- 1 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO. 136 OF 2018 BETWEEN: B L PRAKASH S/O LAKSHMANA SHETTY @ LAKKASHETTY AGED ABOUT 36 YEARS, R/O NO.835, NEAR SREE LEKHA TALKIES BASAVANAHALLY EXTENSION CHIKKAMAGALUR CITY-577101 …PETITIONER (BY SRI. GURURAJ R, ADVOCATE) AND: SRI K S DEVARAJEGOWDA S/O K P SHIVEGOWDA AGED ABOUT 38 YEARS, NAVEEN PROVISION STORES NEAR TILAK PARK VIJAYAPURA EXTENSION CHIKKAMAGALUR CITY-577101 …RESPONDENT (BY SRI.VINOD GOWDA, 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 ORDER DATED 14.11.2017 PASSED IN CRL.A.NO.184/2016 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE CHIKKAMAGALUR CONFIRMING THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 22.11.2016 PASSED BY THE III ADDITIONAL CIVIL JUDGE AND JMFC, Digitally signed by REKHA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 CHIKKAMAGALURU IN C.C.NO.926/2012 AND THIS REVISION PETITION BE ALLOWED WITH COST THROUGHOUT. 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 criminal revision petition filed under Section 397 r/w 401 Cr.P.C is by the accused, wherein he has challenged his conviction and sentence for the offence punishable under Section 138 of N.I Act, which came to be confirmed by the Session Court by dismissing the appeal filed by the accused. 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. Complainant filed the complaint against the accused alleging offence punishable under Section 138 of N.I Act, contending that accused borrowed a sum of ₹3,25,000/-. Towards repayment of the same, he issued - 3 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 cheque dated 17.01.2012 for ₹3,25,000/-. When complainant presented the cheque for encashment, it was dishonoured for "Funds insufficient". He got issued legal notice dated 01.02.2012 through RPAD and ordinary post. It is received by the accused on 10.02.2012. However, accused has neither paid the amount due nor sent any reply and hence, the complaint. 4. Accused contested the case by pleading not guilty. 5. In order to prove the allegation against the accused, complainant examined himself as PW-1 and relied upon Ex.P1 to 5. 6. During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence led by the complainant. 7. Accused has given evidence as DW-1 and got marked Ex.D1 and 2. - 4 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 8. The trial Court convicted accused and sentenced him to pay fine of ₹3,000/- with default sentence of imprisonment. It has also directed the accused to pay compensation in a sum of ₹3,57,500/- to the complainant with the default sentence of imprisonment. 9. Accused challenged the same before the Sessions Court in Crl.A.No.184/2016, which also confirmed the judgment and order of the trial Court by dismissing the appeal. 10. Against the concurrent findings of the trial Court and Sessions Court, accused has filed this petition contending that the judgment and orders under revision are illegal and the Courts below have committed material regularity in convicting him. They have not appreciated the oral and documentary evidence in the right perspective. The legal notice is not sent to the address of accused and therefore it is not served on him. The complainant has failed to prove his financial capacity. In the above facts and circumstances, the conviction and - 5 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 sentence of accused is not sustainable and pray to set aside the judgment and order of the Courts below and acquit him. 11. On the other hand, learned counsel representing the complainant supported the impugned judgment and order of trial Court and sought for dismissal of the petition. 12. Heard arguments of both sides and perused the record. 13. It is not in dispute that Ex.P1 cheque is drawn on the account of the accused. According to the complainant, after the dishonour of cheque, legal notice was sent to the accused and it is duly served on him as per the acknowledgement at Ex.P5 and accused has not sent any reply. However, at the trial the accused has disputed that legal notice is served on him, and therefore he could not send any reply. He has also disputed that the - 6 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 cheque at Ex.P1 bears his signature. He has also disputed that complainant has stolen the blank cheque from his bag, which he had kept in the house of complainant and misused it. 14. Therefore, at the outset burden is on the complainant to prove that notice is duly served on the accused and the cheque also bears his signature and the presumption under Section 139 of N I Act could be pressed into service. It is pertinent to note that the notice is sent to the accused to the same address as specified in the complaint, as a resident of Bilekallu and it is served on the accused as per the acknowledgement Ex.P4. In the complaint, also summons was served on him on the same address. The order sheet reveal that despite service of summons, when accused fail to appear before the trial Court, NBW was issued. Accused got the case advanced, appeared through counsel and secured bail. - 7 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 15. The cross-examination of accused reveal that Bilekallu is his native place where his brother and other family members stay. During his evidence accused has produced Aadhaar card at Ex.D1 and ration card Ex.D2 to show that he is residing at Basavanahalli, Chikkamagaluru. The ration card is issued on 20.09.2014, which is subsequent to the filing of the complaint. The Aadhaar card does not bear the date on which it was issued. Of course in Aadhaar card, the residential address may be change at the request of the person to whom the card belongs. Such being the case, on the basis of these documents it cannot be held that notice is not served on the accused. 16. In fact, the acknowledgement at Ex.P5 bears the signature of accused. However, he is also disputing that the signature in the acknowledgement belong to him. He has also gone to the extent of claiming that cheque also does not bear his signature. However, the cheque is not dishonoured on the ground that signature therein - 8 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 differ from his specimen signature maintained with the Bank. Such being the case, he cannot dispute his signature on the cheque. In order to demonstrate that accused is not a reliable witness and he has no respect for truth, complainant has cross-examined him at length confronting his signatures available in summons served on him. Vakalath filed by his counsel on his behalf, his Plea and 313 statement. While he has admitted his signature in Vakalath and 313 statement, he has denied that the postal acknowledgement, cheque and plea recorded by the Court bear his signature. The trial Court has also made a note that while the accused was giving evidence, his advocate was helping him by making signs. Thus the accused has intentionally disputing his address to which notice was sent and his signatures in acknowledgement as well as in the cheque. 17. Thus, the legal notice is duly served on the accused. Admittedly, he has not sent any reply to the legal notice coming up with any specific defence at the earliest - 9 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 available opportunity. Having regard to the fact that the cheque in question is drawn on the account of the accused and it is proved that it bears his signature and it is dishonoured for want of sufficient funds and after issuing legal notice, complainant has filed the complaint, the presumption under Section 139 of N.I Act has come to play to the effect that the cheque was issued towards repayment of any legally recoverable debt or liability, placing the initial burden on the accused to rebut the same. 18. During the course of his evidence, the accused has come up with a defence that sometimes he used to keep his bag in the shop of the complainant and during such time, he has committed theft of cheque belonging to him. He has also deposed that he used to be out of town for 3-4 days at a stretch and at that time he used to keep signed cheques with the complainant so that whenever necessary, he could withdraw money from his account and pay to the mother of accused. His mother - 10 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 used to be in need of around 3-4 thousand. These two defence are mutually destructive. No suggestions are made to the complainant that accused used to keep signed cheque with him for use of his mother. 19. It is elicited during the cross-examination of accused that along with him, his wife and mother were residing and he is also having his elder brother. Such being the case, there was no impediment for the accused to get the help of his wife or brother to encash the cheque from the bank. He has given evidence that he is having agricultural land as well as he used to earn ₹15,000 to 20,000 per week from coconut business. If he could earn ₹15,000 to 20,000 per week, there was no impediment for him to pay cash to his mother while leaving the town and question of handing over signed cheques to the complainant would not arise. Of course, no suggestions are made to complainant that accused used to leave signed blank cheques with the complainant for the use of his mother and misusing one such cheque, he has filed the - 11 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 complaint. The entire defence taken by the accused is after thought, and of course he has failed to prove the same. 20. The trial Court as well as the Sessions Court after due appreciation of oral and documentary evidence on record rightly held that the accused has failed to rebut the presumption and on the other hand, the complainant has established the allegations against accused. The findings and conclusions arrived at by both Courts is consistent with the evidence on record. This Court finds no perversity or illegality calling for interference in exercise of the revisional jurisdiction. In the result the petition fails and accordingly the following: ORDER (i) Petition filed by the accused under Section 397 r/w 401 Cr.P.C is dismissed. (ii) The impugned judgment dated 22.11.2016 in C.C.No.926/2012 on the file of III - 12 - NC: 2025:KHC:11677 CRL.RP No. 136 of 2018 Addl.Civil Judge and JMFC, Chikkamagaluru and judgment and order dated 14.11.2017 in Crl.A.No.184/2016 on the file of Prl.District and Sessions Judge, Chikkamagaluru 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 RR List No.: 1 Sl No.: 51