SHRI. AMRUT GANPATRAO JADAV, AGE. 72 YEARS v. SMT. SAROJA

(PER: THE HON'BLE MR. JUSTICE K V ARAVIND) Heard Sri S.B. Hebballi, learned counsel for the revision petitioner-accused.

2. Notice served on respondent but no representation for the respondent.

3. This criminal revision petition is filed by the accused, challenging the judgment of conviction and order on sentence dated 04.07.2019 passed in C.C. No.376/2018 by the Court of the VII Judicial Magistrate First Class, Belagavi (for short ‘the trial Court’), and the judgment dated 03.02.2020 passed in Criminal Appeal No.235/2019 by the Court of the XI Additional Sessions Judge, Belagavi (for short ‘the appellate Court’).

4. The brief facts of the case as put forth by the complainant are as follows:

4.1 The complainant accused–revision petitioner are residents of the same locality and are known to each other. It is the case of the complainant that, in the year - 3 - NC: 2025:KHC-D:8090 CRL.RP No. 100079 of 2020 HC-KAR 2008, the accused approached the respondent-complainant seeking financial assistance for the development of land bearing R.S.No.200/D situated at Karalaga Village, Khanapur Taluk, Belagavi District, said to be owned by the accused and his brother. The accused sought a hand loan of Rs.5,00,000/- for the said purpose and assured the complainant that the amount would be repaid upon development of the land. Based on this assurance, the complainant advanced a sum of Rs.5,00,000/- the accused. Subsequently, when complainant demanded repayment on 10.06.2012, the accused issued a cheque bearing No.277767 dated 12.06.2012, drawn on Karnataka Vikas Grameen Bank, Belagavi, for a sum of Rs.5,00,000/- in favour of the complainant. Upon presentation of the said cheque by the complainant through her banker, the State Bank of India, the same was dishonoured with an endorsement 'Funds Insufficient’. Thereafter, the complainant issued a legal notice to the accused demanding payment of the cheque amount. The accused, in his reply, denied the liability and failed to comply with the demand. Hence, the complainant instituted a private complaint under Section 200 of the Code of Criminal Procedure. - 4 - NC: 2025:KHC-D:8090 CRL.RP No. 100079 of 2020 HC-KAR

5. Upon taking cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I. Act’) and on recording the sworn statement of the complainant, the trial Court issued summons to the accused. The accused appeared before the Court, pleaded not guilty, and claimed to be tried. In order to establish her case, the complainant examined herself as PW.1 and got marked 12 documents as Exhibits P1 to P12. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he denied all the incriminating evidence put to him. The accused examined himself as DW.1 and marked one document as Exhibit D1.

6. The trial Court on appreciation of the oral and documentary evidence available on record, convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him to pay a fine of Rs.5,12,000/-. In default of payment of fine, the accused was directed to undergo simple imprisonment for a period of 6 months.

7. Assailing the judgment of conviction and order of sentence passed by the trial Court, the accused preferred - 5 - NC: 2025:KHC-D:8090 CRL.RP No. 100079 of 2020 HC-KAR Criminal Appeal No.235/2019. The appellate Court, upon re- appreciation of the oral and documentary evidence available on record, dismissed the appeal and confirmed the judgment of conviction and order on sentence passed by the trial Court.

8. Sri S.B. Hebballi, learned counsel appearing for the petitioner, submits that the respondent–complainant had no source of income to advance a loan of Rs.5,00,000/–. It is contended that unless the financial capacity to lend the said amount is established, the liability cannot be treated as a legally enforceable debt so as to attract the provisions of Section 138 of the N.I. Act. It is further submitted that the respondent–complainant had stolen signed blank cheques from the house of the petitioner and that the cheque in question is a forged document, representing a misuse of such signed blank cheques. It is also contended that the petitioner was financially sound and had no necessity to borrow any amount.

9. Having considered the submissions of the learned counsel for the petitioner, the grounds urged, and upon perusal of the records, it is evident that the statutory presumption under Section 139 of the N.I. Act operates in favour of the - 6 - NC: 2025:KHC-D:8090 CRL.RP No. 100079 of 2020 HC-KAR complainant. Though the petitioner has cross-examined PW.1 and has examined himself as DW.1, the issuance of the cheque and the signature thereon have not been specifically denied or disproved. The defence set up by the petitioner is threefold: firstly, that the complainant had stolen signed blank cheques from his residence and misused the same; secondly, that the petitioner had no financial necessity to borrow any loan; and thirdly, that the complainant lacked the financial capacity to advance the alleged loan. However, all these defences are found to be untenable for the reasons discussed hereinbelow.

10. As per Section 139 of the N.I. Act, once the issuance of the cheque and the signature thereon are admitted, a presumption arises in favour of the holder of the cheque. The said presumption operates against the accused. It is for the accused to rebut the presumption by establishing a probable defence to show that no offence under Section 138 of the N.I. Act been committed. In the present case, it is admitted that the petitioner has neither lodged any complaint nor initiated any legal proceedings alleging that the cheque in question was stolen by the complainant. In the absence of any such action, - 7 - NC: 2025:KHC-D:8090 CRL.RP No. 100079 of 2020 HC-KAR the mere allegation that the cheque was stolen and misused remains unsubstantiated and cannot, by itself, constitute a probable defence sufficient to rebut the statutory presumption.

11. The alleged absence of necessity to borrow the loan amount cannot constitute a probable defence. Once the issuance of the cheque and the signature thereon are admitted, the liberal presumption under Section 139 of the N.I. Act operates against the accused. In such circumstances, the question of whether there was a financial necessity to borrow becomes irrelevant. Likewise, the issue of the complainant’s source of income need not be examined by this Court at this stage, as long as the statutory presumption continues to operate in favour of the complainant. It is settled provision of law that source of loan amount need not be examined in proceedings under Section 138 of the N.I. Act.

12. The trial Court, after considering the defence put forth by the petitioner that the complainant had broken open the lock of his house in the year 2008 and taken away all household articles along with signed blank cheques, which were allegedly misused thereafter, rejected the said defence. The - 8 - NC: 2025:KHC-D:8090 CRL.RP No. 100079 of 2020 HC-KAR trial Court observed that although the allegation of theft of cheques was reiterated by the petitioner in his examination-in- chief and during cross-examination, and it was claimed that a police complaint had been filed, no documentary evidence was produced to substantiate the same. The trial Court, while referring to Ex.P7-the agreement entered into between the petitioner and the respondent held that the petitioner had admitted the loan transaction. Further, upon examining Exs.P9 to P11, the trial Court found that the accused had availed loans from various banks and financial institutions during the years 2005 and 2006, thereby rejecting the contention that he had no financial requirement to raise a loan. The trial Court on comprehensive consideration of the evidence on record, concluded that the accused had failed to rebut the statutory presumption under Section 139 of the N.I. Act. Based on the evidence, the trial Court held the accused guilty of the offence punishable under Section 138 of the said Act. The appellate Court, on re-appreciation and re-assessment of the evidence, confirmed the findings of the trial Court and dismissed the appeal. - 9 - NC: 2025:KHC-D:8090 CRL.RP No. 100079 of 2020 HC-KAR

13. This Court has also perused the evidence on record and the findings recorded by both the Courts below. Upon appreciation and close scrutiny of the material on record, it is evident that the petitioner issued the cheque in question and failed to honour the same, thereby attracting the provisions of Section 138 of the N.I. Act. The concurrent findings recorded by both the Courts are based on a sound appreciation of the evidence and are in consonance with the statutory presumption under Section 139 of the Act. Though the petitioner has vehemently urged various contentions, no demonstrable or compelling ground is made out to warrant interference with the concurrent findings.

14. Accordingly, the Criminal Revision Petition stands dismissed. DDU CT: UMD List No.: 1 Sl No.: 15 Sd/- (K V ARAVIND) JUDGE