- 1 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 957 OF 2017 BETWEEN: G J PRASAD S/O YESHUPADAM AGED ABOUT 54 YEARS R/AT #154, SECTOR-IV H.M.T. COLONY, JALAHALLI BANGALORE – 560 013. …PETITIONER (BY SRI ADITYA S KUMAR, (NOC) ADVOCATE) AND: LAKHMINARAYANA S/O DURGAPPA AGED ABOUT 40 YEARS R/AT #13 A ABBIGERE MAIN ROAD KAMMAGONDANAHALLI, JALAHALLI WEST POST BANGALORE – 560 015. …RESPONDENT (BY SRI LAKSHMIKANTH K, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT PASSED BY THE LEARNED LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN CRL.A.No.244/2016 DATED 14.08.2017 CONFIRMING JUDGMENT OF CONVICTION PASSED BY THE LEARNED XII ADDITIONAL CHIEF METROPOLITAN Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 MAGISTRATE, BANGALORE IN C.C.No.18257/2012 DATED 22.02.2016 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 1. This revision petition is directed against the judgment dated 14.08.2017 passed in Crl.A. No. 244/2016 by LIX Additional City Civil and Sessions Judge, Bengaluru, whereunder the judgment of conviction dated 22.02.2016 passed in C.C. No. 18257/2012 by XII Additional Chief Metropolitan Magistrate, Bengaluru, convicting the petitioner for offence under Section 138 of Negotiable Instruments Act (hereinafter for the sake of brevity referred to as the `N.I. Act’) has been affirmed. 2. Heard learned counsel for petitioner – accused. Learned counsel for respondent remained absent and has not addressed arguments. 3. Case of the respondent – complainant was that the accused complainant and accused were well acquainted - 3 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 with each other for several years. The petitioner - accused had approached the respondent – complainant during December, 2011 for hand loan of Rs.72,000/- for his domestic necessities. The respondent - complainant had advanced hand loan of Rs.45,000/- by way of cash on 15.01.2022 and Rs.27,000/- by way of cash on 22.01.2012. The petitioner - accused agreed to repay the said amount and issued 2 cheques bearing No. 377581 dated 15.01.2012 for Rs.45,000/- and another cheque bearing No. 377582 dated 22.01.2012 for a sum of Rs.27,000/- and both cheques were drawn on UCO Bank, Jalahalli Branch, Bengaluru. Respondent – complainant presented the cheques on 09.03.2012. Both the cheques came to be dishonoured with an endorsement `funds insufficient’ under Bank memo dated 09.03.2012. Respondent - complainant got issued legal notice on 20.04.2012 calling upon the petitioner - accused to pay the amount of cheques within 15 days. Said notice has been served on the petitioner - accused on 23.04.2012. Inspite of service of legal notice, petitioner - accused has not - 4 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 paid the amount of cheques. Therefore, respondent - complainant initiated proceedings against the petitioner - accused for offence under Section 138 of N.I. Act. Respondent – complainant, in order to prove his case, has examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.9. Statement of the accused has been recorded under Section 313 of Cr.P.C. Petitioner - accused examined himself as D.W.1 and also got examined 2 witnesses as D.W.2 and D.W.3 and got marked Ex.D.1. The trial Court, after hearing arguments on both sides, has convicted the petitioner - accused for offence under Section 138 of N.I. Act and sentenced him to pay fine of Rs.77,000/- and in default, to undergo simple imprisonment for six months. Said judgment of conviction and order on sentence has been challenged by the petitioner - accused before the Sessions Court in Crl.A. No. 244/2016. Said appeal came to be dismissed on merits confirming the judgment of conviction of petitioner - accused for offence under Section 138 of N.I. Act. - 5 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 4. Learned counsel for petitioner would contend that there is material alteration in the date of the cheque – Ex.P.1 and it has not been countersigned by the petitioner - accused. Same has been admitted by D.W.1 in his cross- examination and also by the Bank Managers who are examined as D.W.2 and D.W.3. He further submits that date in the cheque – Ex.P.2 is not proper as the year is mentioned as `20012’ and inspite of the same, cheque has been dishonoured for want of funds in the account of petitioner. Considering these aspects, the trial Court and the appellate Court ought to have acquitted the petitioner - accused for offence under Section 138 of N.I. Act. 5. Learned counsel for respondent - complainant would contend that the petitioner - accused has admitted issuance of cheques. As the issuance of the cheques is admitted, a presumption has been drawn under Section 139 of N.I. Act. Said presumption has not been rebutted. The defence of petitioner - accused that cheques were issued as - 6 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 security for earlier borrowing in the year 2009 has not been established. Considering the same, the trial Court has rightly convicted the petitioner for offence under Section 138 of N.I. Act. The appellate Court re-appreciated the evidence on record and affirmed the conviction passed by the trial Court. 6. Having heard learned counsel for the parties, this Court has perused the impugned judgments and trial Court records. 7. The petitioner - accused has admitted his signatures on the cheques – Ex.P.1 and Ex.P.2. As the petitioner - accused has admitted his signatures on the cheques, presumption has to be drawn that the cheques were issued for discharge of debt under Section 139 of the N.I. Act. Said presumption is a rebuttable presumption. Standard of proof for rebutting the said presumption is preponderance of probability. 8. The petitioner - accused has taken up the defence that he had borrowed Rs.2,00,000/- from the respondent - complainant for his necessity and at that time he had given - 7 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 blank signed undated two cheques to the respondent - complainant and he has repaid the said amount with interest (Rs.2,80,000/-) during January 2010 and the said cheques are not returned by the respondent – complainant. D.W.1 has stated the same in his chief-examination and the same has been denied in his cross-examination. Said defence has not been suggested to P.W.1 in his cross-examination. Considering the said aspect the petitioner - accused has failed to establish his defence and presumption drawn under Section 139 of N.I. Act has remained unrebutted. 9. The contention that Ex.P.1 – cheque is altered has been considered by the appellate Court. The appellate Court held that there is alteration of cheque – Ex.P.1 and therefore, it cannot be enforced in law as there is bar under Section 87 of the N.I. Act. While holding so, the appellate Court has given its reasons in paragraph Nos. 12 to 15 which reads as under: 12. POINT NO.2:- The accused in his evidence and also in the cross-examination of P.W.1 has - 8 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 taken the defence that the cheque at Ex.P.1 is altered in respect of date. In order to prove such alteration the accused has adduced the evidence of banker of Crl.Appeal No.244/2016 10 himself and the bankers of the complainant as D.W.2 and 3. Both witnesses have stated that there appears alteration of date in the cheque produced at Ex.P.1. On careful scrutiny of Ex.P.1/cheque court also finds that there is alteration of year of the cheque. The original date of the cheque is 22.01.2011 and the altered date is 22.01.2012. 13. The validity of the cheque would be six months from the date of drawing. Therefore, if the cheque was drawn on 22.01.2011, it would lapse on or before 21.07.2011. The cheque has been presented in the year 2012. If the original date 22.01.2011 was maintained and it was presented in the bank in the year 2012, the cheque would not have been entertained or accepted by the Bank. Therefore, I hold that there material alteration in the cheque. 14. Section 87 of N.I. Act provides that material alteration of Negotiable Instruments renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made - 9 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 in order to carry out the common intention of the original parties. Therefore, if the complainant is not able to establish that such correction in the cheque is made or altered on consent of the accused, or it was made to carry out the common intention at the time of transaction, the cheque at Ex.P.1 renders void and it cannot be enforced in law. Therefore, the burden is on the complainant to establish that the accused has given consent for the alteration of the cheque. 15. The complainant in his complaint or in his examination-in-chief not stated that there is alteration in the cheque. There is no evidence given by the complainant that the alteration was made by the accused or such alteration has been made on the consent of the accused. The accused has categorically denied his consent for alteration. There is no signature either complainant or the accused for the correction of the year in Ex.P.1. When the maker of the cheques denying the consent for correction of the year in Ex.P.1 and when there is no proper evidence to show that the accused has made such correction or accused alteration has been made in Ex.P.1. Therefore, I hold that because of the alteration of the cheque at Ex.P.1, it cannot be in enforced under law as there is bar under Section 87 of N.I. Act. This aspect of - 10 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 the matter has not been considered by the trial court. Therefore, to that extent the finding of the trial court is not sustainable under law.” 10. Said finding that Ex.P.1 – cheque has been altered given by the appellate Court has not been challenged by the complainant who is the respondent herein. 11. On perusal of Ex.P.2 – cheque it is clear that the date on the same is mentioned as `15/01/20012’. It is the case of the respondent – complainant that Ex.P.2 cheque had been issued by the petitioner - accused on 15.01.2012 and it is drawn for Rs.45,000/-. There is no allegation of alteration in date of cheque – Ex.P.2. What is alleged is, date mentioned in Ex.P.2 is not proper and it ought to have been dishonoured by the banker. Ex.P.4 is the bank memo wherein Ex.P.2 cheque has been dishonoured for the reason `funds insufficient’. Ex.P.2 – cheque has not been dishonoured for the reason that date is not proper. D.W.2 and D.W.3 who are Bank Managers have given evidence regarding the cheques and reason for dishonour of the - 11 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 cheques. There is no suggestion to D.W.2 and D.W.3 that date of Ex.P.2 has been altered. What can be seen on perusal of Ex.P.2 cheque is that while mentioning the year in the date one extra zero has been mentioned, instead of `2012’ it is mentioned as `20012’. Considering the said aspect it cannot be said that there is alteration in the date of cheque – Ex.P.2. 12. Even though the appellate Court has held that Ex.P.1 – cheque cannot be enforced under Section 87 of the N.I. Act as it is altered, has considered the case of respondent - complainant only in respect of Ex.P.2 – cheque and upheld the conviction and maintained the sentence of fine as the sentence to pay fine of Rs.77,000/- is lesser than twice the amount of cheque – Ex.P.2. Considering the same, no error can be found in the judgment of the appellate Court. 13. Considering all these aspects, the petitioner has not made out any grounds to entertain this revision petition - 12 - HC-KAR NC: 2025:KHC:22367 CRL.RP No. 957 of 2017 and acquit the petitioner. In the result, revision petition is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE LRS List No.: 1 Sl No.: 26