- 1 - NC: 2025:KHC:16488 CRL.RP No. 1526 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL REVISION PETITION NO. 1526 OF 2016 BETWEEN: MR. SURESH KUMAR S/O MAHABAL RAO, AGED ABOUT 37 YEARS, DIRECTOR NASCENT MANAGEMENT & TECHNOLOGY SOLUTIONS, NO 92, 2ND FLOOR, MADHAV ARCADE ASHWATH NAGAR, RMV 2ND STAGE, BANGALORE-560094. …PETITIONER (BY SRI K. SHRIKANTH B., ADVOCATE) AND: DR. MOHAMMED KASIM, ”SITHARA” CHATHODAM, DHARMADAM POST, THALASSERY, KANNUR DISTRICT, KERALA-670106. …RESPONDENT (BY SRI THONTADHARYA R.K., ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND CONVICTION AND SENTENCE DATED 29.02.2016 PASSED IN C.C.NO.31215/2014 ON THE FILE OF XV ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE AND THE ORDER BY CONFIRMING THE ORDER DATED 16.09.2016 PASSED BY THE TRIAL COURT IN CRL.A.NO.384/2016 ON THE FILE OF THE LXII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE AND THEREBY DISMISSED THE APPEAL. AND ETC THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 21.02.2025 COMING ON FOR PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR JUSTICE S RACHAIAH Digitally signed by RENUKA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16488 CRL.RP No. 1526 of 2016 CAV ORDER 1. This Criminal Revision Petition is filed by the petitioner/accused, being aggrieved by the judgment of conviction and order on sentence dated 29.02.2016 in C.C.No.31215/2014 on the file of the XV ACMM and its confirmation judgment and order dated 16.09.2016 in Crl.A.No.384/2016 on the file of the LXII Addl. City Civil & Sessions Judge, Bengaluru, seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner / accused was convicted for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (for brevity, ‘N.I. Act’) 2. The rank of the parties in the Trial Court will be considered henceforth for convenience. The factual matrix of the case: 3. It is the case of the prosecution that the complainant was looking for postgraduate seat (super specialization) in medicine in India for his son. On 14.06.2012, the complainant read an advertisement which came in the newspaper wherein it discloses that super PG Courses on - 3 - NC: 2025:KHC:16488 CRL.RP No. 1526 of 2016 payment basis were available for the academic year 2013-14 at the lowest packages. Accordingly, the complainant contacted phone number which was given in the said advertisement, a person who received the phone call introduced himself as Arunkrishna and he told the complainant that there are management seats available in M.S.Ramaiah Medical College, Bengaluru for DM Cardiology. 4. On 30.07.2012, the said Arunkrishna came to the house of complainant and showed his identity card and assured that he would get seat for his son and he further instructed the complainant that he was acting as an agent for several professional colleges in Begnaluru in getting management seats filled. 5. It is further stated that the said Arunkrishna demanded a sum of Rs.40,00,000/- to get the seat in super specialization course at M.S.Ramaiah College, Bangalore. Accordingly, the complainant had advanced a sum of Rs.40,00,000/- to Arunkrishna by way of cash to get the seat. The said Arunkrishna told that he would keep only - 4 - NC: 2025:KHC:16488 CRL.RP No. 1526 of 2016 Rs.13,00,000/- with him and would pay remaining amount to other partners to get the work done. 6. Even after lapse of two to three months, the complainant could not get any favourable responses from the side of Arunkrishna. Hence, the complainant approached him and asked about the seat. However, the said Arunkrishna expressed his inability for not getting seat to the son of the complainant and he assured that he would return the amount which he had received from the complainant. Accordingly, in the month of September, 2013, Arunkrishna had issued two post dated cheques to discharge his liability. When those cheques were presented for encashment, the same were dishonoured. Therefore, a legal notice was issued. In the meantime, the said Arunkrishna and accused have called the complainant and negotiated the matter. Accordingly, the said Arunkrishna had paid his part of the amount to the complainant i.e,. Rs.13,00,000/-. 7. The accused to clear his liability of Rs.27,00,000/-, issued cheques to the complainant. The complainant said to - 5 - NC: 2025:KHC:16488 CRL.RP No. 1526 of 2016 have received Rs.24,00,000/- on presenting the cheques on different dates. However, the balance amount of Rs.3,00,000/- had to be paid to the complainant. 8. It is stated that the complainant presented the cheque for encashment however, it was returned as unpaid for the reason that “funds insufficient”. Despite notice having been issued to the accused, he did not reply for the said notice. Therefore, the complainant filed a complaint against the accused for the offence punishable under Section 138 of N.I. Act before the Trial Court. 9. The Trial Court after arriving at a conclusion that, the accused had committed an offence punishable under Section 138 of N.I. Act, convicted the accused for the aforesaid offence and sentenced to pay a fine of Rs.3,60,000/-. In default of payment of fine, he has to undergo simple imprisonment for a period of six months. Being aggrieved by the same, the accused has preferred the appeal before the Appellate Court and the Appellate Court dismissed the appeal. - 6 - NC: 2025:KHC:16488 CRL.RP No. 1526 of 2016 10. To prove the case, the complainant got examined himself as P.W.1 and got marked seven documents as Exs.P.1 to P7. On the contrary, the accused examined himself as D.W.1 and got marked two documents as Ex.D1 and D2. 11. Heard Sri. K.Shrikanth B, learned counsel for the petitioner and Sri. Thontadharya R.K., learned counsel for the respondent. 12. It is the submission of learned counsel for the petitioner that the concurrent findings of the Courts below are illegal and unjust. Therefore, the same are liable to be set aside. 13. It is further submitted that even though the entire transaction had taken place between the complainant and one Arunkrishna, the Trial Court has failed to appreciate the evidence properly and fixed the liability on the accused to repay the amount by way of compensation which is unjust and improper. 14. It is further submitted that the defense of the accused has not been considered by the Courts below properly. The accused had stated in his evidence that on behalf of - 7 - NC: 2025:KHC:16488 CRL.RP No. 1526 of 2016 Arunkrishna, he had issued cheques to the complainant on the understanding that whenever the said Arunkrishna deposits the amount to the account of the accused, the accused used to inform the complainant to present the cheque of which he had issued as a security and the complainant had to encash the said cheques. 15. It is further submitted that the complainant had encashed a sum of Rs.24,00,000/-. The balance of Rs.3,00,000/- had to be deposited by Arunkrishna to the account of the petitioner/accused. As the said Arunkrishna had not deposited the amount to the bank, the said cheque had not been encashed. In other words, unless Arunkrishna deposited the amount, the liability on the cheque would not arise. Such being the fact, both the Courts have concurrently held that the petitioner/accused held guilty of the offence which is not proper and not appropriate. Therefore, the same has to be set aside. 16. Per contra, the learned counsel for the complainant vehemently justified the concurrent findings and submitted that once the execution of the cheque is - 8 - NC: 2025:KHC:16488 CRL.RP No. 1526 of 2016 admitted, the presumption has to be raised in favour of complainant. 17. The accused even though is stated to have issued the cheque as security for the amount of which the Arunkrishna had to pay the complainant, the fact remains that the liability on the cheque would be fastened as soon as its execution is admitted. It is needless to say that even the cheque is issued as security, the liability would arise on such cheque. 18. The Trial Court and the Appellate Court have concurrently held that the accused found guilty of the offence which is appropriate and proper. Therefore, interference many not be necessary. As such, he prays to dismiss the petition. 19. Having heard learned counsel for the respective parties and also perused the findings of the Courts below in recording the conviction, it is appropriate to find out as to whether the findings of the Courts below are proper and appropriate. 20. It is a settled principle of law that the accused has to lead cogent evidence to rebut the presumption, in a case - 9 - NC: 2025:KHC:16488 CRL.RP No. 1526 of 2016 where he admitted the execution of the cheque. It is always not necessary to the complainant to prove the case in respect of his financial capacity to lend or advance the loan. 21. In the present case, the transaction between the complainant, Arunkrishna and accused had been admitted and also the accused admitted the issuance of the cheques to the complainant. However, he raised some grounds to deny the liability on the cheque. According to him, though he had issued a cheque to the complainant, that was issued on behalf of Arunkrishna as security, as such, the liability on the cheque according to him would not arise. 22. It is needless to say that even the cheque issued as a security on behalf of the principal borrower, the liability on the cheque would arise and the drawer of the cheque would be liable to pay the amount. Even on considering the evidence of the accused, which does not inspire the confidence of the Court and it cannot be said that the presumption has to be rebutted. Therefore, the findings - 10 - NC: 2025:KHC:16488 CRL.RP No. 1526 of 2016 of the Courts below in recording the conviction, in my considered view are proper and appropriate, Hence, it is not necessary to interfere with the said findings. Hence, the petition has to be dismissed. 23. In the light of the observations made above, I proceed to pass the following:- ORDER The Criminal Revision Petition stands dismissed. Sd/- (S RACHAIAH) JUDGE JS List No.: 19 Sl No.: 2