- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.1163 OF 2022 BETWEEN: SRI B M KRISHNEGOWDA S/O B.B.MANJEGOWDA AGED ABOUT 66 YEARS COFFEE PLANTER RESIDING AT BALUR VILLAGE MUDIGERE TALUK-577132 CHIKKAMAGALURU DISTRICT. ...PETITIONER (BY SRI.N.R.RAVI KUMAR, ADVOCATE) AND: SRI B.S.ANOOP KUMAR S/O LATE SANNAPPA GOWDA AGED ABOUT 64 YEARS COFFEE PLANTER RESIDING AT GOWRAV ESTATE BALUR VILLAGE AND POST MUDIGERE TALUK-577132 CHIKKAMAGALURU DISTRICT. …RESPONDENT (BY SRI.CHIDAMBARA.G.S, 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 JUDGMENT DATED 04.05.2022 IN CRL.A.NO.139/2022 PASSED BY THE PRL.JUDGE (DISTRICT AND SESSIONS) FAMILY COURT AT CHIKKAMAGALURU AND THE JUDGMENT DATED 16.11.2021 IN C.C.NO.636/2016 PASSED BY THE ADDITIONAL CIVIL JUDGE AND J.M.F.C AT MUDIGERE AND CONSEQUENTLY - 2 - ALLOWING THE PETITIONER BY ACQUITTING THE PETITIONER. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16.04.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI CAV ORDER In this petition filed under Section 397 r/w 401 Code of Criminal Procedure, petitioner who is accused before the trial Court has challenged his conviction and sentence for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'N.I Act'), imposed by the trial Court, 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. It is the case of the complainant that during 2014–15, accused was in financial constraint. He was required to pay maintenance to his wife. Later in MC case filed by his wife, accused agreed to pay maintenance in one lump sum and compromised. He was also having loan - 3 - with Kaveri Grameena Bank and CDCC Bank. In addition to it, he was also required to take care of his aged mother. In the above circumstances, he borrowed hand loan of total sum of ₹9 lakhs. Again during February 2015, accused was in need of further finance and offered to sell land in Sy.No.210 of Balur village measuring 1 acre 4 guntas for a sum of ₹14 lakhs and received balance of ₹5 lakhs in addition to the earlier payments of ₹9 lakhs. In this regard, he executed a sale agreement. He postponed execution of the sale deed on the ground that permission is required to be taken from the Government. 3.1 However, accused failed to keep up his promise and backed off, saying that his brother is not agreeing for the sale. Therefore, accused issued cheque dated 05.03.2016 for a sum of ₹14 lakhs, with the direction to get the money presenting the cheque to the Bank. However, when complainant presented the cheque for encashment, it was dishonoured for want of sufficient funds. Complainant got issued a legal notice. Accused avoided the service of notice and therefore, it is returned - 4 - with endorsement. The accused has neither paid the amount nor sent any reply and hence the complaint. 4. Accused appeared and contested the case by pleading not guilty. 5. In order to prove the allegations against accused, complainant has examined himself as PW-1 and got marked Ex.P1 to 7. 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 not led any oral evidence, but got marked one document as Ex.D1. 8. The trial Court accepted the case of the complainant and convicted the accused. He was sentenced to pay fine of ₹19,50,000 with the default sentence of imprisonment. 9. Aggrieved by the same, accused approached the Sessions Court in Crl.A.No.139/2022. However, it came to - 5 - be dismissed by confirming the judgment and order of the trial Court. 10. Aggrieved by the concurrent findings of trial Court as well as the First Appellate Court, accused has approached this Court in the present revision, contending that they are contrary to law, facts and probability of the case. The Courts below have committed error of law and facts in convicting the accused, even though there is sufficient, cogent and convincing material to show that he is not liable. The Courts below have failed to appreciate that in the complaint as well as in the legal notice, complainant has not stated the specific dates of sale agreement. The complainant has also not produced the receipt for having lent ₹5 lakhs. The complainant has claimed that accused has cancelled the sale agreement and issued the cheque, but the sale agreement does not bear the signature of accused or his mother. The documents relied upon by the complainant are not reliable. The fine imposed by the trial Court is on the higher side, by calculating interest at highly exorbitant rate. Viewed from - 6 - any angle, the impugned judgment and order are not sustainable and hence the petition. 11. In support of his arguments, learned counsel representing accused has relied upon the decision in Dattatraya Vs. Sharanappa (Dattatraya)1. 12. On the other hand, learned counsel representing the complainant supported the impugned judgment and order and submit that for his legal necessity, accused had borrowed a total sum of ₹9 lakhs. Again when he requested for further loan and offered to sell land measuring 01 acre 04 guntas for ₹14 lakhs and accused and his mother executed the sale agreement and received balance consideration of ₹5 lakhs. However, when accused went on postponing execution of the sale and ultimately expressed his inability on the ground that his brother is not in favour of executing the said property, accused has issued the subject cheque. However, it came to be dishonoured for want of sufficient funds and after issuing legal notice and complying with all the formalities complaint is filed. 1 2024(3)KCCR 2589(SC) - 7 - 12.1 He would further submit that the accused though cross-examined the complainant at length with regard to execution of the sale agreement, he has failed to come up with any reasons for showing the subject cheque. He has also failed to rebut the presumption. Considering the evidence led by the complainant, rightly the trial Court and Sessions Court have accepted the contention of the complainant and convicted him. Taking into concentration the duration of the transaction and also conduct of the party, the punishment imposed is just and reasonable and pray to dismiss the petition. 13. In support of his arguments, learned counsel representing complainant has relied upon the following decisions: (i) Don Ayengia Vs. State of Assam and Anr. (Don Ayengia)2 (ii) M/s Kalamani Tex and Anr. Vs. P.Balasubramanian (M/s Kalamani Tex)3 (iii) Rajesh Jain Vs. Ajay Singh (Rajesh Jain)4 2 (2016) 3 SCC 1 3 (2021) 5 SCC 283: AIROnline 2021 SC 82 4 (2023) 10 SCC 148: AIR Online 2023 SC 807 - 8 - 14. Heard arguments of both sides and perused the record. 15. In the light of the ratio in the decision relied upon by the parties, it is necessary to examine whether the trial Court and Sessions Court are justified in convicting the accused or there are any grounds for interference by this Court in exercise of revisionary jurisdiction. 16. Thus, it is the specific case of complainant that during 2013 and 2014 accused had borrowed a sum of ₹9 lakhs and 5 lakhs, respectively to meet his financial exigency and again during 2016 when he requested for further hand loan of ₹5 lakhs and when complainant refused his request, accused offered to sell land standing in the name of his mother for a total sum of ₹14 lakhs and both of them executed the sale agreement and received ₹5 lakhs, which was transferred to the account of accused. However, when they failed to execute the sale deed, accused issued the subject cheque for ₹14 lakhs. - 9 - 17. Accused is not disputing the fact that the subject cheque is drawn on his account and it bears his signature. Therefore, the presumption under Section 139 of N.I Act comes into play, placing the initial burden on the accused to rebut the presumption and to establish that the cheque is not issued towards repayment of any legally recoverable debt or liability and on the other hand, establish the circumstances in which the cheque has reached the hands of complainant. 18. It is pertinent to note that the legal notice is sent to the accused is returned with an endorsement that on all the seven days during which the postman went to serve the notice accused was not available in the given address. In other words, despite intimation, the accused has not chosen to receive the legal notice. It is pertinent to note that the accused is not disputing his address to which the legal notice was sent. In fact in the complaint, also, the same address is given to which the legal notice was sent. 19. Under Section 27 of the General Clauses Act when any Central Act or Regulation made after the - 10 - commencement of the General Clauses Act, authorizes or requires any document to be served by post, whether the expression service or either of the expressions give or send, or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of the post. 19.1 When the legal notice is sent to the accused through registered post to his correct address and when it is not returned either served or unserved, it is deemed to be served. It is not open to the accused to claim that the notice is not served on him. He has also failed to prove otherwise i.e, notice is not served. In the above fact circumstances it is held that the notice is duly served. 20. Therefore, it is presumed that the legal notices served, unless the contrary is proved. Admittedly, accused has not sent reply to legal notice and spell out his defence - 11 - at the earliest available opportunity. However, it will not prelude him from coming up with any specific defence and establishing the same. Unfortunately, the accused has not come up with any specific defence. Despite lengthy cross- examination of the complainant with regard to the execution of sale agreement, not even a single suggestion is made as to how the cheque drawn on his account, bearing his signature has reached the hands of complainant. The sale agreement at Ex.P6 clearly state that earlier to the execution of the said document, complainant has paid ₹9 lakhs. The balance of ₹5 lakhs is paid through cheque dated 18.02.2015. 21. When the accused and his mother failed to execute the sale deed, the complainant has received the subject cheque and endorsed on the back of the sale agreement that it is cancelled and he has received back the sale consideration paid to the accused and his mother. The accused absolutely is not having any explanation as to the execution of the sale agreement and also the cheque. Consequently, he has failed to rebut the presumption by - 12 - discharging the initial burden placed on him. On the other hand, the complainant through the oral and documentary evidence has proved his case. 22. Taking into consideration the oral and documentary evidence placed on record the trial Court as well as the Sessions Court have rightly held that the accused is guilty of the offence punishable under Section 138 of the N.I Act. Considering the fact that both complainant and accused are estate owners, engaged in growing and the sale of coffee and considering the period during which loan transaction and subsequent sale agreement has taken place, rightly the trial Court imposed fine of ₹19,50,000/- and it is confirmed by the Sessions Court. Consequently, this Court is of the considered of opinion that no grounds are made out calling for interference. 23. In the result the petition fails and accordingly the following: - 13 - ORDER (i) Petition filed by the accused under Section 397 r/w 401 Cr.P.C is hereby dismissed. (ii) The impugned judgment and order dated 16.11.2021 in C.C.No.636/2016 on the file of Addl. Civil Judge and JMFC, Mudigere and judgment and order dated 04.05.2022 in Crl.A.No.139/2022 on the file of Prl.Judge (District and Sessions), Family Court at Chikkamagaluru are confirmed. (iii) The Registry is directed to send back the trial court and Sessions Court records along with copy of this order forthwith. Sd/- (J.M.KHAZI) JUDGE RR