- 1 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 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. 329 OF 2023 (397(Cr.PC) / 438(BNSS)) BETWEEN: SMT. PREMALATHA.M.S W/O LATE RAVI KUMAR AGED ABOUT 47 YEARS, RESIDING AT NO.510, 7TH MAIN KCHS LAYOUT GNAN BHARATHI POST BANGALORE-56 …PETITIONER (BY SRI. JAYAPRAKASH SHETTY B, ADVOCATE) AND: SMT. A. N. PUTTAMMA W/O LATE B.H.GOWDA, AGED ABOUT 62 YEARS, RESIDING AT No.723, 5TH MAIN KCHS LAYOUT, GNANA BHARATHI POST BANGALORE-56 …RESPONDENT (BY SRI. UMA SHANKAR L, 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 AND ORDER DATED 09.03.2023 PASSED BY THE LXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-63) BENGALURU CITY IN CRL.A.NO.233/2020 THEREBY CONFIRMING THE JUDGMENT AND ORDER DATED 08.01.2020 Digitally signed by REKHA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 PASSED BY THE XXII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN C.C.NO.7733/2018 BY ALLOWING THE ABOVE REVISION PETITION. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI ORAL ORDER This petition filed under Section 397 r/w 401 of Cr.P.C is by the accused challenging her conviction and sentence for the offence punishable under Section 138 of Negotiable Instrument act (in short "N.I.Act") by the trial Court, 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 private complaint under Section 200 of Cr.P.C alleging that she is a housewife, but her husband was a Government servant. Her sons are working in foreign countries, getting handsome income. Complainant and accused are known to each other since - 3 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 several years. In the first week of September-2017, accused approached complainant for financial assistance in a sum of ₹6,00,000/- as she was required to repay hand loans taken from several persons. She promised to repay the same within November-2017. However, complainant was able to advance loan of ₹5,45,000/- to the accused during the second week of September-2017. 3.1 Accused failed to fulfill her promise and on repeated request and demand by the complainant, during the first week of November-2017, accused issued 2 post dated cheques for ₹5,00,000/- and ₹45,000/- with an assurance that on presentation, they would be honoured. Accordingly, on 02.02.2018 complainant presented these cheques through her banker. However, on 03.02.2018, they were dishonoured for want of sufficient funds. Complainant got issued legal notice dated 09.02.2018. Instead of repaying the amount due, the accused has sent an evasive reply and without any alternative complaint is filed. - 4 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 4. After due service of summons, accused appeared through counsel and contested the case by pleading not guilty. 5. To prove the allegations against the accused, complainant has examined herself as PW-1 and relied upon Ex.P1 to 12. 6. During the course of her statement under Section 313 of Cr.P.C, the accused has denied incriminating evidence led by the complainant. 7. Accused has given evidence as DW-1 and relied upon EX.D1 and 2. 8. The trial Court convicted the accused and sentenced her to pay compensation in a sum of ₹6,00,000/-in default to undergoing simple imprisonment for a period of six months. - 5 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 9. Accused challenged the same in appeal before the Sessions Court. However, it came to be dismissed by confirming the judgment and order of the trial Court. 10. Aggrieved by the same, accused has filed this petition contending that the judgment and order of the Courts below are opposed to law, facts and material evidence placed on record. The affidavit evidence of the complainant is not signed by her. Complainant has failed to prove advancing loan to the accused and the said fact is not reflected in the income tax returns. In fact accused has filed complaint regarding missing of the cheques. There is no application of mind by both Courts resulting in miscarriage of justice and sought for setting aside the Judgment and order of the trial Court as well as the Sessions Court and pray to acquit her. 11. In support of her case, the accused has relied upon the following decisions: - 6 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 1. V.R Kamath vs Divisional Controller, K.S.R.T.C., Bangalore and another (V.R.Kamath)1 2. Sri Dattatraya vs Sharanappa(Sri Datatraya)2 12. On the other hand, learned counsel for complainant supported the impugned judgment and order. He would submit that it is not in dispute that the cheques in question are drawn on the account of the accused and they bears her signatures. Therefore, presumption under Section 139 of N.I.Act comes into force, placing the initial burden on the accused to rebut the same. However, accused has failed to rebut the presumption. On the other hand, complainant has proved her case. Considering the oral and documentary evidence on record, both Courts have rightly held the accused guilty and sought for dismissal of the petition. 13. Heard arguments of both sides and perused the record. 1 1998(1) Kar.L.J.529 2 AIR 2024 SC 4103 - 7 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 14. It is not in dispute that the cheques in question belongs to the accused drawn on her account, maintained with her banker and it bears her signature. On their dishonour, the complainant has got issued legal notice within the prescribed time and on the failure of the accused to comply with it filed the complaint. Therefore, presumption under Section 139 of N.I.Act comes into force, placing the initial burden on the accused to prove that the cheques were not issued towards repayment of any legally recoverable debt or liability. Only when the accused rebut the presumption, burden would shift on the complainant to prove her case, including her financial capacity. 15. During the course of her evidence, the accused has taken a defence that she had borrowed only ₹45,000/- from the complainant, but she did not issue the cheques in question to her. She repaid the said amount in the presence of one Sampath Kumar and Hanumantha. Complainant has committed theft of Ex.P1 cheque - 8 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 No.509395 dated 13.11.2017 for ₹5,00,000/- which she has kept ready to be given to one Sri.Venkatesh, who had filed Ex.No.777/2015 with regard to the theft of cheque and he has filed a complaint against the complainant. She has also not executed any demand Pro-notes at Ex.P11 and 12. However, during the course of her examination-in- chief, accused has not come up with any explanation for cheque at Ex.P2 reaching the hands of complainant. 16. Thus the accused has alleged that Ex.P1 cheque was stolen by the complainant from her house. Ex.D1 is the copy of the complaint dated 07.03.2018 filed by the accused against the complainant and Ex.D2 is the statement of complainant given before the concerned police. It is pertinent to note that the accused has filed the complaint at Ex.D1 only after receiving the legal notice from the complainant. In the said complaint, she has alleged that both cheques at Ex.P1 and 2 were stolen by the complainant and she was not aware of the same till she received the legal notice. If at all Ex.P1 cheque was - 9 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 kept ready to pay the amount due to Sri.Venkatesh who had filed Ex.No.777/2015 and it went missing, accused would have come to know about it immediately. If not filing complaint at least, she could have intimated the Bank not to honour the same, which is not her case. 17. In her statement before the police, the complainant has stated that when accused requested for hand loan, she borrowed ₹5,00,000/- from her friend Muniyamma and paid it to the accused and received the signed blank cheque for ₹5,00,000/-. Again after six months accused borrowed a sum of ₹45,000/- and issued one more cheque. The accused has not placed any material on record to show that based on her complaint, charge sheet was filed against the complainant and what developments took place about the said complaint. During her cross-examination, a suggestion is made to the complainant that cheque for ₹5,00,000/- was given to Sri.Venkatesh and she has committed the theft from his house. If at all the said cheque was issued in favour of - 10 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 Venkatesh, then complainant cannot have it in her name. If accused was intending to issue the said cheque in favour of Venkatesh and handed over it to him, then it cannot be a blank cheque, especially when no suggestion is made that it was a blank cheque. 18. In fact during her cross examination, accused has deposed that she had issued the cheques to complainant and after repayment of loan when she demanded her to return them, she went on postponing, saying that her husband has died and she will find and return them. Throughout the suggestions made to PW-1, the evidence of accused as DW-1 and the documents on record are inconsistent with each other. In addition to issuing the cheques at Exs.P1 and 2, the accused has also executed a demand pro-note and consideration receipt at Ex.P-11 and 12. Except denial, the accused is not having any other explanation for the same. Thus, the accused has failed to rebut the presumption. - 11 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 19. The accused has also cross-examined PW-1 regarding her financial capacity. In fact in her cross examination, the accused has admitted that complainant is getting rent. Her husband was a retired Government official and her children are staying in foreign countries and having handsome earnings. Ex.P7 is the RTC standing in the name of complainant. Moreover, she has deposed that when accused requested for financial assistance, as she was not having requisite funds immediately, she took the said loan from her acquaintance and paid it to the accused. 20. So far as the decision in V R Kamath, referred to supra is concerned, it was a decision dealing with procedure to be followed both by the Notary/Oath commissioner. In the present case in the affidavit, the signature of complainant is not forthcoming in the first two pages. But she has signed in the third page. It appears that the Notary has also not observed this fact. However, the deposition of complainant is based on the complaint - 12 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 and supported by the documentary evidence. Such being the case the failure to sign the first two pages of affidavit evidence would not go to the route of the case of the complainant. 21. So far as the decision in Dattatraya, on facts, it was held that the complainant has failed to prove his case. It is also not applicable to the facts and circumstances of the present case. 22. The trial Court as well as the Sessions Court on proper appreciation of oral and documentary evidence placed on record have come to a correct conclusion that accused has failed to rebut the presumption and on the other hand, complainant has proved the allegations against the accused. This Court finds no perversity in the conclusions arrived at by them, calling for interference. In the result, the petition fails and accordingly the following: - 13 - NC: 2025:KHC:12121 CRL.RP No. 329 of 2023 ORDER (i) Petition filed by the accused under Section 397 r/w 401 Cr.P.C is dismissed. (ii) The impugned judgment dated 08.01.2020 in C.C.No.7733/2018 on the file of XXII Addl. Chief Metropolitan Magistrate at Bengaluru and judgment and order dated 09.03.2023 in Crl.A.No.233/2020 on the file of LXII Addl. City Civil and Sessions Judge, Bengaluru are confirmed. (iii) The Registry is directed to send back the trial Court as well as Sessions Court records along with copy of this order forthwith. Sd/- (J.M.KHAZI) JUDGE ASN/RR List No.: 1 Sl No.: 56