- 1 - HC-KAR NC: 2025:KHC:21355 CRL.RP No. 430 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 430 OF 2015 BETWEEN: GOVINDA SHETTY S/O LATE RADHAKRISHNA AGED ABOUT 49 YEARS R/AT No.10, 1ST CROSS KAMKYA MAIN ROAD, 5TH BLOCK, BANASHANKARI BSK III STAGE BENGALURU - 85 …PETITIONER (BY SRI MANJE GOWDA B V, ADVOCATE FOR SRI K A CHANDRASHEKARA, ADVOCATE) AND: ANJALI A KUMAR W/O ASHOK KUMAR AGED ABOUT 45 YEARS RA/T No.13, 6TH CROSS V PHASE, BANASHANKARI BSK III STAGE BENGALURU – 560 085. …RESPONDENT (BY SRI B CHANDRAHASA RAI, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 27.8.2014 PASSED BY THE XXII A.C.M.M., BENGALURU CITY IN C.C.No.8185/2012 AND CONFIRMED BY THE JUDGMENT AND ORDER DATED 9.4.2015 Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:21355 CRL.RP No. 430 of 2015 PASSED BY THE LIX ADDL. CITY CIVIL AND S.J., BENGALURU CITY IN CRL.A.No.1055/2014 FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT AND TO ACQUIT THE PETITIONER/ACCUSED. THIS PETITION COMING ON FOR HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER 1. This revision petition is directed against the judgment dated 09.04.2015 passed in Crl.A. No. 1055/2014 by LIX Additional City Civil and Sessions Judge, Bengaluru whereunder the judgment of conviction dated 27.08.2014 passed in C.C. No. 8185/2012 by XXII ACMM, Bengaluru, convicting the petitioner for offence under Section 138 of the Negotiable Instruments Act (hereinafter for the sake of brevity referred to as the `N.I. Act’) has been affirmed. 2. Heard learned counsel for petitioner. 3. Case of the respondent – complainant is that the petitioner – accused had borrowed Rs.2,00,000/- from the respondent – complainant on 15.02.2011 and in order to repay the said amount borrowed, the petitioner – accused - 3 - HC-KAR NC: 2025:KHC:21355 CRL.RP No. 430 of 2015 issued cheque for Rs.2,00,000/- dated 15.04.2011. Said cheque came to be presented for encashment and it came to be dishonoured for want of funds in the account of petitioner – accused by memo dated 17.09.2011. The respondent – complainant has issued legal notice demanding payment of cheque amount on 14.10.2011 by RPAD. Inspite of service of said notice, the petitioner – accused has not paid the cheque amount and therefore, the respondent – complainant has initiated proceedings against the petitioner – accused for offence under Section 138 of the N.I. Act. The respondent – complainant examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.6. Statement of the accused has been recorded under Section 313 of Cr.P.C. The petitioner – accused examined himself as D.W.1 and no documents were marked on defence side. The trial Court after hearing arguments on both sides and appreciating the evidence on record has convicted the petitioner – accused for offence under Section 138 of N.I. Act and sentenced him to pay fine of Rs.2,00,000/-. The petitioner – accused challenged the - 4 - HC-KAR NC: 2025:KHC:21355 CRL.RP No. 430 of 2015 said judgment of conviction before the Sessions Court in Crl.A. No. 1055/2014 and the said appeal came to be dismissed by judgment dated 09.04.2015 confirming the judgment of conviction passed by the trial Court. 4. Learned counsel for petitioner would contend that the notice has not been served on the petitioner – accused. He further contended that the defence of the petitioner – accused that cheque issued as security to the husband of the respondent – complainant at the time of borrowing money from the husband of the respondent – complainant has been misused and borrowing of money and filing of case by husband of this respondent – complainant has been admitted by her in her cross-examination. The alleged borrowing and capacity to lend the money has not been established. Without considering all these aspects, the trial Court erred in convicting the petitioner and the appellate Court erred in confirming the said judgment of conviction without re-appreciating the evidence on record. - 5 - HC-KAR NC: 2025:KHC:21355 CRL.RP No. 430 of 2015 5. Having heard the learned counsel for the petitioner, this Court has perused the impugned judgments and trial Court records. 6. As the signature on the cheque is admitted, a presumption has to be drawn under Section 139 of the N.I. Act that the cheque is issued for discharge of a debt. Said presumption is a rebuttable presumption. The stand of proof for rebutting the said presumption is preponderance of probability. 7. The petitioner – accused has taken up the defence that the cheque issued by the petitioner – accused to the husband of the respondent – complainant has been misused through his wife. His further defence is that husband of respondent – complainant has initiated proceedings for dishonour of the cheque in the year 2010 and therefore, there is no question of borrowing money from the wife in the year 2011. 8. P.W.1 in her cross-examination has admitted that her husband has filed C.C. No. 44986/2010 against the - 6 - HC-KAR NC: 2025:KHC:21355 CRL.RP No. 430 of 2015 petitioner – accused and her husband has filed complaint against the petitioner – accused in the year 2010 for dishonour of cheque issued for Rs.4,90,000/-. She denied the suggestion that even though she is aware of the said aspect she is deposing falsely stating that she had lent Rs.2,00,000/- in the year 2011. She has given negligent answer to the suggestion that 3 cheques given by the petitioner – accused are with her. 9. What can be made out from the said cross- examination is that husband of this respondent – complainant has initiated proceedings against the petitioner – accused for dishonour of cheque in the year 2010 and cheque is issued for Rs.4,90,000/-. There is no suggestion that as the case is instituted by her husband in the year 2010, the relationship between the petitioner – accused, husband of the complainant and respondent - complainant are strained and there is no question of any money borrowing from the respondent – complainant. Considering all these aspects, the petitioner – accused has failed to - 7 - HC-KAR NC: 2025:KHC:21355 CRL.RP No. 430 of 2015 establish his defence and failed to rebut the presumption drawn under Section 139 of N.I. Act. As the presumption is not rebutted, there is no question of respondent – complainant proving the alleged lending of money and her capacity to lend money. 10. The Hon’ble Apex Court in the case of Kalamani tex and Another Vs. P Balasubramanian, reported in 2021 (5) SCC 283 has held as under: “13. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these ‘reverse onus’ clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat in the following words: “18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles - 8 - HC-KAR NC: 2025:KHC:21355 CRL.RP No. 430 of 2015 of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant accused.” 11. The Hon’ble Apex Court in the case of Rajesh Jain Vs. Ajay Singh reported in AIR Online 2023 SC 807 has held as under: “55. As rightly contended by the appellant, there is a fundamental flaw in the way both the Courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.” - 9 - HC-KAR NC: 2025:KHC:21355 CRL.RP No. 430 of 2015 12. Learned counsel for petitioner would contend that notice issued has not been served and postal acknowledgement does not bare the signature of the petitioner. 13. In the complaint itself it is stated that the notice issued has not been returned and correspondence is made in that regard. On perusal of the records there is returned postal cover addressed to the petitioner wherein notice issued to the petitioner has been returned unclaimed. When the postal cover has returned unclaimed, the postal acknowledgement will not bare the signature of the petitioner – accused. The petitioner – accused in his cross- examination has admitted his address mentioned in the legal notice Ex.P.3. Therefore, the legal notice is deemed to have been served on the petitioner. considering all these aspects learned Magistrate has rightly convicted the petitioner for offence under Section 138 of the N.I. Act. The appellate Court, re-appreciating the evidence on record has rightly upheld the judgment of conviction passed by the trial Court. - 10 - HC-KAR NC: 2025:KHC:21355 CRL.RP No. 430 of 2015 There are no grounds made out for setting aside the impugned judgments and acquit the petitioner – accused. 14. In the result, revision petition is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE LRS List No.: 1 Sl No.: 47