- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.125 OF 2021 BETWEEN: SMT. A.SARALA GUPTA W/O LAKSHMINARAYANA GUPTA AGED ABOUT 72 YEARS R/AT NO.5, KALPAVRUKSHA NILAYA VEERANNA LAYOUT VIDYARANYAPURA BANGALORE-560 097 ...PETITIONER (BY SRI.HIREMATH SIDDALINGAYYA SHARANAYYA, ADVOCATE) AND: SRI PRASHANTH R S/O S M RAGHAVENDRA RAO AGED ABOUT 50 YEARS, R/AT NO.3, 8TH MAIN 6TH CROSS, J C NAGAR BANGALORE-560 086 …RESPONDENT (BY SRI.B.O.CHANDRASHEKAR, 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 JUDGMENT DATED 31.10.2019 PASSED BY THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-53), BENGALURU IN CRL.A.NO.2301/2018 AND SAME WAS CONFIRMED THE JUDGMENT AND SENTENCE PASSED BY THE XIX ADDL.C.M.M, BENGLAURU IN C.C.NO.20783/2017 DATED 12.10.2018. - 2 - THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 21.04.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI CAV ORDER In this petition filed under Section 397 r/w 401 of the Code of Criminal Procedure, petitioner who is accused has challenged her conviction and sentence imposed by the trial Court for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'N.I. Act'), which came to be confirmed by the Sessions Court, by dismissing the appeal filed by her. 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. Complainant filed a complaint against the accused alleging that he came to be acquainted with accused through his aunt. At the request of accused, he lent a sum of ₹3,50,000/- to meet the legal requirement of accused on 20.09.2016. Though accused promised to pay the same within 2–3 months, she went on postponing and ultimately she issued cheque dated 15.0.2017, for a sum - 3 - of ₹3,50,000/-. However, when presented it was dishonoured for want of sufficient funds. Despite Service of legal notice, accused failed to pay the amount due under the cheque. She has also not sent any reply and therefore complainant is forced to file the complaint. 4. Accused appeared through counsel and contested the case by pleading not guilty. 5. In order to prove the allegations against accused, complainant examined himself as PW-1 and his aunt Smt. Anuradha as PW-2. He has got marked Exs.P1 to 6. 6. During the course of her statement under Section 313 Cr.P.C accused has denied the incriminating evidence led by the complainant. 7. The accused has not let any oral or documentary evidence. 8. Vide the impugned judgment and order the trial Court convicted the accused and sentenced to pay fine of ₹7,00,000/- with the default sentence of imprisonment. - 4 - 9. Accused challenged the same before the Sessions Court in Crl.A.No.2301/2018, which came to be dismissed, by confirming the judgment and order of the trial Court. 10. Aggrieved by the concurrent findings of the trial Court and Sessions Court, accused has filed this petition contending that the Courts below have erred in convicting and sentencing the accused. They have failed to appreciate the fact that a blank signed cheque was issued to PW-2, when accused participated in the chit fund run by her. PW-2 has handed over the same to the complainant and got filed the complaint. Except her signature, the rest of the contents of the cheque are not in the handwriting of accused, which itself establish her defence. In the light of the fact that as per the Income Tax Rules, any payment in excess of ₹20,000/- is required to be made through cheque, it also falsify the case of complainant that he has paid ₹3,50,000 in cash to the accused. The very fact that the contents of Ex.6 are in the handwriting of the complainant, it supports the contention of accused that it - 5 - is got up document. The oral testimony of PW-1 is contrary to the complaint averments. The variance in evidence of PWs-1 and 2 is required to be viewed from suspicion. The notice is also not served 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 submit that undisputedly the cheque is drawn on the account of the accused and it bears her signature and on presentation, it came to be dishonoured for want of sufficient funds. Despite service of legal notice, the accused has not chosen to either comply with it or send suitable reply, therefore, presumption under Section 139 of N.I Act is attracted, placing the initial burden on the accused to rebut the same and prove that the subject cheque was not issued towards repayment of any legally recoverable debt or liability and on the other hand establish the circumstances in which the cheque has reached the hands of accused. He would further submit that accused has failed to discharge the initial burden. - 6 - Consequently, in view of the oral and documentary evidence on record, the Courts below are justified in convicting and sentencing the accused and pray to dismiss the petition also. 12. Heard arguments and perused the record. 13. Accused admit that the subject cheque is drawn on her account and it bears her signature. On presentation, it is dishonoured for want of sufficient funds. The legal notice sent by the complainant is served as per Acknowledgement at Ex.P5. Though the accused has claimed that the legal notice is not served on her, she has not disputed her address to which the legal notice was sent. Complainant has claimed that the legal notice is received by the daughter-in-law of accused, which fact is not disputed by the accused. 14. Under Section 27 of the General Clauses Act when any Central Act or Regulation made after the commencement of the General Clauses Act, authorizes or requires any document to be served by post, whether the - 7 - expression service or either of the expressions give or send, or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of the post. 15. Therefore, the burden is on the accused to prove that the legal notice has not come to her notice. Section 138(b) require complainant to issue the notice through registered post. It does not require that the notice is to be served. The presumption take care of this aspect, placing the burden on the accused to prove that there is no due service by examining the postman. 16. On the other hand, the complainant has claimed that after service of legal notice, the accused approached him and gave an undertaking as per Ex.6 that she would pay the amount due within 25.07.2017, failing which action can be taken against her. The signature in this - 8 - document at Ex.P6(a) tallies with her signature in the subject cheque. Though the accused has stated that this document is not in her handwriting, she is not having any explanation for her signature in Ex.P6. 17. Though accused claim that the cheque was issued to PW-2 when she participated in the chit fund run by her, during her cross-examination, PW-2 has totally denied that she was running any chit fund business and accused was one of the member and that she had a bid for ₹1,20,000/-. Except the suggestions made to PWs-1 and 2, the accused has not produced any documents to prove that PW-2 was running a chit fund business and she was taking part in it. She could have produced some documents to show that she had paid instalments, etc. When PW-2 failed to return the subject cheque, the least accused could have done was to instruct her banker not to honour it by specifying the reasons. Admittedly, the accused has not given any such instructions to her banker. Her conduct in not replying to the legal notice and thereby coming up with - 9 - her specific defence at the earliest available opportunity is contrary to the defence taken by her. 18. Appreciating the oral and documentary evidence placed on record the trial Court as well as the Sessions Court rightly held that accused has failed to rebut the presumption and on the other hand, complainant has proved the allegations against accused. The conclusions arrived at and findings given by the Courts below are consistent with the evidence on record. There is no perversity calling for interference by this Court. 19. In the result the petition fails and accordingly the following: ORDER (i) Petition filed by the accused under Section 397 r/w 401 Cr.P.C is hereby dismissed. (ii) The impugned judgment and order dated 12.10.2018 in C.C.No.20783/2017 on the file of XIX ACMM, Bengaluru and judgment and order dated 31.10.2019 in Crl.A.No.2301/2018 on the file of LII - 10 - Addl.City Civil and Sessions Judge, Bengaluru (CCH-53) are confirmed. (iii) The Registry is directed to send back the trial Court and Sessions Court records along with copy of this order forthwith. SD/- (J.M.KHAZI) JUDGE RR