL.RP No. 1256 of 2017 C/W CRL.RP No. 1257 of 2017 3. The Registry is directed to return the trial Court as well as Sessions Court records along with a copy of this order forthwith. Sd/- (J.M.KHAZI) JUDGE RR List No.: 1 Sl No.: 48