- 1 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO. 147 OF 2021 (397(Cr.PC) / 438(BNSS)) BETWEEN: M/S V.G.SHETRU BY ITS PARTNER B.S. KRISHNAMURTHY, S/O V. G. SATHYANARAYANA SETTRU, AGED ABOUT 70 YEARS, OCC: BUSINESS, R/O IN FRONT OF SHARADAMMA RUDRAPPA KALYANA MANTAPA, HOLALKERE ROAD, CHITRADURGA TOWN-577 501. …PETITIONER (BY SRI. KANTHARAJAPPA M G, ADVOCATE) AND: J.K.RAJASHEKHAR S/O J. S. ARIBASAPPA, AGED ABOUT 63 YEARS, OCC: AGRICULTURIST R/O BASAVANAGUDI ROAD, HOLALKERE TOWN-577 526. …RESPONDENT (BY SRI.M.R.HIREMATHAD, 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 PASSED BY THE LEARNED 1ST ADDL. DISTRICT AND Digitally signed by REKHA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 SESSIONS JUDGE, CHITRADURGA IN CRL.APPEAL NO.37/2020 DATED: 02.01.2021, AND THE ORDER PASSED IN CC.NO.465/2018 DATED: 28/02/2020, BY THE LEARNED SENIOR CIVIL JUDGE & JMFC, HOLALKERE AND ACQUIT THE PETITIONER FROM THE CHARGES LEVELED AGAINST HIM, BY ALLOWING THIS CRIMINAL REVISION PETITION. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI ORAL ORDER In this petition filed under Section 397 r/w 401 Cr.P.C, petitioner who is accused has challenged his conviction and sentence for the offence punishable under Section 138 of N.I. Act passed by the trial Court which came to be confirmed by the Sessions Court by dismissing the appeal filed by him. 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. Complainant filed the complaint alleging that he and accused are known to each other since 10 years. - 3 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 Accused is running a petrol/diesel bunk under the name and style of M/s V.G.Settru, a partnership firm. Accused is the managing partner. On 06.07.2014, accused borrowed ₹2 lakhs from the complainant to meet his business and other necessity. Agreeing to repay the same within three months. He issued 2 post dated 06.10.2014 cheques for ₹1,00,000/- each. Complainant presented the cheques for encashment on 14.10.2014 through his account. However, they were returned dishonoured on 27.10.2014 as funds insufficient. Complainant got issued legal notice dated 14.11.2014 through RPAD. However, accused has sent an evasive reply. Without any alternative, complaint is filed. 4. Accused put in his appearance and contested the case by pleading not guilty. 5. In order to establish the allegations against the accused, complainant examined himself as PW-1 and got marked Ex.P1 to 10. - 4 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 6. During the course of his statement under Section 313 Cr.P.C, accused has denied the incriminating evidence led by the complainant. 7. In fact, accused has led the defence evidence by examining three witnesses as DWs-1 to 3 and got marked Exs.D1 and 2. 8. Accepting the contention of the complainant, the trial Court convicted the accused and sentenced him to pay fine with the default sentence of imprisonment. Compensation is also awarded to the complainant. 9. Aggrieved by the same, the accused approached the Sessions Court in Crl.A.No.37/2020. However, it came to be dismissed, confirming the judgment and order of the trial Court. 10. Aggrieved by the concurrent findings, accused has filed this petition contending that they are illegal - 5 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 besides being erroneous. Both Courts have grossly erred in believing the version of PW-1, though there are no sufficient material to establish the same. The Courts below have erred in not appreciating testimonies of DWs-1 to 3 and the documents at Exs.D1 and 2. In the absence of firm and other partners, the complaint is not maintainable. The RBI circular require that transaction exceeding ₹20,000/- to be carried out through cheque and in the light of the same, the contention of the complainant that he has paid ₹2 two lakhs in cash is not trustworthy. Both Courts have erred in drawing the presumption in favour of the complainant and placing the initial burden on the accused. Viewed from any angle, the impugned judgment and order are not sustainable and hence, the petition. 11. On the other hand, learned counsel for complainant supported the impugned judgment and order passed by the trial Court as well as the Sessions Court and sought for dismissal of the petition. - 6 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 12. Heard arguments of both sides and perused the record. 13. It is pertinent to note that Ex.P1 and 2 cheques are drawn on the account of M/s V.G.Settru, a partnership firm. The first and foremost objection raised by the accused is that the firm is not made a party, which is not correct. The accused is a firm represented by B.S.Krishnamurthy, who is the managing partner and signatory to the cheque. DW-1 is the Manager of the Merchant's Sahakara Souharda Bank Ltd on which Exs.P1 and P2 belong are drawn. During his cross-examination, it is elicited that though the account could be operated by any one of the partner, it is B.S.Krishnamurthy who is operating the said account. Since accused is the managing partner and has signed the cheques, rightly he is shown as representing the accused. 14. As per Section 141 of the N.I Act in case of offences by the company, which includes partnership firms, every person who, at the time offence was - 7 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 committed was in charge of and responsible as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. Accordingly, if the other partners are not made party, still the complaint is maintainable against the person who is the managing partner and drawer of the cheques. It is not necessary that all the partners who are, in charge and responsible should be made party. In the present complaint, the complainant is satisfied by the fact that the managing director is arraigned as accused representing the firm. In order to arraign the other partners as accused, it would be necessary for the complainant to prove that they were also in charge and responsible for conduct of the business. Having found that the B.S.Krishnamurthy has borrowed the loan and in his capacity as the managing partner has signed the cheque, the complainant has rightly made him accused and the complaint is for perfectly maintainable. - 8 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 15. The next defence of the accused is that the firm is well to do and having flourishing business, and there was no need for it or the managing director to borrow any loan from the complainant. In fact, PW-1 is cross- examined on this aspect. At page-6, para-7, PW-1 has stated that accused is running a petrol bunk since 50–60 years. He has denied the suggestion that accused never had the necessity of borrowing ₹2 lakhs from the complainant. DW-2 Rajivalochana and DW-3 Manjunatha are the employees of petrol bunk run by the accused. They are examined to depose that complainant was a friend of one Gurunath Gupta who was working in the petrol bunk and was visiting the bank to meet him and at that time to cheques went missing and even though accused made enquiries, it could not be found. 16. Complainant has extensively cross-examined these two witnesses and elicited the fact that earlier accused had a flourishing business of running the petrol bunk and in fact he had 50 tankers and 2 Petrol bunks. It - 9 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 is also elicited through the cross-examination of DW-2 that after partition with his brothers, the accused was left with only 10 tankers and one petrol bunk, and it was running in loss and accused tried to run the business by securing finance. When suggested that due to loss suffered by the accused, he sold the 10 tankers fallen into his share, DW- 2 has deposed that accused started mining business and converted the tankers into mining lorries. However, the accused has not led any evidence to establish this fact. 17. DW-2 has admitted that when accused suffered loss, the petrol bunk was run by one Nizam of Chitradurga for sometime. The sum total of cross examination of DWs- 2 and 3 establish the fact that though initially accused had flourishing business, after partition he suffered heavy loss and in order to run the petrol bunk, he was in need of money. In fact, a suggestion is made to PW-1 that he is not the one who had given the loan, without making further elaboration. It reads "£Á£ÀÄ C¸À° ¸Á® PÉÆlÖ ªÀåQÛ (C®è) JAzÀgÉ ¸ÀjAiÀÄ®è". It indicates that accused was trying to make - 10 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 a suggestion that the loan was taken from someone else and complaint is filed through the complainant. 18. The accused has also taken a defence that complainant has committed theft of cheques and on the basis of it filed the complaint. It is pertinent to note that the accused has not chosen to enter the witness box and give evidence with regard to the facts known to him. Rather, he has chosen to examine DWs-2 and 3. They have given evidence to the effect that complainant used to visit the petrol bunk run by the accused to meet one Gurunath Gupta, who was working in the said petrol bunk and at that time, two cheques went missing. In fact, in the reply notice at Ex.P10, the accused has made specific allegations that it is the complainant who committed theft of cheques in question and he had confronted him and at that time, a quarrel took place between them. 19. As admitted by DWs-2 and 3, accused has not filed any complaint with regard to the theft of the cheques. - 11 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 At least he could have instructed the bank to stop payment of the cheques on the ground that they are stolen. It cannot be believed that even after coming to know that certain cheques have been stolen, accused has not taken precaution to stop their payments. Looking to the conduct of the accused in not taking any steps to stop payment of the alleged stolen cheques, this Court has no hesitation to hold that accused has taken a false defence and failed to prove the same. 20. Accused has also taken a defence that complainant had no financial capacity to lend ₹2 lakhs to the accused. Having regard to the presumption under Section 139 of the N.I. Act, the initial burden is on the accused to rebut the presumption, only after which the burden would shift on the complainant to prove his financial capacity. In fact in Basalingappa Vs Mudibasappa (Basalingappa)1, it is held by the Supreme Court that the burden to prove his financial capacity would shift on the 1 (2019) 5 SCC 418 - 12 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 complainant only after the accused rebut the presumption. In fact, during the course of his cross-examination, the complainant has consistently deposed that he is a farmer owning lands. He is also into brandy sale and movie distribution. 21. The trial Court as well as the Sessions Court on proper appreciation of oral and documentary evidence on record have rightly held that the allegations against accused are proved and convicted and sentenced him. There is no perversity in the conclusions arrived at by them calling for interference by this Court. In the result, the petition fails and accordingly the following: ORDER 1. Petition filed by the accused under Section 397 r/w 401 Cr.P.C is hereby dismissed. 2. The impugned judgment and order dated 28.02.2020 in CC.No.465/2018 on the file - 13 - NC: 2025:KHC:12120 CRL.RP No. 147 of 2021 of Senior Civil Judge and JMFC, Holalkere and judgment and order dated 02.01.2021 in Crl.A.No.37/2020 on the file of I Addl.District and Sessions Judge, Chitradurga are confirmed. 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.: 55