- 1 - NC: 2025:KHC:11521 CRL.RP No. 1148 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO. 1148 OF 2017 BETWEEN: MR. MAXWELL PRINCE MONTHEIRO S/O OSWALD, AGED ABOUT 34 YEARS, R/AT H.NO.1-N-6-460, MAHIMA SHAD ROAD, ASHOK NAGAR, MANGALORE. D.K-575 006. …PETITIONER (BY SRI. KETHAN KUMAR, ADVOCATE) AND: MR. DEVESHCHANDRA TIWARI S/O VINOD CHANDRA TIWARI, AGED ABOUT 32 YEARS, R/AT F.NO.71, MRPL TOWNSHIP, KUTHETHOOR, VIA KATIPALLA MANGALORE-560 001. …RESPONDENT (BY SRI.VINOD PRASAD, 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 20.09.2017 IN CRL.A.NO.198/2015 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALORE CONFIRMING THE JUDGMENT OF THE JUDICIAL MAGISTRATE FIRST CLASS-V Digitally signed by REKHA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:11521 CRL.RP No. 1148 of 2017 COURT, MANGALORE, DATED: 09.06.2015 IN C.C.NO.266/2013. 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 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, imposed by the trial Court, which came to be confirmed by the Session Court, by dismissing the appeal filed by him. 2. For the sake of convenience, parties are referred to by their ranks before they trial Court. 3. It is the case of the complainant that during the month of January 2011, accused borrowed hand loan of ₹4 lakhs for his urgent commitments, promising to repay the same within two months. When he failed to fulfill his promise, on repeated request and demand, on 22.11.2012, accused issued cheque dated 22.11.2012 for - 3 - NC: 2025:KHC:11521 CRL.RP No. 1148 of 2017 ₹4 lakhs. However, when presented the cheque for encashment, it was dishonoured with endorsement, ‘there is instructions to stop payment by the drawer’. Complainant got issued legal notice and it is duly served on the accused. However, he has neither paid the amount due nor sent any reply to the legal notice. 4. Accused contested the case by pleading not guilty. 5. In order to prove his case, complainant examined himself as PW-1 and relied upon Ex.P1 to 4. 6. During the cross-examination of PW-1 and during the course of his statement under Section 313 Cr.P.C, the accused has taken up a defence that complainant has invested ₹4 lakhs in M/s Nano Forex Institution and it was not in loan given to him. 7. Accused has not led any defence evidence. - 4 - NC: 2025:KHC:11521 CRL.RP No. 1148 of 2017 8. The trial Court accepted the case of the complainant and convicted the accused and sentenced him to pay of ₹4,10,000/- with default sentence. 9. Accused challenged the same before the Sessions Court in Crl.A.No.198/2015, which came to be dismissed by upholding the judgment and order of the trial Court. 10. Aggrieved by the same, the accused is before this Court, contending that the judgment and order of the trial Court and Sessions Court are perverse, erroneous and not sustainable in law. Complainant has not established the transaction and his financial capacity to lend ₹4 lakhs. Both Courts have failed to appreciate that ₹4 lakhs is invested by the complainant in M/S Nano Forex and in this regard litigation was pending since 2010. Both Courts have failed to appreciate the fact that legal notice is not served on the accused. Complainant has failed to prove his case beyond reasonable doubt and pray to set aside the impugned judgments and orders and acquit the accused. - 5 - NC: 2025:KHC:11521 CRL.RP No. 1148 of 2017 11. On the other hand learned counsel representing the complainant supported the judgments and orders passed by the trial Court as well as the Session Court and sought for dismissal of this petition. 12. Heard arguments and perused the record. 13. The fact that the cheque in question belong to the accused, drawn on his account maintained with his banker and it bears his signature is not in dispute. Therefore, presumption under Section 139 of 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. According to the complainant, the legal notice is served on the accused, as per acknowledgement at Ex.P4. Admittedly, accused has not sent any reply to the legal notice. Even though during the cross-examination of PW-1, a suggestion is made that notice is not served on the accused, he has not disputed his address to which the notice is sent. The acknowledgement at Ex.P4 reveal - 6 - NC: 2025:KHC:11521 CRL.RP No. 1148 of 2017 that it is received by one Jacinta, who appears to be the relative of accused, since it is his residential address. Accused has not clarified this aspect. 14. Under Section 27 of the General Clauses Act when any Central Act or Regulation made after the 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. 15. Thus, despite due service of notice, the accused has not chosen to send reply. Even though sending reply to the legal notice is not mandatory, it would give - 7 - NC: 2025:KHC:11521 CRL.RP No. 1148 of 2017 opportunity to the accused to come up with his defence at the earliest available opportunity. 16. Accused has not led any defence evidence. However, during the cross-examination of PW-1, he has taken a defence that ₹4 lakhs paid by complainant was an investment in M/s Nano Forex. He has made a suggestion that one Movin is a common friend of complainant and accused and that he was doing business in shares. Complainant has denied that he has invested ₹4 lakhs through the said Movin. If at all ₹4 lakhs paid by complainant was an investment, the accused is not having an explanation as to why he would issue a cheque to the complainant, for the alleged investment made by complainant with Movin, a common friend. 17. Through the cross-examination of PW-1, accused has challenged the financial capacity of complainant. The evidence of PW-1 establish the fact that at the relevant point of time, he was drawing basic of ₹34,000 plus (+) 100% of it as dearness allowance + 50% - 8 - NC: 2025:KHC:11521 CRL.RP No. 1148 of 2017 of it towards other allowances. He was also given residential accommodation for which certain sum was deducted as rent. He has also deposed that out of ₹4 lakhs he had withdrawn ₹3,90,000/- from his account and remaining ₹10,000/- were available with him. 18. It is pertinent to note that the accused has not disputed the evidence of complainant with regard to his financial capacity. In fact, a suggestion is made to the complainant that accused has issued the cheque to him at the same time when he paid money to him. Even though the complainant has not produced his salary certificate or account extract to show that he has withdrawn ₹3,90,000/- from his account, in the light of the specific defence taken by the accused, he is admitting the fact that ₹4 lakhs was paid by the complainant. The very suggestion that complainant has invested ₹4 lakhs in shares goes to show that accused admit his financial capacity. 19. Of course, accused has not examined the said Movin to prove that ₹4 lakhs paid by complainant was an - 9 - NC: 2025:KHC:11521 CRL.RP No. 1148 of 2017 investment in shares. On perusal of oral and documentary evidence placed on record and in the light of cross examination of PW-1, this Court is not having any hesitation to hold that, accused has taken a false defence for the sake of defence and he has failed to establish the same. 20. Taking into consideration the oral and documentary evidence on record the trial Court as well as the Sessions Court have come to a right conclusion that the accused has failed to rebut the presumption and on the other hand, complainant has established the allegations against the accused and held him guilty of offence under Section 138 of N.I Act. The findings and conclusions arrived at by both Courts is consistent with the evidence on record and this Court finds no perversity calling for interference. In the result, the petition fails and accordingly the following: - 10 - NC: 2025:KHC:11521 CRL.RP No. 1148 of 2017 ORDER (i) Petition filed by the accused under Section 397 r/w 401 Cr.P.C is hereby rejected. (ii) The impugned judgment and order dated 09.06.2015 in C.C.No.266/2013 on the file of JMFC-V Court, D.K, Mangaluru and judgment and order dated 20.09.2017 in Crl.A.No.198/2015 on the file of I Addl.District and Sessions Judge, D.K, Mangaluru are hereby 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.: 56