- 1 - NC: 2025:KHC:11353 CRL.RP No. 687 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO. 687 OF 2020 (397(Cr.PC) / 438(BNSS)) BETWEEN: S.R. SHIVAKUMAR S/O REVANASIDDAPPA 50 YEARS, AGRICULTURIST HONNEMARADAHALLI VILLAGE NETHIGERE POST, CHANNAGIRI TALUK DAVANAGERE DISTRICT NOW R/O C/O C.GOPALANAIDU SRI BALAJI NILAYA, K.J NAGAR 2ND CROSS, BEHIND VEERABHADRESHWARA TALKIES, CHANNAGIRI TOWN AND TALUK DAVANAGERE DISTRICT-577213 …PETITIONER (BY SRI. KUMARA K G, ADVOCATE) AND: 1. PEER AHAMED @ MOHAMMED PEER SAB S/O BASHEER SAB SINCE DEAD BY HER LRs A). KOUSAR BANU W/O LATE PEER AHAMED @ MOHAMMED PEER SAB AGED ABOUT 48 YEARS Digitally signed by REKHA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:11353 CRL.RP No. 687 of 2020 B). SHAIK NARAYAZULLA W/O LATE PEER AHAMED @ MOHAMMED PEER SAB AGED ABOUT 30 YEARS BOTH RESIDING AT NO.1, NUGGIHALLI, CHANNAGIRI, NEETIGERE, DAVANGERE - 577215 …RESPONDENTS (BY SRI. PRITHVI RAJ B N, ADVOCATE FOR LRs OF R1(A & B)) THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE ORDER PASSED BY THE COURT OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT DAVANAGERE IN CRL.A.NO.13/2019 DATED: 12.02.2020 AND JUDGMENT PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC, CHANNAGIRI IN C.C.NO.1002/2015 DATED: 08.01.2019 FOR THE OFFENCE U/S 138 OF THE N.I ACT AND IMPOSE APPROPRIATE SENTENCE WITH COMPENSATION BEING GRANTED TO THE APPELLANT BY ALLOWING THIS APPEAL. 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 This petition filed under Section 397 r/w 401 Cr.P.C is by the accused, challenging his conviction and sentence by the trial Court for the offence punishable under Section 138 of N.I Act, which came to be confirmed by the Sessions Court, by dismissing the appeal filed by him. - 3 - NC: 2025:KHC:11353 CRL.RP No. 687 of 2020 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. Complainant filed the complaint contending that he and accused are friends since long time. Accused borrowed hand loan of ₹12 lakhs from the complainant in the first week of March, with a promise to repay the same within one month. On his failure to fulfil his promise, when complainant approached him, accused issued cheque dated 24.04.2015 with an assurance of repayment on presentation. However, when cheque was presented for realisation, it was returned with endorsement "Insufficient funds". Complainant got issued legal notice to the accused. However, he has refused to receive the same and hence, the complaint. 4. Accused appeared and contested the case by pleading not guilty. - 4 - NC: 2025:KHC:11353 CRL.RP No. 687 of 2020 5. In order to prove the allegation against the accused, complainant examined himself as PW1 and got marked Exs.P1 to 10. 6. During the course of his statement under Section 313 Cr.P.C, accused has denied the incriminating evidence led by the complainant. 7. Accused has not led any evidence on his behalf. 8. The trial Court convicted the accused and sentenced him to pay fine and in default to undergo simple imprisonment for one year. 9. Aggrieved by the same accused approached the Session Court. However, Sessions Court dismissed the appeal filed by him, thereby confirming the judgment and order of the trial Court. 10. Accused has challenged the findings by contending that accused has not received any hand loan from the complainant and the trial Court has not given him - 5 - NC: 2025:KHC:11353 CRL.RP No. 687 of 2020 opportunity to defend himself. Both Courts have failed to appreciate the defence of the accused and also provide reasonable opportunity to establish the same. The complainant has failed to prove his financial capacity. Despite the presumption under Section 139 of N.I. Act, burden is on the complainant to prove his case. While complainant is required to prove his case beyond reasonable doubt, where as it is sufficient for the accused to prove his defence by preponderance of probabilities and the accused is also not required to step into the witness box. The findings arrived at by the trial Court and Session Court are opposed to facts and circumstances of the case and pray to allow the petition. 11. On the other hand, supporting the judgment and order of the trial Court and Sessions Court, learned counsel for complainant submitted that having regard to the fact that the cheque in question is drawn on the account of the accused and it bears his signature and on presentation it is dishonoured for want of sufficient funds, - 6 - NC: 2025:KHC:11353 CRL.RP No. 687 of 2020 presumption under Section 139 of the N.I Act comes into operation and the initial burden is on the accused to rebut the same. Only after the accused succeeds in rebutting the presumption, then the burden shifts on the complainant to prove his case. He would further submit that accused has not taken any specific defence, in the absence of which he has failed to rebut the presumption. Rightly the trial Court as well as the Sessions Court have held accused guilty and there are no grounds for interfere and pray to dismiss the petition. 12. Heard arguments and perused the record. 13. As submitted by the learned counsel for the complainant in the light of the fact that the cheque in question is drawn on the account of the accused, maintained with his banker and it bears his signature, presumption is operating in favour of the complainant that the cheque was issued towards repayment of any legally recoverable debt or liability. It is for the accused to prove otherwise. It is pertinent to note that the complainant has - 7 - NC: 2025:KHC:11353 CRL.RP No. 687 of 2020 sent legal notice to the accused to his three addresses. All the notices have returned with endorsement "Refused". When the accused has refused to receive the notice, it is pre-supposed that he was aware of the contents of the notice and intentionally failed to receive the same. 13.1 Consequently, accused has failed to comply with the legal notice. At the same time the accused has failed to send any reply, disclosing his defence at the earliest available opportunity. He has not come up with any explanation as to how cheque belonging to him has reached the hands of complainant. The accused has also not stepped into the witness box to depose as to the circumstances under which the cheque has reached the complainant for the reasons other than the one put forth by him. Consequently, the accused has failed to rebut the presumption. Therefore, the burden has not shifted on the complainant to prove his case. 14. During the cross-examination of PW-1, the accused has challenged the financial capacity of the - 8 - NC: 2025:KHC:11353 CRL.RP No. 687 of 2020 complainant. In this regard, complainant has deposed that he is doing business in tamarind and mango and having income of ₹50,000/- per annum. He has also deposed that he had paid hand loan to the accused out of his savings of 20 years. Except suggesting that accused had not issued the cheque to the complainant, the accused has not come up with any specific defence. In Basalingappa Vs Mudibasappa (Basalingappa)1, the Hon'ble Supreme Court has held that unless and until the accused rebut the presumption, the burden would not shift on the complainant to prove his financial capacity. 15. Even though the accused has urged a ground that he was not provided with reasonable opportunity to cross-examine PW-1 and also lead defence evidence, the deposition of PW-1 reveal that he has cross-examined PW-1 thoroughly and closed the cross-examination. After recording statement of accused under Section 313 Cr.P.C, number of opportunities were given to the accused to lead 1 (2019) 5 SCC 418 - 9 - NC: 2025:KHC:11353 CRL.RP No. 687 of 2020 evidence. However, instead of leading defence evidence, he remained absent and the trial Court had to issue Non- bailable warrant against him. 15.1 On 14.09.2018, after getting the Non-bailable warrant recalled, his counsel made a submission that accused is not having any defence evidence and accordingly the trial Court has noted the said fact and posted the case for arguments. Even after that, the accused has not filed any application either to recall PW-1 for further cross-examination or to permit him to lead defence evidence. Such being the case, it does not lie in the mouth of the accused to say that he was not provided with sufficient opportunity. 16. Both the trial Court as well as the Sessions Court on proper appreciation of the oral and documentary evidence placed on record have rightly held that the allegation against accused are proved beyond reasonable doubt and convicted him. This Court finds no perversity in the conclusions arrived at by them, calling for interference - 10 - NC: 2025:KHC:11353 CRL.RP No. 687 of 2020 in exercise of revisionary jurisdiction by this Court. In the result, petition fails accordingly the following ORDER 1. Petition filed by the accused under Section 397 r/w 401 of Cr.P.C is hereby dismissed. 2. The impugned judgment and order dated 08.01.2019 in C.C.No.1002/2015 on the file of Addl.Civil Judge and JMFC, Channagiri and judgment and order dated 13.02.2020 in Crl.A.No.13/2019 on the file of I Addl.District and Sessions Judge, Davanagere are confirmed. 3. 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 RR List No.: 1 Sl No.: 54