- 1 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MRS JUSTICE M G UMA CRIMINAL REVISION PETITION NO. 644 OF 2022 BETWEEN: SRI. V. RAJESH, S/O. SRI. N. VENKATARAME GOWDA, AGED ABOUT 42 YEARS, KANCHI CO-SRI. LAKSHMINARASIMHA S SILK AND SAREES, K.S.R.T.S. BUS STAND ROAD, KALAMMA TEMPLE STREET, KOLAR - 563 101 …PETITIONER (BY SRI. ANNAIAH C.V., ADVOCATE) AND: SRI. SRINIVASAN, S/O. LATE K. RANGARAJU, AGED ABOUT 67 YEARS, R/AT NO.6, SHUBHASH LANE, NEAR MAITRI SCHOOL, A. NARAYANAPURA DOORAVANI NAGAR POST, BENGALURU - 560 016 …RESPONDENT (BY SRI. ARUNA SHYAM .M., SR. ADVOCATE FOR SRI. RUDRAPPA .P., ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION AND SENTENCE AND FINE IMPOSED BY THE XXXIII ADDL. C.M.M., BENGALURU IN C.C.NO.54051/2017 DATED 18.05.2020 AND TO SET ASIDE THE ORDER PASSED BY THE APPELLANT COURT IN CRL.A.NO.25030/2021 DATED 10.12.2021 PASSED BY THE LXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 FURTHER BE PLEASED TO ACQUIT THE PETITIONER IN THE ABOVE CASE. THIS CRL.RP, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA ORAL ORDER The accused in CC No.54051 of 2017 on the file of the learned XXXIII Additional Chief Metropolitan Magistrate, Mayohall Unit, Bengaluru (hereinafter referred to as the 'the Trial Court' for short), is seeking to set aside the judgment dated 18.05.2020, wherein the accused was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act') and sentenced to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for three months and he was also sentenced to pay compensation of Rs.32,61,000/- to the complainant and in default to undergo simple imprisonment for one year, and also to set aside the judgment dated 10.12.2021 passed in Criminal Appeal No.25030 of 2021 on the file of the learned LXXII Additional City Civil and Sessions Judge at Mayo Hall, Bengaluru (CCH-73) (hereinafter referred to as 'the First - 3 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 Appellate Court' for short), which confirmed the judgment passed by the Trial Court. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. Brief facts of the case are that, the complainant filed the private complaint in PCR No.50722 of 2017 against the accused alleging commission of offence punishable under Section 138 of NI Act. It is the contention of the complainant that the accused is known to him since about 8 years. During July 2016, the accused along with his father approached the complainant and requested to lend the amount of Rs.20,00,000/- agreeing to repay the same within two months. Believing the words of the accused, the complainant had lent Rs.20,00,000/- i.e., Rs.10,00,000/- on 13.07.2016 and Rs.10,00,000/- on 16.07.2016 to the accused. As security, the accused had issued cheque bearing No.667457 dated 12.09.2016. As the accused has not repaid the loan amount, the complainant presented the cheque issued by the accused, but the cheque was dishonoured as ‘account closed’. Legal notice was issued to the accused calling upon him to pay the - 4 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 cheque amount. But the same was refused. The cheque amount was not repaid. Thereby, the accused has committed the offence punishable under Section 138 of NI Act. Accordingly, the complainant requested the Trial Court to take cognizance of the offence and to initiate legal action against the accused. 4. The Trial Court took cognizance of the offence and summoned the accused. The accused pleaded not guilty and claimed to be tried. The complainant examined himself as PW1 and got marked the documents Exs.P1 to P7 in support of his contention. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C and examined himself as DW1. He got marked Exs.D1 and D2 in support of his defence. The Trial Court after taking into consideration all these materials on record came to the conclusion that the complainant is successful in proving the guilt of the accused beyond reasonable doubt and accordingly, passed the impugned judgment convicting the accused as stated above. - 5 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 5. Being aggrieved by the same, the accused preferred Criminal Appeal No.25030 of 2021. The First Appellate Court on re-appreciation of the materials on record, dismissed the appeal by confirming the judgment passed by the Trial Court. Being aggrieved by the same, the accused is before this Court preferring criminal revision petition. 6. Heard Sri. Annaiah C.V., learned counsel for the revision petitioner and Sri. Aruna Shyam.M., learned Senior Advocate for Sri. Rudrappa.P., learned counsel for the respondent. Perused the materials including the Trial Court records. 7. Learned counsel for the revision petitioner contended that, it is the specific contention of the complainant that an amount of Rs.20,00,000/- was lent to the accused during 2016 and the cheque in question was issued as security by the accused. Ex.P3 is the legal notice dated 23.09.2016 issued by the complainant addressed to the father of the accused making similar allegations that he had borrowed Rs.20,00,000/- and has issued the cheque bearing No. 667457 dated 12.09.2016. Ex.P6 is the similar legal notice issued - 6 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 mentioning the date of notice as 23.09.2016 contending that it was accused who borrowed the loan of Rs.20,00,000/- and issued the cheque bearing No.667457 dated 12.09.2016. 8. Learned counsel submitted that the accused has produced Ex.D1(a), the relevant portion of Ex.D1 discloses that the cheque in question was issued during 2011. It was issued as security to the loan that was given during 2011. Even according to the complainant, the father of the accused had availed loan of Rs.50,000/- during 2011 and the same was already paid. Taking advantage of the blank cheque, the complainant has manipulated the same, presented it after five years, when the account was already closed. The bank account was closed in the year 2012. Ex.D2 the bank statement discloses that the cheques that are issued after issuance of Ex.P1 are already encashed during 2011 itself. Ex.D2 further discloses that the account of the accused was closed on 09.08.2012 itself. Under such circumstances, no offence whatsoever is committed under Section 138 of NI Act. The Trial Court and the First Appellate Court ignoring all these facts, convicted the accused, which is bad in law. - 7 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 9. Per contra, learned Senior Advocate for the respondent-complainant opposing the revision contended that it is the specific contention of the complainant that the accused had borrowed loan of Rs.20,00,000/- and to repay the same, he had issued the cheque Ex.P1. When the cheque was presented for encashment, the same was dishonoured as account closed. Even though the legal notice was issued as per Ex.P6, the same was refused by him. He has not repaid the cheque amount and therefore he has committed the offence punishable under Section 138 of NI Act. The complainant, after filing the complaint, examined himself as PW.1. All the relevant documents are marked before the Trial Court. The accused examined himself as DW1, where he categorically admits that cheque Ex.P1 belongs to his bank account and it bears his signature. It is also admitted that the cheque was dishonoured. Legal notice was refused by the accused. When the accused admits that the Ex.P1-cheque belongs to his bank account and it bears his signature, the presumption under Section 118 and 139 of NI Act would arise. The accused has not rebutted the legal presumption and under such circumstances, he is liable for conviction. The Trial Court as well as the First Appellate - 8 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 Court concurrently held that the complainant is successful in proving the guilt of the accused beyond reasonable doubt and therefore he is liable for conviction. No grounds are made out to interfere with such concurrent findings recorded by the Courts below. 10. Learned counsel submitted that the tenor of cross- examination of PW1 and the evidence of the accused as DW1 disclose that Ex.P1 cheque belongs to him and it bears his signature. The defence taken by the accused is that, his father had borrowed an amount of Rs.50,000/- and as security, the cheque Ex.P1 was issued during 2011. Even though Ex.D1 is produced by the accused and contended that the bank account was closed in the year 2012 itself, the document does not probabilize such a defence that the accused had not borrowed any amount but it was his father, who had borrowed the amount of Rs.50,000/-. The witness categorically deposed before the Court that he along with his father and brothers was carrying on family business jointly. Under such circumstances, the contention of the accused that his father independently had borrowed any amount and that the same was returned cannot be accepted. Nothing prevented the accused to accept the legal - 9 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 notice and to issue the reply at the earliest possible time. When the accused has not availed such opportunity, it cannot be said that he has discharged his burden to rebut the presumption. 11. Learned Senior Advocate contended that even though there is reference to Ex.P3 at the time of addressing the argument by the learned counsel for the petitioner, no defence whatsoever was raised before the Trial Court either during cross-examining PW1 or at least when the accused is examined as DW1. When no specific defence was taken placing reliance on Ex.P3, now it cannot be contended that in view of Ex.P3, the contention of the complainant is disproved. 12. Learned counsel submitted that the accused is in the habit of issuing cheques one after the other without making necessary arrangements in his account to honour the cheque. Under such circumstances, several criminal cases for the offence under Section 138 of NI Act were instituted and in many of the cases, he was convicted. Therefore, he is a habitual offender in committing the offence under Section 138 of NI Act. Under these circumstances, he prays for dismissal of the revision petition as devoid of merits. - 10 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 13. After hearing learned counsel for both the parties and on perusal of the materials on record, the following point that would arise for my consideration is: “Whether the revision petitioner has made out any grounds to allow the criminal revision petition?” My answer to the above point is in the ‘Negative’ for the following: REASONS 14. It is the contention of the complainant that the accused had borrowed loan of Rs.20,00,000/- during 2016 and towards repayment of the same, had issued the cheque to Ex.P1. On presentation, the cheque was dishonoured and inspite of issuance of legal notice, the accused had not repaid the cheque amount and thereby he has committed the offence under Section 138 of NI Act. 15. In support of his contention, the complainant examined himself as PW1 and got marked in all seven documents. The accused, after denying all the incriminating materials available on record, examined himself as DW1. He - 11 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 places reliance on Exs.P1 and 2. Accused admits in clear terms that Ex.P1 cheque belongs to his bank account and it bears his signature. However, it is his contention that Ex.P1 was a blank cheque with his signature, which was handed over by his father to the complainant. 16. It is the settled proposition of law that once the accused admits issuance of cheque with his signature, the legal presumption under Sections 118 and 139 of NI Act would arise. The initial burden on the complainant gets discharged and the burden shifts on the accused to rebut the legal presumptions. In order to rebut the legal presumptions, the accused cross- examined PW1. During cross-examination, nothing has been elicited from him, except suggesting his defence that his father had borrowed some loan during 2011-12 and had repaid the same. 17. The accused has examined himself as DW1 in order to rebut the legal presumption. During his examination, the witness stated that he along with his father and brothers were running the family business and it was a joint business. It is stated that the father of the petitioner was a retired police - 12 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 official and handed over the cheque Ex.P1 to the complainant. Even if this defence is to be accepted, when the cheque Ex.P1 belonging to the accused voluntarily signed by him is handed over to the complainant, the complainant is entitled to fill up the contents of the cheque and present the same for encashment. 18. In this regard, reliance is placed on the decision of the Hon'ble Apex Court in Bir Singh Vs. Mukesh Kumar1 where Hon'ble Apex Court categorically held in para 34 and 36 as under: "34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt". Thus the position of law regarding issuing of blank cheque is very well-settled. 1 (2019) 4 SCC 197 - 13 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 19. The contention of the accused that his father had availed loan of Rs.50,000/- during 2011-12 and had repaid the same is not substantiated by any materials on record or during cross-examination of PW1. Learned counsel for the petitioner placed reliance on Ex.P3 to contend that if the father of the accused had not borrowed any amount, there was no occasion for the complainant to issue such a notice. Even though Ex.P3 was issued by the complainant to the father of the accused immediately after the dishonour of the cheque, the accused has not taken advantage of the same nor is he having any defence based on Ex.P3. Under such circumstances, at this stage, learned counsel for the petitioner cannot be permitted to take a defence on Ex.P3 to contend that once Ex.P3 was issued, the complainant could not have issued Ex.P6, to contend that it was the accused who borrowed the loan amount and committed the offence. 20. The accused placed reliance on Exs.D1 and 2 to contend that the bank account was closed way back in the year 2012 and therefore, took the defence that the blank cheque with the signature of the accused was issued by his father during 2011. But mere production of Exs.D1 and 2 will not - 14 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 probabilize such defence. There is no iota of evidence in support of the defence taken by the accused. It is interesting to note that during cross-examination, DW1 categorically stated that during 2011-12 itself he had demanded back the blank cheque with his signature i.e., Ex.P1 from the complainant. But the complainant had not returned the same. No action whatsoever was taken by the accused for not returning the blank cheque with his signature, even after repayment of the amount that was due. 21. If at all the defence taken by the accused is to be believed, nothing prevented the accused from accepting the legal notice Ex.P6 and to issue a befitting reply stating about defence. On the other hand, the accused refused to receive the legal notice which is to be presumed that he has done so knowing the contents of the notice. The contention of the learned counsel for the accused that the legal notice was never tendered to the accused also cannot be accepted, as there is a presumption under Section 27 of the General Clauses Act regarding the endorsement made by the postal official that the notice was refused by the accused on tendering. The accused has not rebutted these presumptions nor he has been - 15 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 successful in rebutting the presumption under Sections 118 and 139 of NI Act. Under such circumstances, the accused is liable for conviction. 22. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court, as well as by the First Appellate Court. The Courts have taken into consideration the materials on record and arrived at a concurrent finding that the accused is liable for conviction and sentence. I do not find any compelling reasons to interfere with those concurrent findings recorded by the Trial Court and the First Appellate Court. The settled proposition of law is that unless the judgments impugned are shown to be either perverse or illegal or the same were delivered against the materials that are placed before the Court, such concurrent findings cannot be interfered with. Therefore, I do not find any reason to interfere with the impugned judgments of conviction and order of sentence. Hence, the revision petition is liable to be dismissed. 23. Accordingly, I answer the above point in the ‘Negative’ and proceed to pass the following: - 16 - NC: 2025:KHC:8840 CRL.RP No. 644 of 2022 ORDER Criminal Revision petition is dismissed. Registry is directed to send back the Trial Court records along with copy of the order. Sd/- (M G UMA) JUDGE BH List No.: 1 Sl No.: 11