The High Court
Case Details
- 1 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 1199 OF 2017 BETWEEN: SRI K PONNASARU S/O R KANNAN AGED ABOUT 39 YEARS RESIDING AT QTRS. No.P-381/1 OLD M.H AREA GE(M) AF COMPLEX, JALAHALLI BENGALURU - 560 013. …PETITIONER Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA (BY SRI KRISHNA S B, ADVOCATE) AND: SRI C RAVI S/O CHINNATHAMBI RESIDING AT No.QTR.T-445/4 7TH CAMP, 410 AIR FORCE STATION JALAHALLI EAST BENGALURU - 560 013. …RESPONDENT (BY SRI P M NATARAJ, ADVOCATE SRI B NAVEEN KUMAR, ADVOCATE - ABSENT) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED 04.09.2017 PASSED BY THE LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN CRL.A.No.208/2016 AND THE ORDER DATED 27.01.2016 PASSED BY XII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE IN C.C.No.21799/2014 AND ETC. - 2 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR 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 04.09.2017 passed in Crl.A.No.208/2016 by the LX Additional City Civil and Sessions Judge, Bengaluru where under the judgment of conviction and order of sentence dated 27.01.2016 passed in C.C.No.21799/2014 by the XII ACMM, Bengaluru convicting the petitioner-accused for the offence under
Legal Reasoning
2. Heard learned counsel for the petitioner. Learned counsel for the respondent absent. Learned counsel for the respondent was also absent on previous date. 3. The case of respondent – complainant is that complainant and accused are well acquainted with each other since both of them are serving in Air Force. The accused approached the complainant during the first week - 3 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR of January, 2014 for advancement of loan amount of Rs.8,00,000/- and complainant has advanced loan of Rs.8,00,000/- to the accused. The accused agreed to repay the amount borrowed and issued post dated cheque bearing No.379018 dated 23.06.2014 drawn on State Bank of India, Jalahalli Branch, Bengaluru. The complainant presented the said cheque for encashment through his banker and the said cheque came to be dishonoured with shara as “insufficient funds” under bank memo dated 23.06.2014. The complainant informed the said fact to the accused. The accused requested the complainant to present the said cheque again. The complainant again presented the said cheque on 06.07.2014 and 07.07.2014, but the said cheque again was dishonoured with shara as “funds insufficient”. Thereafter the complainant had informed the said fact to the accused. But the accused did not responded to the same. The complainant got issued legal notice dated 15.07.2014 and the said notice has been served on - 4 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR 16.07.2014. The accused has issued evasive and untenable reply to the said legal notice and has not repaid the amount borrowed to the complainant. Therefore, the complainant has initiated the proceedings against the petitioner – accused for the offence under Section 138 of the N.I.Act. 4. The complainant examined himself as PW.1 and got marked Exs.P1 to P12. The statement of the accused has been recorded under Section 313 of Cr.P.C. The petitioner-accused examined himself as DW.1 and got marked Exs.D1 to D4. The trial Court after hearing arguments on both sides has convicted the petitioner for the offence under Section 138 of the N.I.Act and sentenced him to pay fine of Rs. 8,05,000/- and in default to undergo simple imprisonment for six months. 5. The said judgment of conviction has been challenged by the accused before the Sessions Court in Crl.A.No.208/2016 and the appeal came to be dismissed - 5 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR on merits affirming the judgment of conviction passed by the trial Court. 6. Learned counsel for the petitioner would contend that even though the signature on the cheque is admitted, the petitioner-accused has taken up the defence in his reply notice Ex.P12 that the cheque Ex.P1 has been given as a security for earlier loan transaction in the year 2011 when he borrowed Rs.50,000/- from the complainant. He submits that complainant – PW.1 has admitted in his cross-examination that the previous loan which he had given to the accused was in the year 2011 and the accused has repaid the same. He further submits that cheques which are having subsequent serial numbers to that of Ex.P1 have been encashed during the year 2011 and the same can be considered on perusal of Ex.D3, Bank pass book of the accused and Ex.D4, counterfoils of the cheques contained in the cheque book. He submits that there is an entry in the said Ex.D4, cheque book that cheque bearing No.379018 has been issued on 17.01.2011 - 6 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR to C.Ravi (respondent-complainant herein). The amount of cheque is not mentioned in Ex.D4. The trial Court and the appellate Court have failed to correctly appreciate the entries made in Exs.D3 and D4 to hold that the defence of the accused has been established. Considering the said evidence the accused has established his defence and rebutted the presumption drawn under Section 139 of the N.I.Act. As the presumption is rebutted, the complainant has to prove the transaction. The complainant has not produced any other material to establish the transaction of lending Rs.8,00,000/- to the petitioner – accused and issuance of cheque for making payment of the said amount borrowed. With this he prayed for allowing this revision petition and acquit the petitioner-accused. 7. Having heard the learned counsel for the petitioner, the Court has perused the impugned judgments and trial Court records. 8. It is the specific case of the respondent– complainant that petitioner–accused borrowed a sum of - 7 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR Rs.8,00,000/- during first week of January 2014 and issued cheque bearing No.379018 dated 23.06.2014. In reply to the legal notice which is at Ex.P12, the accused has taken the defence at para – 3 and 4 which reads thus: “3. My client further instructs me to reply to you that, on 17th January 2011 had borrowed a sum of Rs.50,000/- (Rupees Fifty Thousand only) at the rate of 4% per month and my client was paying the monthly interest promptly. At the time of availing the said hand loan my client had issued a unfilled/blank signed cheque to your client as security your client had insisted. 4. My client further instructs me to reply your legal notice that during the month of August 2011 he had cleared the entire amount and asked your client to return the cheque in question. At that time your client had assured my client that he would return the same as he had misplaced somewhere. My client had persisted your client to hand bank the said cheque. Your client being superior to him in, had assured my client that since he had - 8 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR misplaced the said he would return the same without fail as soon as he finds it. Believing the words and assurance of your client my client had stopped asking for the cheque as he had faith in your client.” 9. The said defence has been put to PW.1 in his cross-examination wherein at one stretch PW.1 has denied the said suggestion. Thereafter, PW.1 has given answer to the said suggestion as under: “It is not correct to suggest that, I have given Rs.50,000/- handloan only to the accused on 30.08.2011 as per the pass book now shown to me. Witness volunteers that, it was the previous loan I have paid to the accused in the year 2011 and he has repaid the same.” 10. Considering the said voluntary statement made by PW.1, it is clear that there was previous transaction between the complainant and the accused and the accused borrowing loan from the complainant in the year 2011. It is the defence of the accused that when the accused - 9 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR borrowed loan from the complainant in the month of August, 2011, he has issued cheque Ex.P1 as a security for the amount borrowed. Therefore, it is to be considered whether the cheque Ex.P1 has been issued in the year 2011 as contended by the petitioner – accused. 11. Ex.D4 is the cheque book of the petitioner – accused wherein there are entries regarding cheque number, date and in whose favour they are issued. There is an entry that cheque bearing No.379018 is issued on 17.01.2011 in favour of C.Ravi. On considering the serial number of the said cheque, it is Ex.P1 – cheque and the said C.Ravi is the respondent – complainant herein. The amount of said cheque has not been mentioned in Ex.D4 which indicates that cheque issued in January 2011 in favour of respondent – complainant is a blank signed cheque. There is also an entry in Ex.D4, Cheque Book that cheque No.379020 dated 17.06.2011 has been issued in favour of St.Claret School for Rs.4,500/- and cheque bearing No.379022 dated 15.10.2011 has been issued to - 10 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR St.Claret school for Rs.4,530/-. These two cheques considering their serial number, are subsequent to the serial number of Ex.P1 – Cheque. In Ex.D3 – pass book there is an entry dated 22.06.2011 that cheque bearing No.379020 for Rs.4,500/- has been encashed by Claret. There is another entry in the said Ex.D3 – pass book dated 19.10.2011 wherein the cheque bearing No.379022 for Rs.4,530/- has been encashed by Claret. The said two entries in Ex.D3 – pass book indicate that two cheques bearing subsequent serial number to that of Ex.P1 – cheque have been issued in the year 2011 and they have been encashed. This probabalises the defence of the petitioner – accused that Ex.P1 – cheque has been issued to the complainant during the year 2011 and as per Ex.D4 – pass book, the said date is 17.01.2011. Since the amount is not mentioned in front of entry regarding cheque number 379018 in Ex.D4, it indicates that blank cheque has been issued in favour of complainant – C.Ravi by petitioner – accused. As the complainant – PW.1 has - 11 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR admitted that petitioner has borrowed money from him during the year 2011 and considering the entries in Ex.D3 – pass book and Ex.D4 – cheque book, establishes the defence of the petitioner – accused that Ex.P1 – cheque has been issued as a security for the amount borrowed in the year 2011. The petitioner – accused has established his defence and rebutted the presumption drawn under Section 139 of the N.I.Act. As the presumption has been rebutted, it is for the respondent – complainant to establish the transaction of borrowing Rs.8,00,000/- and issuance of cheque-Ex.P1 for payment of said amount borrowed in a sum of Rs.8,00,000/-. The respondent – complainant has not placed any document/evidence on record to establish the said transaction of borrowing Rs.8,00,000/- by the petitioner – accused during January, 2014. Therefore, it cannot be said that Ex.P1 – cheque has been issued for discharge of said debt. Without considering all these aspects, the trial Court and appellate Court have erred in passing the impugned judgments. - 12 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR Therefore, the said judgments requires to be set-aside and the petitioner-accused is required to be acquitted. In the result, the following:
Decision
ORDER i) ii) The criminal revision petition is allowed. The judgment of conviction dated 27.01.2016 passed in C.C.No.21799/2014 by the XII ACMM, Bengaluru convicting the petitioner for the offence punishable under Section 138 of the N.I.Act and sentence passed thereon is set- aside. iii) The judgment dated 04.09.2017 passed in Crl.A.No.208/2016 by the LX Additional City Civil and Sessions Judge, Bengaluru is also set- aside. iv) Petitioner – accused is acquitted for the offence under Section 138 of the N.I.Act. - 13 - NC: 2025:KHC:22471 CRL.RP No. 1199 of 2017 HC-KAR v) Petitioner – accused is entitled to refund of amount deposited by him before the trial Court. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DKB List No.: 1 Sl No.: 30