The High Court
Case Details
- 1 - NC: 2025:KHC:14203 CRL.RP No. 1182 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 1182 OF 2024 BETWEEN: SRI. RAGHUKUMAR S/O RANGEGOWDA, AGED ABOUT 43 YEARS, R/AT VITALAPURA VILLAGE, KASABA HOBLI, ARSIKERE TALUK - 573 103 HASSAN DISTRICT. (BY SRI. JAGADEESH H.T, ADVOCATE) AND: SRI. KUMAR S/O NAJEGOWDA B AGED ABOUT 46 YEARS, R/AT B CHOWDENAHALLI VILLAGE, DANDIGANAHALLI HOBLI CHANNARAYAPATNA TALUK - 573 116 HASSAN DISTRICT …PETITIONER (RESPONDENT - SERVED) …RESPONDENT THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.PC (FILED U/S 438 R/W 442 BNNS) PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 02.04.2024 PASSED BY THE IV JUDGE, SITTING AT ADDL.DISTRICT AND SESSIONS CHANNARAYAPATNA HASSAN IN CRL.A.NO.137/2023 AND CONFIRMING THE JUDGMENT AND ORDER DATED 17.06.2023 PASSED BY THE ADDL.CIVIL JUDGE AND J.M.F.C AT Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:14203 CRL.RP No. 1182 of 2024 CHANNARAYAPATNA IN C.C.NO.41/2018 AND ALLOW THIS PETITION WITH COSTS THROUGHOUT. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL ORDER This revision petition is directed against the judgment and order passed in Crl.A.No.137/2023 dated 02.04.2024 by the IV Addl. District and Sessions Judge, Hassan, Sitting at Channarayapatna (hereinafter referred to as the 'learned Sessions Judge'), whereby the learned Sessions Judge
Facts
dismissed the appeal filed by the petitioner and confirmed the judgment of conviction and order of sentence passed in C.C.No.41/2018 dated 17.06.2023 by the Addl. Civil Judge and JMFC at Channarayapatna, Hassan (hereinafter referred to as the 'the trial Court'). 2. Parties are referred to as per their ranking before the trial Court. 3. Abridged facts of the prosecution case are that: The accused and the complainant were known to each other since many years. The accused borrowed a sum of - 3 - NC: 2025:KHC:14203 CRL.RP No. 1182 of 2024 Rs.5,00,000/- from the complainant in the month of October, 2017 for his household necessities. To discharge the said liability, the accused issued post dated cheque bearing No.234704 drawn on Syndicate Bank, Arasikere dated 17.11.2017 for a sum of Rs.5,00,000/- as per Ex.P1. As per the instructions by the accused, the complainant presented the said cheque for encashment, however the same dishonored with an endorsement 'Funds Insufficient and Stop Cheque Requisition Given'. The same was intimated to the accused by the complainant by issuing a legal notice dated 23.11.2017. The said notice served to the accused on 25.11.2017. Despite, the accused failed to reply to the notice or to repay the cheque amount. Hence, the complainant filed the private complaint under Section 200 of Cr.P.C against the accused for the offence punishable under Section 138 of the Negotiable Instrument Act (for short 'the N.I. Act') before the trial court. 4. In order to prove the case before the trial court, the complainant examined himself as PW.1 and got marked 5 documents as Exs.P1 to P5. However, the accused neither examined any witness nor got marked any documents on his behalf. - 4 - NC: 2025:KHC:14203 CRL.RP No. 1182 of 2024 5. After assessment of oral and documentary evidence, the trial Court convicted the accused for the offence punishable under Section 138 of the N.I. Act, as under: "ORDER The Accused is found guilty of an offence punishable under Section 138 of Negotiable Instrument Act. In exercise of powers vested under Section 255(2) of Cr.P.C. 1973, the Accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act. Further, the Accused is sentenced to pay fine of Rs.5,10,000/(Rupees Five Ten Thousand Only). In default, the Accused shall undergo Simple Imprisonment for the period of six months. It is clarified that the serving on default sentence will not absolve the Accused on payment of the fine amount. Further, it is held that after realizing the fine amount from the ccused, a sum of Rs.5,05,000/( Rupees Five Lakh Five Thousand Only) shall be paid to the Complainant as compensation under Section 357(1)(b) remaining Rs.5,000/(Rupees Five Thousand Only) shall be adjusted towards the expense of the State. of Cr.P.C. and the The bail bond and surety bond of the Accused stands cancelled." 6. Aggrieved by the said judgment, the accused approached the First Appellate Court in Crl.A.No.137/2023. The First Appellate Court, after re-assessment of the entire - 5 - NC: 2025:KHC:14203 CRL.RP No. 1182 of 2024 evidence on record dismissed the appeal filed by the accused by confirming the judgment passed by the trial Court. Challenge to the same is lis before this Court. 7.
Legal Reasoning
well as this Court in catena of judgments, if the accused is able to rebut the initial presumption under Sections 118 and 139 of the N.I. Act by placing probable defence that itself would suffice to disbelieve the case of the complainant. Accordingly, he prays to allow the revision petition. 9. I have given my anxious consideration on the arguments advanced by the learned counsel for the revision petitioner so also perused the materials and evidence placed before me. As could be gathered from the records, the signature of the accused in the cheque in question is undisputed. It is the specific defence of the accused that the - 7 - NC: 2025:KHC:14203 CRL.RP No. 1182 of 2024 said cheque-Ex.P1 was handed over to one Renuka, the relative of the complainant as security for different transaction. Later, she misused the said cheque for unlawful gain. The complainant cross-examined the accused at length by questioning his capacity to lend huge sum of Rs.5,00,000/- to the accused within one year from the date of demonetization. On careful perusal of the same, admittedly the loan transaction is of the year 2017 i.e., on 17.11.2017. According to the complainant, he advanced the loan amount of Rs.5,00,000/- by way of cash. Except the cheque-Ex.P1, no other documents were executed in respect of the alleged loan transaction between the complainant and the accused. It is also admitted by him that out of the loan amount, a sum of Rs.4,30,000/- was at his house and the said amount was earned by him at Mumbai and Gujarat prior to 2015. It is pertinent to mention at this juncture, the Union of India has demonetized the currency in the month of November, 2016. At that time, it was directed that the old currency notes shall be deposited before the Bank and thereafter, the individuals have to obtain a fresh currency notes from the Bank. Learned counsel for the revision petitioner placed the guidelines issued by the Union of India, as under: - 8 - NC: 2025:KHC:14203 CRL.RP No. 1182 of 2024 "The Reserve Bank of India stipulated that the demonetised banknotes could be deposited with banks over a period of fifty days until 30 December 2016. The banknotes could also be exchanged for legal tender over the counter at all banks. The limit for such exchange was ₹4,000 per person from 8 to 13 November, was increased to ₹4,500 from 14 to 17 November, and reduced to ₹2,000 from 18 to 25 November. The exchange of banknotes was stopped completely on 25 November, although the government had previously stated that the volume that of exchange would be date. International airports also facilitated an exchange of banknotes for foreign tourists and out- bound travellers, amounting to a total value of ₹5,000 per person. Fuel pumps, government hospitals, railway and airline booking counters, state-government recognised dairies and ration stores, and crematoriums were allowed to accept the demonetised banknotes until 2 December 2016. increased after Cash withdrawals from bank accounts were restricted to ₹10,000 per day and ₹20,000 per week per account from 10 to 13 November. This limit was increased to ₹24,000 per week from 14 November 2016. Limits on cash withdrawals from Current accounts/Cash credit accounts/ Overdraft accounts were withdrawn later. RBI increased the from Savings Bank account withdrawal to ₹50,000 from 20 earlier ₹24,000 on the February 2017 and then on 13 March 2017, it removed all withdrawal limits from savings bank accounts. limit A daily limit on withdrawals from ATMs was also imposed varying from ₹2,000 per day until 14 November, and ₹2,500 per 31 December. This limit was increased to ₹4,500 per day from 1 January, and again to ₹10,000 from 16 January 2017. From 17 November, families were to withdraw ₹250,000 for wedding allowed until day - 9 - NC: 2025:KHC:14203 CRL.RP No. 1182 of 2024 expenses. withdraw ₹25,000 per week against crop loans." permitted Farmers were to 10. On careful perusal of the above guidelines, the withdrawal of new currency notes from the Bank was restricted for a sum of Rs.10,000/-. In such eventuality, even if assuming that the accused withdrawn Rs.10,000/- on multiples time to the tune of Rs.5,00,000/-, there is no impediment for him to place the receipts for having withdrawn the amount. He admitted in his cross-examination that he is having two acres of agricultural land. However, he has not specifically stated his monthly/annual income from the said agricultural land. He also admitted that he is a BPL card holder. In such circumstance, there arises a doubt in the mind of this Court about the lending capacity of the complainant that too a huge sum of Rs.5,00,000/- soon after demonetization. No doubt, the accused had neither replied to the legal notice nor stepped into the witness box to prove his defence. Nevertheless, the defence taken by him is principally admitted by the complainant in the cross-examination. In such circumstances, as held by the Hon'ble Apex Court in catena of judgments, the accused is not duty bound to examine himself to prove his defence. If the - 10 - NC: 2025:KHC:14203 CRL.RP No. 1182 of 2024 accused is able to rebut the initial presumption under Sections 118 and 139 of N.I. Act with a probable defence that itself would suffice to disprove the case of the complainant. The material referred, probabalize the absence of legally existing debt by the accused to the complainant. For the foregoing discussion, I am of the considered view that the trial Court erred in convicting the accused for the offence punishable under Section 138 of the N.I. Act and the First Appellate Court also erred by confirming the said judgment. Hence, interference is required in the impugned judgment passed by the Courts below. Accordingly, I pass the following:
Arguments
I have heard Sri. Jagadeesh H.T., the learned counsel for the revision petitioner. Though the respondent served, but remained unrepresented. 8. The primary contention of the learned counsel for the revision petitioner/accused is that the trial Court and the First Appellate Court grossly erred while convicting the accused without appreciating the evidence on record in right perspective. He further contended that the defence of the accused is that the cheque in question along with two other cheques were issued by him to one Renuka, who is the relative of the complainant in the year 2012 for having obtained a sum of Rs.40,000/- hand loan from her. One of those cheque i.e., Ex.P1 is misused by the said Renuka by presenting the same through the complainant. He further contended that, in the cross-examination of complainant-PW.1, he categorically admitted that the loan amount was advanced by him in the year 2017 i.e., after demonetization of the currency notes and - 6 - NC: 2025:KHC:14203 CRL.RP No. 1182 of 2024 it cannot be believed at any stretch of imagination that he withdrew the huge sum of Rs.5,00,000/- from the Bank immediately after demonetization and paid the same to the accused. Even otherwise, he failed to place any such documents for having withdrawn huge amount of Rs.5,00,000/- from the Bank immediately. In such circumstance, the complainant totally failed to prove his lending capacity that too a sum of Rs.5,00,000/-. This defence of the accused is not appreciated by the trial Court so also the First Appellate Court. As per the settled position of law by the Hon'ble Apex Court as
Decision
ORDER i. The Criminal Revision Petition is allowed. ii. The conviction and order of sentence imposed by the Addl. Civil Judge and JMFC at Channarayapatna, Hassan in C.C.No.41/2018 dated 17.06.2023, which was confirmed by the First Appellate Court i.e., IV Addl. District and Session Judge, Sitting at Channarayapatna, Hassan in Crl.A.No.137/2023 dated 02.04.2024 is set-aside. - 11 - NC: 2025:KHC:14203 CRL.RP No. 1182 of 2024 iii. The revision petitioner/accused is acquitted for the offences punishable under Section 138 of the N.I. Act. iv. The bail bond executed by the revision petitioner/accused shall stand cancelled. v. The fine amount, if any, paid by the revision petitioner/accused shall be refunded to him on due identification. SD/- (RAJESH RAI K) JUDGE HKV List No.: 1 Sl No.: 20