- 1 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 1431 OF 2015 BETWEEN: M/S. BHOJA GARDEN RESTAURANT REPRESENTED BY ITS PROPRIETOR JAGADISH, AGED ABOUT 49 YEARS SRINIVAGILU, VIVEKANAGAR POST EJIPURA, BANGALORE – 560 047. …PETITIONER (BY SRI VAIDYA RAVI LAXMINARAYANA, AND SRI M R RAVI KUMAR, ADVOCATES) AND: NAGARAJA AGED ABOUT 43 YEARS S/O NANJUNDEGOWDA R/AT No.100, ‘BHANU HOUSE’ 4TH CROSS, MANJUNATHA LAYOUT T.C. PALYA MAIN ROAD K.R. PURAM BANGALORE – 560 036. …RESPONDENT (BY SRI MADHUSUDHAN M N, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE XX A.C.M.M., Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 BANGALORE IN C.C.No.3604/2013 DATED 17.11.2014 AND SET ASIDE THE JUDGMENT PASSED BY THE LXIII ADDL. CITY CIVIL AND S.J. (CCH-64), BANGALORE IN CRL.A.No.1384/2014 DATED 26.11.2015 AND ACQUIT THE PETITIONERS IN THE SAID C.C.No.3604/2013 ON THE FILE OF XX A.C.M.M., BANGALORE AND ETC., THIS PETITION COMING ON FOR HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER This Criminal Revision Petition is directed against the judgment dated 26.11.2015 passed in Crl.A.No.1384/2014 by the LXIII Additional City Civil and Sessions Judge, Bengaluru wherein conviction of the petitioner by judgment dated 17.11.2014 passed in C.C.No.3604/2013 by the XX Additional Chief Metropolitan Magistrate, Bengaluru for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I Act” for brevity) and sentenced to pay fine of Rs.2,55,000/- and in default to undergo simple imprisonment for a period of 03 months has been affirmed. - 3 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 2. Heard learned counsel for the petitioner and learned counsel for the respondent. 3. The case of the respondent –complainant before the trial Court is that during the month of June-2012, the petitioner –accused had borrowed hand loan of Rs.2,50,000/- (rupees Two Lakhs Fifty Thousand only) from the respondent –complainant and promised to repay the same within 04 months. When the respondent – complainant demanded for repayment of loan amount then the petitioner –accused has issued cheque bearing No.336882 dated 21.11.2012 for Rs.2,50,000/- (rupees Two Lakhs Fifty Thousand) in favour of the respondent – complainant and it was drawn on the Axis Bank Ltd., Koramangal Industrial Layout, Bengaluru. The respondent -complainant presented the said cheque for encashment and it came to be dishonoured for a reason “funds insufficient” under bank memo 22.11.2012. The respondent -complainant got issued statutory notice to the - 4 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 accused. Inspite of service of said notice, the petitioner – accused failed to repay the cheque amount within 15 days. Therefore, the respondent –complainant has initiated proceedings against the petitioner –accused for offence punishable under Section 138 of the N.I Act. 4. The respondent –complainant has examined himself as P.W.1 and got marked documents as Ex.P1 to P8. The statement of the accused has been recorded under Section 313 of Cr.P.C. Learned Magistrate after hearing arguments on both side and appreciating evidence on record has convicted the petitioner –accused for the offence punishable under Section 138 of the N.I Act and sentenced to pay fine of Rs.2,55,000/- (rupees Two Lakhs Fifty Five Thousand only) and in default to undergo simple imprisonment for a period of 03 months. The said judgment of conviction has been challenged by the petitioner -accused before the Sessions Court in Crl.A.No.1384/2014. The said appeal came to be - 5 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 dismissed on merits by judgment dated 26.11.2015 affirming the judgment of conviction passed by the trial Court. 5. Learned counsel for the petitioner -accused would contend that the respondent –complainant was running bar and restaurant of the petitioner –accused and as bar license is in the name of the petitioner –accused, the respondent –complainant used to purchase liquor in the name of the petitioner –accused and for that the petitioner –accused used to issue signed cheque to the complainant. The respondent –complainant has misused the said cheque. The respondent –complainant who has been examined as P.W.1 has admitted the receipt of amount from the petitioner –accused during the month of March -2010 and April -2010 through cheques. The said fact itself establishes the defence of the petitioner – accused. The petitioner –accused has rebutted the presumption drawn under Section 139 of the N.I Act. He - 6 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 further contended that notice –Ex.P3 has not been served on the petitioner –accused. Ex.P7 –Postal endorsement pertains to the second address contained in Ex.P3 –notice and it is vague address wherein the petitioner –accused was not residing. The complainant in his evidence has admitted that the address of the accused as mentioned in the complaint –Ex.P8 is correct. The address mentioned in Ex.P8 -complaint is not that addresses mentioned in Ex.P3 –notice. He further submits that service of statutory notice is mandatory under Clause (b) of Section 138 of the N.I Act. As service of notice is not established, the offence punishable under Section 138 of the N.I Act is not attracted. On that point he placed reliance on the decision of the Co-ordinate Bench of this Court in the case of Yelahanka Merchant Finance Co-operative Pvt. Ltd Vs S.N. Renukaputtaswamy1. Without considering all these aspects, learned Magistrate has erred in convicting the petitioner –accused for offence punishable under 1 In Crl.No.50/2012 decided on 10.09.2012 - 7 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 Section 138 of the N.I Act and the Appellate Court has failed to re-appreciate the evidence on record and erred in affirming the judgment passed by the trial Court. 6. Learned counsel for the respondent – complainant would contend that Ex.P7 –Postal endorsement indicate that notice sent to one of the address of the petitioner –accused has been served. The petitioner –accused has not entered into witness box to establish that he was not residing in the said address. The notice sent to another address is that of the address mentioned in the complaint except name of restaurant. The signature on the cheque has been admitted. The accused has failed rebut the presumption. Therefore, learned Magistrate has rightly convicted the petitioner – accused and the Appellate Court has rightly confirmed the judgment of conviction passed by the trial Court. 7. Having heard learned counsels, this Court has perused the impunged judgments and trial Court records. - 8 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 8. It is specific case of the respondent – complainant that the petitioner –accused had borrowed Rs.2,50,000/- (rupees Two Lakhs Fifty Thousand only) during the month of June -2012 and in order to make repayment of the same has issued cheque –Ex.P1. The signature on Ex.P1 –cheque has been admitted by the petitioner –accused. As signature on the cheque –Ex.P1 is admitted, the presumption has to be drawn under Section 139 of the N.I Act that the cheque is issued for discharge of debt. The said presumption is rebuttable presumption. The standard of proof for rebutting the said presumption is that of preponderance of probability. 9. The petitioner –accused has not sent any reply to the notice putting forth his defence. The defence of the petitioner –accused has been put in the cross examination of P.W.1. The defence taken up by the petitioner – accused is that the complainant has taken bar and restaurant of the petitioner –accused on lease and license - 9 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 was in the name of petitioner –accused. The complainant used to purchase liquor in the name of the petitioner – accused and for that the petitioner –accused used to issue blank signed cheque to the complainant and that has been misused by the respondent –complainant. The said defence has been put in the cross examination of P.W.1 and he has denied the same. The accused has not entered into witness box to establish the said defence. The accused has failed to prove his defence and therefore, the presumption drawn under Section 139 of the N.I Act remains unrebutted. Consequences of non rebutting the said resumption has been considered by the Hon’ble Apex Court in the case of Rajesh Jain Vs. Ajay Singh2 has held as under; “55. As rightly contended by the appellant, there is a fundamental flaw in the way both the Courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the 2 reported in AIR Online 2023 SC 807 - 10 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.” 10. The petitioner –accused has taken his contention that notice –Ex.P3 has not been served on him. Service of statutory notice is mandatory to establish the offence punishable under Section 138 of the N.I Act. If - 11 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 the service of demand notice is not established as required under Clause (b) of Section 138 of the N.I Act, then the offence punishable under Section 138 of the N.I Act is not attracted. The said aspect is considered by the Co- ordinate Bench of this Court in the case of Yelahanka Merchant Finance (supra) which has been relied upon by learned counsel for the petitioner. 11. The statutory notice has been sent to two addresses of the petitioner –accused and said notice is at Ex.P3. Ex.P4 and P5 are postal receipts for having sent legal notice by RPAD to said two addresses of the petitioner -accused. As the respondent –complainant had not received back postal acknowledgements, the complaint has been made to the postal authority and office copy of the same is at Ex.P6. The postal authority for the said complaint has given reply which is at Ex.P7. In the said reply, the postal authority has stated that registered letters with acknowledgment with transaction - 12 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 No.RK085584526IN has been delivered to the addressee on 15.12.2012. The said postal article has been issued to second address mentioned in Ex.P3 –notice and postal receipt of same is at Ex.P5. The said address is Jagadish C/o Siddaramaiaha (Opp Leader of Congress), North Park Road, Kumara Krupa, Bengaluru. As per Ex.P7 –postal endorsement, the notice sent to the petitioner –accused to the said address has been served on him. The petitioner contended that Ex.P7 is created document. To establish the said contention, the petitioner –accused neither examined himself nor examined any postal authority. The article sent by registered post will be served on the addressee or to authorized person of the addressee. Learned counsel for the petitioner would contend that second address mentioned in Ex.P3 –notice on which notice stated to have been served is vague address. Considering the address mentioned in Ex.P3 -notice, it cannot be said that the said address is vague address. - 13 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 12. P.W.1 in his cross examination has stated that the said address is address of the relative of the petitioner –accused when it is suggested that address mentioned in the complaint and notice are not address of the petitioner. The said aspect that the said address is that of relative of the petitioner –accused has not been denied in the further cross examination. Therefore, Ex.P3 –notice sent to second address by registered post has been served on him as per Ex.P7. Other notice sent to his first address mentioned in Ex.P3 under postal receipt –Ex.P4 is to the address of bar and restaurant by name of Kamadhenu Bar and restaurant and address is Srinivagilu, Vivekanagar Post, Ejipura, Bengaluru -47. The address mentioned in the complaint –Ex.P8 is also Srinivagilu, Vivekanagar Post, Ejipura, Bengaluru -47. P.W.1 has stated in the cross examination that the accused is residing in the address mentioned in the complaint. In the cross examination, P.W.1 has stated that accused is running two bar and restaurants. The said aspect is also not denied. It appears - 14 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 that said two bar and restaurants run by the petitioner – accused are ‘Bhoja Garden Restaurant’ and ‘Kamadhenu Bar and Restaurant’. The said two bar and restaurants situated in Srinivagilu, Vivekanagar Post, Ejipura, Bengaluru -47. The notice –Ex.P3 sent to the first address has not been returned. Therefore, the presumption arises that the said notice has been served on the address i.e., petitioner –accused. The Hon’ble Apex Court in the case of C.C. Alavi Haji Vs Palapetty Muhammad & Anr3 has held as under; “13. According to Section 114 of the (Evidence) Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume 3 Reported in (2007) 6 SCC 555 - 15 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below: Meaning of service by post - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless - 16 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 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 post. 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.” - 17 - HC-KAR NC: 2025:KHC:25189 CRL.RP No. 1431 of 2015 Considering the above aspects, contention of learned counsel for the petitioner –accused that notice has not been served on the petitioner –accused cannot be accepted. 13. Considering all these aspects, the learned Magistrate has rightly convicted the petitioner –accused for offence punishable under Section 138 of the N.I Act and the Appellate Court has rightly re-appreciated the evidence on record and rightly dismissed the appeal filed by the petitioner –accused by confirming the judgment passed by the trial Court. There are no grounds made out to entertain this Criminal Revision Petition. 14. Hence, this Criminal Revision Petition is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DSP List No.: 1 Sl No.: 27