- 1 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 1271 OF 2019 BETWEEN: 1. H. MOHAN SINGH, PROPRIETOR, SRI. BHAVANI AGENCIES, NO.4207, 49TH MAIN, 2ND STAGE KUMARASWAMY LAYOUT BENGALURU - 560078 …PETITIONER (BY SRI. MURALIDHAR S.R., ADVOCATE) AND: 1. M/S. SHUBHA ADVERTISING NO.55, SHOP STREET, BASAVANAGUDI BENGALURU – 560 004 REPRESENTED BY ITS PROPRIETOR SRI M.S.RAMAMURTHY [SINCE DECEASED] REPRESENTED BY HIS LRS SRI. SHARATH S/O LATE RAMAMURTHY AGED ABOUT 40 YEARS C/O. M/S. SHUBHA ADVERTISING NO.55, SHOP STREET, BASAVANAGUDI BENGALURU – 560004 (AMENDED VIDE COURT ORDER DATED 08.01.2025) …RESPONDENT (BY SRI. DHANANJAYA D.L., ADVOCATE) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 THIS CRL.RP IS FILED UNDER SECTION 401 R/W 397 OF THE CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION PASSED BY THE 25th ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BENGALURU IN C.C.NO.18966/2013 DATED 02.06.2018 AND THE IMPUGNED JUDGMENT CONFIRMING THE SAID CONVICTION VIDE DATED 11.09.2019 IN CRL.A.NO.1133/2018 PASSED BY THE LEARNED LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH-66) AND ACQUIT THE PETITIONER. THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER Heard learned counsel for petitioner and learned counsel for the respondent. 2. This criminal revision petition is filed against conviction and sentence passed in C.C.No.18966/2013, wherein petitioner/accused was convicted for the offence punishable under Section 138 of N.I. Act and directed to pay fine of Rs.6,25,000/-, defraying an amount of Rs.5,000/- to the State. The same was challenged in Crl.A.No.1133/2018 and the First Appellate Court confirmed the order of the Trial Court. 3. The factual matrix of the case of the complainant before the Trial Court while filing the complaint is that the complainant is an advertising company having its office at - 3 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 Bengaluru and accused is one of the regular customer of the complainant. That during the course of business, the accused had placed orders for advertisement. As per the orders, the complainant advertised the same and issued bills to the accused. The complainant also contend that after issuance of bills for total Rs.8,00,000/-, the accused towards discharge of his liability has issued Cheque dated 15.11.2012 for Rs.6,00,000/- and on presentation, the same has returned dishonoured with an endorsement ‘payment stopped by the drawer’ vide endorsement dated 16.02.2013. Hence, the complainant issued notice, the same was served, but the accused neither given reply to the notice nor complied with the demand made by the complainant. Hence, complaint was filed, the Trial Court taken cognizance, issued summons and secured the accused. The accused did not plead guilty and claimed for trial. 4. In order to prove the case, complainant examined himself as P.W.1 and got marked the documents as Exs.P1 to P19. The accused was subjected to 313 statement and thereafter, he examined himself as D.W.1 and got marked the documents as Exs.D1 to D8. - 4 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 5. The Trial Court having considered the evidence of P.W.1 and also documentary evidence, particularly document of Ex.P1-cheque, signature of the accused marked as Ex.P1(a), bank endorsement, legal notice, acknowledgement and reply notice and particularly taking note of Exs.P7 to P11-invoices and Exs.P12-P15-bank statement of the accused, comes to the conclusion that there was transaction between the complainant and the accused and accused was due to the complainant. Hence, the accused has issued Cheque and did not accept the theory and defence of the accused and convicted the accused and passed an order of sentence. 6. Being aggrieved by the said order of the Trial Court, an appeal is filed before the First Appellate Court and the First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, comes to the conclusion that accused has tried to set up the defence that he has not issued the Cheque and signature on the Cheque not belongs to him and complainant has stolen the Cheque and presented the same. In order to probabilize the said defence, he has deposed that after coming to know about the missing of the Cheque as per the instructions of his banker, he has given - 5 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 requisition for stop payment. The First Appellate Court also with regard to missing of the Cheques observed that the same cannot be accepted, because the only thin he has done is at the instructions of the banker, he has issued stop payment after writing the stop payment to the banker, the Cheque in question was issued i.e., on 15.11.2012 and he has not given any police complaint. The First Appellate Court also taken note of the fact that the documents which have been produced clearly disclose that there was transaction between the complainant and the accused and payments are made in connection with advertising business and did not accept the defence of the accused and concurred with the judgment of the Trial Court. Being aggrieved by the conviction and sentence passed by the Trial Court and confirmation made by the First Appellate Court, the present revision petition is filed before this Court. 7. The main contention of learned counsel of the petitioner before this Court is that Cheque which was presented is a stale Cheque and the same has not been disputed. The document at Ex.D4 is clear that the Cheque was not given for realization and endorsement given is stop payment and also stale Cheque. Learned counsel also brought to notice of this - 6 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 Court cross-examination of P.W.1 and also the Cheque dated 15.11.2012 which was presented for encashment on 14.02.2013 and also brought to notice of this Court evidence of P.W.3-Bank Manager with regard to stale Cheque is concerned and would vehemently contend that transaction is doubtful transaction. The witness P.W.1 was cross-examined and elicited answer with regard to presentation of Cheque dated 15.11.2012 sent for realization on 14.02.2013 as per deposition of P.Ws.1 and 3-Banker. 8. Learned counsel for the petitioner, in support of his argument, relied upon the judgment in SHRI ISHAR ALLOYS STEELS LTD. V. JAYASWALS NECO LTD. reported in 2001 CRI.L.J.1250 and brought to notice of this Court head note (B)-dishonour of Cheque, essential ingredients – presentation within six months from date on which it is drawn, has to be on drawee bank on which Cheque is drawn either directly or indirectly through collecting bank of payee, use of direct article “The” in words “The bank”, indicates this intention of legislature regarding validity of the Cheque. - 7 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 9. The counsel also relied upon the judgment in B. SUNITHA VS. STATE OF TELENGANA reported in AIR 2017 SC 5727, wherein discussion was made with regard to legally enforceable debt and the Apex Court observed that mere issuance of Cheque by client may not debar advocate from contesting liability. If liability is disputed, advocate has to prove contract. 10. The counsel also relied upon the judgment in VIJAYEE SINGH AND OTHERS VS. STATE OF U.P. reported in AIR 1990 SC 1459, wherein discussed was made with regard to Sections 101, 102, 103 and 104 of Evidence Act, case of accused whether comes within exceptions, burden lies on him to prove-Gets discharged if probability is proved or reasonable doubt about prosecution case is raised and also brought to notice of this Court discussion that the general burden of establishing the guilt of accused is always on the prosecution and it never shifts. 11. The counsel also relied upon the judgment in M/S. KUMAR EXPORTS VS. M/S. SHARMA CARPETS reported in AIR 2009 SC 1518. Learned counsel referring this judgment - 8 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 would contend that Cheque issued for discharge of sale consideration was dishonoured. The defence case that there was no sale and therefore, no liability existed, absence of sale proved by examining official of Sales Tax Department to show that no sale was shown in return, Bill produced by complainant neither bearing his signature or signature of accused, Accounts books or stock register not produced by complainant to prove sale. Hence, held that Cheques were not issued for discharge of liability and accused is entitled for acquittal. 12. Learned counsel also relied upon the judgment in RAJ KUMAR SINGH ALIAS RAJU ALIAS BATYA VS. STATE OF RAJASTHAN reported in 2013 CRI.L.J.3276. The counsel referring this judgment would contend that circumstances which are not put to accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded from consideration and discussed with regard to scope of examining the accused under Section 313 Cr.P.C. 13. Per contra, learned counsel for the respondent would vehemently contend that case of the accused is total denial with regard to transaction is concerned. But, the - 9 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 complainant marked the document of invoices as Exs.P7 to P11 for having published the advertisement in terms of contract between the complainant and accused and Ex.P1 was issued for Rs.6,00,000/- out of the liability of Rs.8,00,000/-. The counsel also brought to notice of this Court Ex.P2, wherein endorsement is given as stop payment and no endorsement of stale cheque as contended. The counsel would contend that when notice was issued, reply was given and brought to notice of this Court paragraph No.6 regarding denial of transaction and contend that the accused has not taken the contention of loss of Cheque or Cheques are stolen. The counsel would vehemently contend that when the Cheque is denied and the same not bears the signature of the accused, contrary defence was taken. The counsel would further contend that document of Exs.D4 and D6 are not proved and the document of Ex.P12- bank statement, clearly disclose that there was transaction between the complainant and the accused and payments are also made. Hence, it is clear that very defence that there was no transaction between the complainant and the accused is falsified. - 10 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 14. Learned counsel also brought to notice of this Court Ex.D4-statement of account which clearly disclose that intermediate Cheques are utilizeds and though, it is stated that entire Cheque book was lost, the very statement at Ex.D4 clearly disclose that some other Cheques in continuation of said Cheque book were transacted. Learned counsel also brought to notice of this Court Ex.D1, letter issued to the bank authorities stating that Cheque Nos.473525 and 477502 to 477511, 477512, 477514 to 477519, 477522, 477524 and 477525 are misplaced in between the above mentioned serial number Cheque books. If any Cheques of above mentioned serial number arrives for clearance, stop the payment and it clearly discloses that false defence was taken that Cheques are stolen and the defence has not been proved. 15. Having heard learned counsel for the petitioner and learned counsel for the respondent and also considering the principles laid down in the judgments referred supra, the points that would arise for consideration of this Court are: (i) Whether Trial Court committed an error in passing an order of conviction and sentence against the petitioner and confirmation of the - 11 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 same by the First Appellate Court and whether it requires interference by exercising revisional jurisdiction? (ii) What order? Point No.(i) 16. Having heard learned counsel for petitioner and learned counsel for the respondent, the main case of the complainant before the Trial Court is that the complainant is an advertising company having its office at Bangalore and accused is one of the regular customer. It is also the case of the complainant that, at the instance of the accused, advertisement was made and bills are issued and against the bills, Cheque for Rs.6,00,000/- i.e., subject matter of Cheque was given. When the same was presented, endorsement was issued that payment stopped by drawer dated 16.02.2013 and Cheque was dated 15.11.2012, notice was issued and reply was given. In the document at Ex.P3-legal notice, it is stated that Cheque is returned and asked to make the payment of Rs.8,00,000/- within 15 days and also mentioned that Cheque given has returned with an endorsement ‘stop payment’. It is not in dispute that notice was served and acknowledgement as per Ex.P5 is also produced and reply was given. Having considered - 12 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 Ex.P6-reply, the very transaction regarding advertising was denied and also denied with regard to issuance of Cheque and even endorsement of payment stopped by drawer as false. In the reply notice, it is stated that he is doing advertisement business in the name and style M/s. Bhavani Agencies and admitted that he is doing the business. But, he contend that during the period from September 2011 to January 2013 the accused was under medical treatment and was unable to do his office work as earlier due to loss of memory frequently. At that point of time, the complainant has stolen few documents from the office of the accused and disputed Cheque bearing No.477522 dated 15.11.2012 and only with an intention to make wrongful gain against the accused, presented the said Cheque and Cheque was stolen by him and the client has instructed his banker to stop payment of said Cheque. 17. Having perused the reply also, specific defence was taken that Cheque was stolen and having perused the document of Ex.D1, when letter was given to the Bank, it is rightly pointed out by learned counsel for the petitioner, Cheque bearing Nos.473525 and 477502 to 477511, 477512, 477514 to 477519, 477522, 477524 and 477525 have been - 13 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 misplaced in between the above mentioned serial number Cheque books. If any Cheques of above mentioned serial number arises for clearance, please stop the payment. It has to be noted that having received the same, an endorsement is made correcting the Cheque numbers not the entire Cheque book and particularly, some of the Cheque numbers are mentioned and the same is in the handwriting of bank official. 18. Learned counsel appearing for the respondent/complainant also brought to notice of this Court Ex.D4, wherein payments are made in respect of some of the Cheques, even inspite of Ex.D1 and Ex.D6 being produced before the Court, wherein endorsement is issued by the bank, payment stopped and also stale Cheque. As against the document of Ex.P6, the complainant produced the document of Ex.P2, wherein endorsement is given that payment stopped by drawer and there is no endorsement of stale Cheque. Learned counsel brought to notice of this Court that Ex.D6 is created for the purpose of this case to prove the defence of stale Cheque. Having perused Ex.P2, there was no such endorsement and in Ex.D6-letter, it is mentioned both stop payment and also stale Cheque. Having considered the material on record, it is not in - 14 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 dispute that Ex.P1-Cheque pertains to the account of the petitioner, but he totally denied the issuance of Cheque. 19. It is also important to note that when the petitioner disputes very Cheque that it does not contain his signature and Cheque book was stolen, no specific defence was taken that he had signed the same and kept in the office and even assuming that signature not belongs to him, no specific defence was taken and if it is not his signature, he ought to have sent the same to Handwriting Expert, when he denies the very transaction in the reply at Ex.P6 and the same is not sent for Handwriting Expert. However, in the reply notice, it is stated that Cheque was stolen and no complaint was given, when the defence was taken that Cheque was stolen which was kept in his office and when he was having medical issues, he only gave instructions to the bank to stop payment and answer elicited from the mouth of D.W.1 in the cross-examination is very clear that the nature of his business is taking orders of advertisement to be published in newspaper and the fact that he is doing the said business in the name of M/s. Bhavani Agencies and as against the denial of very transaction, Cheque is issued in the said name which evidence the fact that - 15 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 payments are made in the name of M/s. Bhavani Agencies in favour of the complainant. Hence, the very document of Exs.P12-P15 falsifies the same. 20. The other contention that both the Courts failed to consider the material on record also cannot be accepted, when voluminous documents are placed before the Court with regard to the transaction is concerned, though the accused disputes the same, particularly the Cheque was stolen in terms of Ex.P6- reply, but the same is contrary to the document of Ex.D1 and there are corrections with regard to mentioning of specific Cheque numbers and all these factual aspects were taken note by the Trial Court while passing the order. Apart from that Exs.P7 to P11 are invoices issued to the respondent and if no transaction between the complainant and the accused, what made him to make payment in favour of the complainant, there is no explanation. 21. With regard to the other contention of the petitioner that Cheque has to be presented within a time bound period, no doubt in the judgment reported in 2001 CRI.L.J.1250, the Apex Court observed with regard to validity of the Cheque and - 16 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 presentation of the same within six months. In the case on hand, Cheque is dated 15.11.2012 and the same was presented on 14.02.2013 and when there is no endorsement by the bank that the Cheque is a stale Cheque in terms of Ex.P2 and only Ex.D6 is placed before the Court, including the endorsement of stop payment as well as stale Cheque and Cheque was presented within three months on 14.02.2013 is not in dispute. 22. It is also important to note the principles laid down in the judgment reported in AIR 2017 SC 5727 with regard to legally enforceable debt is concerned and also principles laid down in the judgment reported in AIR 1990 SC 1459 with regard to burden of proof is concerned, complainant has proved the fact that Cheque was issued. I have already pointed out that when the petitioner/accused disputes the very issuance of Cheque in favour of the complainant, he did not send the Cheque for Handwriting Expert, since he denies his signature and contend that the same was not given to the complainant. Hence, the said judgments will not come to the aid of the petitioner. The principles laid down in the judgment reported in AIR 2009 SC 1518 is that Bill produced by complainant neither bears his signature or signature of accused, Accounts - 17 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 books or stock register not produced by complainant to prove sale. In the case on hand, though Exs.P7 to P11 are issued in favour of the accused, the same not contains the signature. But, the fact is that there was transaction between the complainant and the accused and the same is evident in terms of Ex.P12 bills are also issued in terms of Exs.P7 to P11 to the accused. 23. Having taken note of the material on record in toto, both the Courts have not committed any error in coming to the conclusion that there was transaction between the complainant and the accused, particularly taking note of defence of the accused which is a total denial with regard to the transaction is concerned and to prove the fact that payment is made in favour of the complainant, no documents are produced. Apart from that, with regard to the business is concerned, in the reply itself, the accused stated that he is doing advertisement business in the name of M/s. Bhavani Agencies and the document placed before the Court clearly discloses payment made in the name of M/s. Bhavani Agencies in favour of the complainant. When such materials are available before the Court, the very contention of the counsel that there was no - 18 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 transaction between the complainant and the accused cannot be accepted, though the accused dispute the Cheque at Ex.P1. 24. I have already pointed out that the document of Cheque is not sent to Handwriting Expert. If really he has not issued the Cheque in favaour of the complainant, what prevented him in sending the same to Handwriting Expert. No doubt, learned counsel for the petitioner relied upon the judgment with regard to Section 313 Cr.P.C. is concerned i.e., object of recording the statement under Section 313 Cr.P.C. is with regard to explaining the incriminating circumstance. In the case on hand, statement under Section 313 Cr.P.C. of the accused was recorded. Having perused 313 statement of the accused also, when incriminating evidence was put to mouth of the accused, he has totally denied the transaction and he has stated nothing in his 313 statement. When such being the case, the very contention of learned counsel for the petitioner cannot be accepted and the judgments relied upon by the learned counsel for the petitioner will not come to the aid of the petitioner invoking Section 313 Cr.P.C, having reassessed the material on record. - 19 - NC: 2025:KHC:6338 CRL.RP No. 1271 of 2019 25. The scope of the revision is very limited with regard to appreciation of evidence. When the documents are placed by the complainant as well as the accused with regard to the contention is concerned, this Court examined the same meticulously whether the judgment of the Trial Court and the First Appellate Court suffers from perversity and no such perversity is found in the reasoning of both the Courts and both the Courts have elaborately discussed the material available on record i.e., both oral and documentary evidence and scope of revision is also very limited and if the finding of the Trial Court is not legal, then the Court can interfere by exercising the revisional jurisdiction and unless the judgment of Trial Court and the First Appellate Court suffers from infirmity, legality and correctness, question of exercising the revisional jurisdiction does not arise. Hence, I do not find any merit in the revision petition. Accordingly, the criminal revision petition is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 57