- 1 - NC: 2025:KHC:11523 CRL.RP No. 445 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO. 445 OF 2018 (397(Cr.PC) / 438(BNSS)) BETWEEN: SRI. PRASHANTH S/O. FRANCIS, AGED ABOUT 46 YEARS, POLICE CONSTABLE, DARAPC NO.205, R/AT HOUSE NO. 115, POLICE QUARTERS, HOSLINE ROAD, HASSAN-573 201. …PETITIONER (BY SRI. SURESH.D.DESHPANDE, ADVOCATE) AND: SRI. NAGESH S/O PUTTSWAMIGOWDA, AGED ABOUT 36 YEARS, R/AT DASARAKOPPALU, JANATA MANE COLONY, KASABA HOBLI, HASSAN-573 201. …RESPONDENT (BY SMT.K.M.ARCHANA, AMICUS CURIAE) 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 IMPUGNED ORDER OF CONVICTION DATED 23.06.2016, PASSED BY THE LEARNED II ADDITIONAL CIVIL JUDGE AND JMFC, HASSAN IN C.C.NO.2725/2014 (OLD NO.475/2008) AND ALSO THE JUDGMENT DATED 08.02.2018 PASSED BY THE 5TH Digitally signed by REKHA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:11523 CRL.RP No. 445 of 2018 ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN IN CRL.APPEAL NO.142/2016 AND ETC., THIS PETITION, COMING ON FOR 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(1)and 401(1) of the Code of Criminal Procedure is by the accused challenging the judgment and order of conviction passed 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. 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. Complainant filed a complaint under Section 138 of N.I Act, contending that he and accused are friends. For his necessity, accused borrowed a sum of Rs.60,000/- from complainant on 10.04.2005 and issued cheque dated 06.06.2005 with a direction to get the - 3 - NC: 2025:KHC:11523 CRL.RP No. 445 of 2018 amount from his account. Accordingly, he presented the cheque on 06.06.2005 for encashment through his account. However, it came to be dishonoured for want of sufficient funds. Complainant got issued legal notice dated 21.06.2005. Though duly served, the accused has neither sent reply nor complied with the same and hence the complaint. 4. Accused appeared through counsel and contested the case by pleading not guilty. 5. In order to prove the allegations against accused, the complainant has examined himself as PW-1 and got marked Ex.P1 to 5. 6. During his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence led by the complainant. - 4 - NC: 2025:KHC:11523 CRL.RP No. 445 of 2018 7. Accused has also given evidence as DW-1. No documents are marked on his behalf. 8. The trial Court convicted the accused and sentenced him to pay fine of Rs.80,200/- with default sentence. 9. Accused challenged his conviction and sentence before the Sessions Court, which came to be dismissed. 10. Challenging the concurrent findings of the trial Court as well as the Sessions Court, accused has filed this petition contending that they are illegal, improper and opposed to the facts and circumstances of the case. Both Courts have failed to appreciate the evidence in proper perspective. They have failed to appreciate the fact that complainant has not proved his financial capacity and that the alleged loan is legally enforceable debt. The findings of the trial Court and Sessions Court are not supported by valid reasons. - 5 - NC: 2025:KHC:11523 CRL.RP No. 445 of 2018 11. On the other hand, learned Amicus Curiae representing the complainant supported the impugned judgment and order of the trial Court as well as the Session Court and submitted that in the light of the fact that the cheque in question is drawn on the account of the accused and it bears his signature, presumption under Section 139 of the N.I Act comes into play placing the initial burden on the accused to rebut the same. In the present case, the accused has not only failed to rebut the presumption, but also taken inconsistence defence which he has failed to prove. Considering the oral and documentary evidence on record, both courts have come to a correct conclusion. There is no perversity calling for interference by this Court, in exercise of its revisionary jurisdiction and sought for dismissal of the petition. 12. In support of her arguments, she has relied upon the following decisions: - 6 - NC: 2025:KHC:11523 CRL.RP No. 445 of 2018 (i) Bir Singh Vs. Mukesh Kumar (Bir Singh)1 (ii) Rajesh Jain Vs. Ajay Singh (Rajesh Jain)2 (iii) Tedhi Singh Vs. Narayan Dass Mahant (Tedhi Singh)3 (iv) Rangappa Vs. Mohan (Rangappa)4 13. Heard arguments of both sides and perused the record. 14. It is not in dispute that the cheque in question is drawn on the account of accused and it bears his signature and when presented for realisation, it is dishonoured for want of sufficient funds. After issuing legal notice, complaint is filed. Therefore, presumption under Section 118 and 139 of the N.I Act comes into picture 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. 1 (2019) 4 SCC 197 2 (2023) 10 SCC 148 3 (2022) 6 SCC 735 4 (2010) 11 SCC 441 - 7 - NC: 2025:KHC:11523 CRL.RP No. 445 of 2018 15. Having failed to send reply to the legal notice, the accused has lost opportunity to come up with the specific defence at the earliest available opportunity. However, at the trial, he has taken multiple defences which are mutually contradictory to each other. It is relevant to note that accused was working as a Police constable when the complaint was filed. His defence is required to be appreciated in the light of the fact that he is a Government employee and not an illiterate. 16. Accused admit the fact that he and complainant are known to each other. The first and foremost defence taken by the accused is that since his job require constant movement, he used to keep signed cheques in his house and while visiting his house, complainant has taken one such cheque and misused it. Of course, complainant has denied the said suggestion. If at all the complainant has committed theft of cheque belonging to the accused and misused the same and accused was not aware of it till he received the notice, at least on receipt of legal notice he - 8 - NC: 2025:KHC:11523 CRL.RP No. 445 of 2018 could have sent reply to the complainant to that effect and also filed complaint against him. 17. The other defence taken by the accused is that he had borrowed a sum of Rs.5,000/- from the complainant and issued the cheque in question by way of security and even though he has repaid the said sum, accused did not return the cheque and misused it. If this is the case, then immediately after repaying the said loan and on the failure of the complainant to return the cheque, the least accused could have done was to instruct the Bank, not to honour the cheque and also send reply as soon as he received the legal notice. During his cross- examination, accused has admitted that in all 7-8 cheque bounce cases are pending against him. Suggestions are made to the complainant that as soon as accused received the legal notice, he contacted the complainant and questioned him about the same. When the proper course available to the accused was to send reply to the legal notice, it cannot be accepted that accused met the - 9 - NC: 2025:KHC:11523 CRL.RP No. 445 of 2018 complainant and questioned him about the legal notice, especially when accused having experienced several cheque bounce cases pending against him. 18. The accused has cross-examined the complainant at length regarding his financial capacity. Of course, the evidence led by the complainant prove that he is running a Khova factory since many years and having decent income, which fact is not disputed by the accused. Having regard to the fact that accused has failed to rebut the presumption, as held in Basalingappa Vs Mudibasappa (Basalingappa)5, the burden to prove his financial capacity would shift on the complainant only after the accused rebut the presumption. The fact that several cheque bounce cases are pending against him indicate that accused is in the habit of borrowing money by issuing cheques and when dishonoured taking false defence. 19. During the course of the argument, learned counsel representing the accused submitted that the trial Court is not having power to impose interest. Of course in 5 (2019) 5 SCC 418 - 10 - NC: 2025:KHC:11523 CRL.RP No. 445 of 2018 the present case, the trial Court has not imposed any interest. While deciding the punishment, it has discussed that if the complainant had kept Rs.60,000/- in Nationalised Bank, it would have doubled. However, though for the offence punishable under Section 138 of the N.I Act fine may be imposed double the cheque, it has sentenced the accused to pay fine of Rs.80,200/- which is quite reasonable and appropriate. 20. Taking into consideration the oral and documentary evidence placed on record, both trial Court as well as the Sessions Court have rightly held that the allegations against accused are proved beyond reasonable doubt and convicted him. This Court finds no perversity in the findings and conclusions arrived at by them, calling for interference by this Court. In the result, the petition fails and accordingly, the following: ORDER 1. Petition filed by the accused under Section 397(1) and 404(1) of Cr.P.C. is dismissed. - 11 - NC: 2025:KHC:11523 CRL.RP No. 445 of 2018 2. The impugned judgment and order dated 23.06.2016 in CC.No.2725/2014 (Old No.475/2008) on the file of II Addl.Civil Judge and JMFC, Hassan, and judgment and order dated 08.02.2018 in Crl.A.No.142/2016 on the file of V Addl. District and Sessions Judge, Hassan are hereby confirmed. 3. The Registry is directed to send back the trial Court records as well as Sessions Court records along with copy of this order forthwith. Appreciating the able assistance rendered by the learned Amicus Curiae, her remuneration is fixed at Rs.5,000/-. The High Court legal services committee is directed to pay the same. Sd/- (J.M.KHAZI) JUDGE RR List No.: 1 Sl No.: 49