- 1 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 985 OF 2021 BETWEEN: 1. SMT. GANGAMMA D/O RAMACHANDRAPPA AGED ABOUT 45 YEARS, R/AT C/O CHANDRAMMA NO.115, MANJUNATHA TEMPLE STREET NEXT TO L.G. PUBLIC SCHOOL PARVATHI NAGAR, LAGGERE BENGALURU-560 058 PRESENTLY R/AT G.B.HALLI (HASANPURA) ROLLE POST MADAKASIRA TALUK ANANTHAPURA DISTRICT ANDHRA PRADESH …PETITIONER (BY SRI. SHIVA PRASAD E., ADVOCATE) AND: 1. SRI D.B. KUMARACHAR S/O LATE BHASKARACHAR AGED ABOUT 65 YEARS, R/AT NO.9, RMB 2ND STAGE, 2ND BLOCK BENGALURU-560 054 …RESPONDENT (BY SRI. NAGARAJA S., ADVOCATE [ABSENT]) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO ALLOW THIS CRL.RP AND SET ASIDE THE JUDGMENT AND ORDER DATED 02.03.2021, PASSED IN CRL.A.NO.1567/2018, BY THE COURT OF THE LXII ADDL. CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU AND THE JUDGMENT AND ORDER DATED 18.07.2018 PASSED IN C.C.NO.2238/2015 BY THE COURT OF THE XII A.C.M.M., AT BENGALURU AND CONSEQUENTLY ACQUIT THE PETITIONER/ACCUSED FROM THE OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT. THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER 1. This matter is listed for admission. Heard the learned counsel for revision petitioner. The learned counsel for respondent is absent today. On 28.01.2025 also the counsel for respondent was absent and this Court made it clear that if counsel for respondent does not appear on the next date of hearing, the matter will be heard in his absence. 2. This revision petition is filed against the order of conviction and sentence passed in C.C.No.2238/2015 vide order dated 18.07.2018 and confirmation by the First - 3 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 Appellate Court in Crl.A.No.1567/2018 dated 02.03.2021 to pay an amount of Rs.1,50,000/-, the accused shall pay a fine of Rs.1,52,000/-. In default of payment of the said fine amount, the accused shall undergo simple imprisonment of two months and out of Rs.1,52,000/-, an amount of Rs.2,000/- shall be remitted to the State and the same was challenged in criminal appeal and the Appellate Court also confirmed the order of the Trial Court. Being aggrieved by the said orders, the present revision petition is filed before this Court. 3. The factual matrix of case of the complainant before the Trial Court is that the complainant and the accused known to each other. The accused borrowed a sum of Rs.1,50,000/- from the complainant on 15.12.2013 to improve the business of the accused agreeing to repay the same with interest at 18% per annum within 6 months time. Even after completion of 6 months the accused one or other pretext dodged to repay the amount to the complainant. On 18.12.2014, towards repayment of the - 4 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 loan of Rs.1,50,000/- the accused has issued the Cheques, when the said Cheques are presented, the same were dishonored and returned with an endorsement ‘Funds Insufficient’ and legal notice was issued and the accused did not give any reply and failed to repay the amount. Hence, the complaint has been filed and the Trial Court taken the cognizance. The accused did not plead guilty and claims trial. In order to substantiate the case of the complainant, examined himself as PW1 and got marked the documents Ex.P1 to Ex.P6 and Ex.P6(a). The accused denied the incriminating evidence in 313 statement and examined as DW1 and got marked documents at Ex.D1 to Ex.D4. 4. The Trial Court having considered both oral and documentary evidence placed on record, particularly when the Cheque was admitted, presumption can be drawn and knowingfully having sufficient fund in her bank account with an intention to defeat the claim of the complainant, the said Cheque was given. The Trial Court comes to the - 5 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 conclusion that complainant has proved his case by giving cogent evidence of document Ex.P1 to Ex.P6 and the same is not rebutted under Section 139 of N.I Act. Being aggrieved by the said order, an appeal is filed in Crl.A.No.1567/2018. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record and having considered both the evidences that the accused did not denied the very issuance of Cheque and only taken the contention that this Cheque was lost when the same was signed and kept in the house of the complainant. The First Appellate Court comes to the conclusion that the defense theory of the accused was not proved and there is no material available on record to substantiate the grounds which have been urged by the appellant and confirmed the order of the Trial Court and hence, the present revision petition is filed before this Court. 5. The counsel appearing for the revision petitioner would vehemently contend that both the Courts - 6 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 failed to consider the material on record. When the accused in his evidence and rebutted the evidence of the complainant, the same was not taken note of and there cannot be presumption of fact and law. When the accused successfully rebutted the same, there is no satisfactory statement mentioned in any manner and there are contradictions. The counsel also would contend that in the complainant, it is specifically pleaded that Cheque was given after one week and also contended that interest was paid for a period of six months, but in the cross- examination PW1 admits that Cheque was given on the date of transaction and also no payment of interest was made and agreed to pay the interest at 18%. When the Cheque was given after one year what made the accused to give a Cheque for the said amount and not included any interest while issuing the Cheque and hence it is clear that there was no any transaction between the complainant and the accused. - 7 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 6. The counsel also brought to notice of this Court that PW1 categorically admitted that accused came to know her through one Chandramma and also says that when the accused was staying in the house of person belongs to the Muslim community he went to the house of the accused twice that is prior to 15.12.2013 and says that thereafter 7 times went to the village of the accused, but claims that accused was having a bangle store at Hegganahalli village. It is elicited that prior to 15.12.2013 no amount was given to the accused and she demanded the loan amount in her house and she cannot tell exact date. It is also elicited that he was having retirement money in the corporation bank and amount was drawn from the bank to the tune of Rs.61,00,000/-, out of that made the payment of the subject matter of the Cheque. It is also the case that in November-2013 she has purchased the property and remaining amount was in the house. In further cross-examination, it is elicited that husband of Chandramma and herself working in the same company that is Car mobile company and Chandramma used to get - 8 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 the money from her and she might have given money to others also. It is also elicited that she went to the house of fancy store, but did not know the name of the fancy store. It is elicited that she knows the accused only prior to six months of the transaction and when Chandramma used to visit her house, accused used to visit her house. The amount was paid by cash and also getting the income of rent from the house and except the said Cheque, she did not obtained any document and also says that accused has not paid any interest to that amount. It is suggested that accused not running any shop and same was denied. It is her evidence that herself and Chandramma both are very cordial and they used to visit the house of the accused and when the accused went to the work of garments, taking the key of the house, stolen those Cheques and made use of the same for filing the complainant. The accused examined as DW1 and also produced the document Ex.D1 to Ex.D4 and he was subjected to cross-examination and categorically says that last three Cheques and returned remaining Cheques and closed the account on 05.08.2014. - 9 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 In the cross-examination admits that in Bangalore jurisdiction residing from last 20 years and also from 4 to 5 year residing at Hasanpura and admits that signature is found in Ex.P1 and also identified as Ex.P1(a). It is also elicited that at the time of issuance of notice, she was residing at Hasanpura and her children are in need of money, she gave the Cheques and kept the same in the drawer and when she asks for children, whether they have drawn the money, children have not given any reply and cannot say on what date she had signed the Cheques and kept the same in the drawer and her one of the son is working as driver and they used to give money to her Rs.8,000/- to Rs.10,000/- per month and she used to keep the amount in her account and she cannot tell on what date amount was given by her children and she has not given any complaint when the Cheques were lost and only she has given intimation to the bank. It is also her evidence that she cannot tell Ex.D4 is in existence and also she did not mentioned the same in Ex.D4 on what - 10 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 date Cheque was lost and she has not given any complaint against the Chandramma as well as the complainant. 7. Having re-assessed the material on record, no doubt scope of revision is very limited, but main contention of the counsel appearing for the petitioner is that Cheques were lost and the same were misused. In order to prove the case of the defense, whether sufficient materials are available or not this Court has to look into the same. Admittedly, Cheque belongs to the accused and not disputes the same and also it is the contention that Cheques are kept in the drawer after signing the same and she used to give key to the Chandramma and when the accused went to duty, at that time, the same was stolen. No doubt it has to be noted that bank intimation is given in the month of August-2014, but it is the case of the complainant that amount was taken in the year 2013. It is the case of the complainant that Cheque was given in the month of December-2014. No doubt Ex.D4 is also given which is intimation to the bank, but the fact is that when - 11 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 the Cheques are signed and kept in the drawer, nothing is mentioned in the Ex.D4 and having considered Ex.D4, only Cheques numbers are mentioned that they are lost where the same have been lost is not stated and also even not examined the said Chandramma for taking of the Cheques from the drawer of the accused. 8. It is also important to note no complaint was given against either Chandramma or against the complainant for having stolen the Cheques and the same is categorically admitted by DW1. Though the statements of account is produced as Ex.D2 and also Ex.D3, no doubt account closing cash debit date is mentioned as 21.08.2014 and also records reveals that Cheque was given subsequent to the letter given to the bank and how the document of Cheque gone to the hands of the complainant, no probable evidence is placed before the Court except giving of the complaint. The counsel brought to notice of the contradictions in the evidence of complainant for having paid the interest is concerned and - 12 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 in the cross-examination says no interest was paid, but in the complaint it is mentioned that interest was paid for a period of 6 months and not paid the interest subsequently and this admission will not take away the case of the complainant when the Cheque was issued and when the Cheque was admitted that the same belongs to the complainant and only contention that three Cheques are lost but no complaint was given to the Police, but only intimation was given to the bank that too particularly in respect of three Cheques and subject matter of Cheque is only one Cheque and the fact that when the Cheque was presented an endorsement was given on 19.12.2014 as ‘Funds Insufficient’, but contend that intimation was given to the bank in terms of the Ex.D4 and on the said letter itself the seal was put that account was closed, but not examined the author of the document Ex.D4 and hence the Trial Court as well as the First Appellate Court rightly drawn the presumption under Section 139 of N.I Act when there is no any rebuttable presumption and also when documents are placed before the Court, both the Courts - 13 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 have drawn the presumption and invoked Section 138 of N.I Act. The Revision Petitioner fails to prove the defense and no doubt mere closure of account in the bank itself is not a ground even after issuance of Cheque and closure of account also attracted Section 138 of N.I Act, but the fact is that account was closed on 05.08.2014, but Cheque date was subsequent to the closure of the account. It is also important to note that the complainant has specifically stated that loan was availed on 15.12.2013 and the accused personally approached the complainant on 18.12.2014 and issued a Cheque and nothing is elicited with regard to the specific pleading of the complainant that he went and gave the Cheque on 18.12.2014 and having made the payment by way Cheque on 18.12.2014, nothing is elicited and when such being the material on record, I do not find any error committed by Trial Court and also the First Appellate Court in coming to the conclusion that presumption could be drawn under Section 139 of N.I Act and the same has not been rebutted. No doubt under section 139 of N.I Act, evidence of the complaint can be - 14 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 rebutted and when the Cheques are lost in the house, no such complaint was given either against the complainant or against the Chandramma who is known to both the complainant as well as the accused and also specifically admitted in the cross-examination that she kept the Cheque in the drawer and she went for job. Though contend that she enquired with children whether they have drawn the money from account, but no specific answer in the cross-examination of DW1 and whether children have withdrawn the money or not also no answer from the mouth of DW1 and when the same was noticed when she asked the children whether they have drawn the money and found Cheques are missing, but no complaint was given except the document of Ex.D4 intimation letter was given. Under these circumstances, the theory of lost the Cheque and not issued the Cheque in favour of the complainant cannot be believed and except giving the letter in terms of the Ex.D4 that Cheques are lost and where it was lost nothing is stated in the Ex.D4, but at the time of defense, it is stated that Cheques are lost which - 15 - NC: 2025:KHC:6118 CRL.RP No. 985 of 2021 were kept in the drawer of the house and hence, theory of the defense not accepted by the Trial Court and First Appellate Court and when the evidence was appreciated by the Trial Court as well as the First Appellate Court and only this Court can exercise the revisional jurisdiction if evidence available on record and finding is not legal and under such circumstances, revisional jurisdiction can be exercised. Hence, I do not find any infirmity in the order and question of exercising revisional powers does not arise. 9. In view of the discussions made above, I pass the following: ORDER The Revision Petition is dismissed. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 47