1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL REVISION PETITION NO.1515/2019 BETWEEN: 1 . SRI. SHIVANNA S/O SRI EREGOWDA AGED ABOUT 53 YEARS R/AT NO.52, SUNDREGOWDA LAYOUT RAJARAJESHWARINAGAR POST CHANNASANDRA BENGALURU-560 078. … PETITIONER (BY SRI A.N.RADHA KRISHNA, ADVOCATE) AND: 1 . SRI B.S.ASHOK KUMAR S/O LATE N.S. SUBBARAYA SETTY AGEDA BOUT 71 YEARS R/AT NO.678, “KUSUM DHAM” 15TH MAIN, 38TH CROSS IV ‘T’ BLOCK, JAYANAGAR BANGALORE-560 041. … RESPONDENT (BY SRI K.R.ASHOK KUMAR, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE LEARNED XVI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU IN C.C.NO.35498/2014 DATED 02.04.2019, CONVICTING THE 2 PETITIONER AND CONFIRMED ORDER DATED 23.09.2019 IN CRL.A.NO.1009/2019 ON THE FILE OF THE LEARNED LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-67) FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT. THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 15.01.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER 1. Heard the learned counsel for revision petitioner and also the learned counsel for respondent. 2. This revision petition is filed challenging the conviction and sentence and confirmation order passed by the Trial Court in C.C.No.35498/2014 and Crl.A.No.1009/2019 questioning its validity of the order. 3. The factual matrix of case of the complainant before the Trial Court that the accused has borrowed an amount of Rs.10,00,000/- from the complainant by way of cash for sum of Rs.5,00,000/- and by way of Cheque dated 23.07.2012 for sum of Rs.5,00,000/- and executed on 3 demand promissory note and the consideration receipt dated 20.07.2012 in favour of the complainant agreeing to repay the same with interest at 2% p.m for his real estate business and also to discharge certain debts. It is the case of the complainant that when the Cheque dated 21.11.2013 for an amount of Rs.10,00,000/- issued to repay the amount and the same was presented, the said Cheque was dishonored and hence issued the legal notice to the accused. Inspite of service of notice, the accused neither replied nor complied with the demand and hence he filed the complaint. 4. The Trial Court having considered the material on record taken cognizance and proceeded to record the evidence of the complaint. The complainant himself examined as PW1 and got marked Ex.P1 to Ex.P16(a) and also examined one witness as PW2. The accused got examined himself as DW1 and got marked Ex.D1 to Ex.D3. The Trial Court having considered the material on record 4 and having admitted the Cheque, on demand promissory note and consideration receipt and also evidence of PW1 i.e., both oral and documentary evidence placed on record as well as evidence of DW1 and documentary evidence at Ex.D1 to Ex.D3 and analyzed the material and drawn the presumption and comes to the conclusion that there is no any rebuttal evidence proving the fact of preponderance probability of the defense which the accused has taken and accepted the case of the complainant and convicted the accused for the offence punishable under Section 138 of N.I Act and sentenced to pay fine of Rs.14,72,500/- and out of that Rs.10,000/- to the State and in default of payment, the accused shall undergo simple imprisonment for 1 year. 5. Being aggrieved by the judgment of conviction and sentence, an appeal is filed in Crl.A.No.1009/2019 and judgment of the Trial Court and also the sentence awarded by the Trial Court was also confirmed in coming to the conclusion that the Trial Court has not committed any error 5 in considering the material on record and affirmed the finding of the Trial Court and sentence and dismissed the appeal. Being aggrieved by the said judgment of conviction and sentence and confirmation, the present revision petition is filed before this Court. 6. The learned counsel for revision petitioner in his argument would vehemently contend that in the complaint, the complainant not stated the purpose for which the accused has availed the loan for an amount of Rs.10,00,000/- except stating to repay the same with interest at 2% p.m and only improvement is made in the evidence that the same was borrowed for the purpose of business commitment. The counsel would contend that for having paid the income tax, no document is placed before the Trial Court. The counsel also would vehemently contend that Ex.P1 and Ex.P4 are in the handwriting of PW2 and the revision petitioner was having an agreement of sale and 6 subsequently sale deed was executed in favour of daughter of the complainant. 7. The counsel would vehemently contend that the Cheque which was issued is towards the commission for transaction is concerned and consideration receipt dated 20.07.2012. The counsel would vehemently contend that affidavit averment and complaint averments are different. The counsel also would vehemently contend that date of transaction is also contrary to the document and Cheque was honored on 23.07.2012 and Cheque is subsequent dated and not as on the date of 20.07.2012. The answer elicited from the mouth of the PW1 and PW2 creates the doubt with regard to the transaction is concerned and the same has not been considered by the Trial Court as well as First Appellate Court and committed an error in drawing of presumption only on the ground that the Cheque and promissory note and consideration receipts are admitted and fails to take note of the rebuttal evidence. The accused 7 by examining himself lead the evidence and proved that it was not any liability and amount of Rs.5,00,000/- was paid towards commission as contended by the revision petitioner. 8. The counsel in support of his argument, relied upon the judgment reported in (2024) 8 Supreme Court Cases 573 in case of Dattatraya V/s Sharanappa wherein the counsel brought to notice of this Court that a discussion was made that there found no financial capacity or acknowledgment in his income tax returns by the appellant to the effect of having advanced the loan to their respondent. Even, appellant also fail to show timing and date of advanced loan in favour of the respondent and also did not explain as to how a Cheque issued by the respondent allegedly in favour of one M landed in the hands of instant holder, that is, the appellant. The Apex Court also considered the factual aspects mere fact that appellant established that the signature on the Cheque in question 8 was of the respondent, held, not material to raise statutory presumption in favour of the appellant and even the appellant did not plead a valid existence of a legally recoverable debt and respondent inscribed his signature on the agreement drawn on a white paper and not on a stamp paper as presented by the appellant. The Apex Court having taken note of the said fact comes to the conclusion that created doubt in the case of the appellant and in the case on hand having considered the material available on record, it creates the doubt and hence, the judgment is aptly applicable to the case on hand. 9. Per Contra, the counsel appearing for the respondent would contend that date of loan is 23.07.2012. The fact that the Cheque was given was encashed on that date and transaction was taken place on 20.07.2012 and promissory note and consideration receipt was executed on 20.07.2012 in respect of loan transaction. The counsel also would vehemently contend that even though consideration 9 receipt and promissory note was executed a Cheque was issued on demand dated 21.11.2013 and the same was presented and dishonored and hence, notice was given. The notice was served, but no reply was given and even not complied with the demand made in the notice. The counsel also would vehemently contend that though he was subjected to 313 statement, but not availed the defense in order to prove the defense for an amount of Rs.5,00,000/- was paid towards the commission, the same is propounded first time only during the course of cross-examination and no explanation in Ex.D1 to Ex.D3 that an amount of Rs.5,00,000/- was paid towards the commission. 10. The counsel also would vehemently contend that no dispute that earlier there was an agreement between the vendor and the accused and the same was cancelled in terms of Ex.D2 and there was no any reference in the said document also regarding transaction is concerned. The counsel also would vehemently contend that when the loan 10 transaction was taken place in the month of July, cancellation and execution of sale deed in favour of the daughter of the complainant only on 22.08.2012, the PW2 is an eye witness and also he has deposed before the Court that he had seen the accused and documents of Cheque and Ex.P14 are in his hand writing since he wrote the same when the transaction was taken place. 11. It is also important to note that Cheque was encashed on 23.07.2012 and promissory note was also executed on 20.07.2012 in consideration of receipt of Rs.5,00,000/- as cash and Rs.5,00,000/- through Cheque. In the 313 statement nothing is stated regarding the said payment is towards the commission. The Trial Court rightly taken note of presumption under Section 118 and Section 139 of N.I Act. The counsel would vehemently contend that no preponderance of probability and Ex.D1 to Ex.D3 will not help and no witnesses are examined to support the defense. The counsel also would vehemently contend that 11 the owner of the land i.e., Kumuda who is a party to the sale agreement of Ex.D3 and to prove the cancellation and sale deed, not been examined any witness before the Trial Court in order to prove the factum that it was only a payment towards the commission. No reply was given and the same is fatal to the case of the petitioner and there is no any rebuttal evidence and also there is no any preponderance of probability. 12. The counsel in support of his argument, he relied upon the judgment of Apex Court in the case of Bir Singh V/s Mukesh Kumar in Crl.A.No.230/2019 and brought to notice of this Court paragraph No.37 wherein the Apex Court held that a meaningful reading of the provision of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a Cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the Cheque had been issued for payment of a debt or 12 in discharge of a liability. It is immaterial that the Cheque may have been filled in by any person other than the drawer, if the Cheque is duly signed by the drawer. If the Cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 13. The counsel also relied upon the judgment of the Apex Court in case of Rajesh Jain V/s Ajay Singh in case of reported in AIR 2023 SUPREME COURT 5018 and brought to notice of this Court the principles laid down in the that accused neither replied demand notice nor presented any rebuttal evidence instead, accused claims that blank Cheque had been misused by complainant. The accused however fail to provide any substantial evidence or file a Police complaint regarding alleged missing Cheque. In contrast, case of complainant remained consistent and signature of accused and Cheque was unchallenged, allowing presumption as to legally enforceable debt to take effect, High Courts erroneously questioned complainant’s 13 lack of evidence to support loan claim instead of focusing on whether accused had successfully discharged his burden to show absence of any debt at time of issuing Cheque. The Apex Court set-aside the acquittal order and reversed the same. 14. The counsel referring these two judgments would vehemently contend that issuance of Cheque is not disputed and issuance of promissory note and consideration receipt are also not in dispute and though examined himself as DW1 not placed any material for misuse the Cheque and also no rebuttal evidence is placed on record. The counsel also brought to notice of this Court 313 statement of the accused wherein also though he has taken the defense, nothing is stated regarding his defense and hence question of interference does not arise. 15. Having heard the learned counsel for revision petitioner and also the learned counsel for the respondent and also the judgments referred supra by the counsel for 14 revision petitioner and also the counsel appearing for respondent, the point that would arise for consideration of this Court are: 1) Whether both the Courts have committed an error in considering the material and whether it requires interference of this Court that is revisional jurisdiction? 2) What Order? 16. Having heard the learned counsel for revision petitioner and also the learned counsel for the respondent and this Court has to take note of the averments made in the complainant filed under Section 200 invoking Section 138 of N.I Act and in paragraph No.3 of the complaint, specifically pleaded that accused borrowed a sum of Rs.10,00,000/- i.e., Rs.5,00,000/- cash and Rs.5,00,000/- by way of Cheque drawn on HDFC bank, Jayanagara and accused also executed on demand promissory note and consideration receipt dated 20.07.2012 agreeing to pay 15 interest at 2% p.m and the same is for the purpose of real estate business and also to discharge certain debts. Having considered the said pleading in paragraph No.3, the very contention of the petitioner that amount borrowed for which purpose is not stated cannot be accepted and specifically pleaded in the complaint regarding presentation of Cheque, dishonor and issuance of notice in paragraph Nos.4 and 5 and cause of action also pleaded in paragraph No.7. Admittedly, the notice was issued and the same was served on the accused and no reply was given. 17. It is also important to note that the main contention of the revision petitioner that Ex.D1 to Ex.D3 has not been considered. No doubt Ex.D1 is sale deed executed by one Smt.Kumuda who is the vendor of the property, executed the sale deed on 22.08.2012 in favour of daughter of complainant i.e., Miss.A.Keerthana. It is also important to note that Ex.D2 the cancellation of sale agreement when there was an existence between the 16 Smt.S.Kumuda and this petitioner and the same is also dated 22.08.2012, on the same day earlier agreement was cancelled and sale deed was executed in favour of daughter of complainant and Ex.D3 is also executed by Kumuda in favour of Shivanna i.e., sale agreement dated 20.06.2012. It is important to note that there was an agreement between Kumuda and petitioner on 20.06.2012 and it has to be noted that the loan transaction taken place in between and having perused the document of Ex.P14, it is clear that the revision petitioner had executed a document of promissory note and the same is dated 20.07.2012. On perusal of the document, the very averment in the document is very clear that an amount of Rs.5,00,000/- was paid and another sum of Rs.5,00,000/- was paid through Cheque and the same is not disputed and also executed a consideration receipt to that effect. It is also important to note that Cheque was also given and no dispute that the Cheque was given at the time of 17 transaction was encashed on 23.07.2012 within 3 days of execution of document Ex.P14. 18. It is also important to note that the complainant also examined as PW2 who is none other than the author of document of Ex.P14. He also categorically says that he only wrote Ex.P14 and he identified the signature Ex.P14(e) and P14(f) i.e., signature in the promissory note and consideration receipt and transaction was taken place in the house of the complainant in his presence. It is also suggested in the cross-examination that the contents are in his hand writing and the same is also admitted by him and petitioner also not disputed the same. It is also important to note that it is not in dispute that Ex.P1 was issued by the revision petitioner and also the document of Ex.P14 promissory note and consideration receipt are also signed by him and also the fact that he received an amount of Rs.5,00,000/- in terms of the Cheque on 23.07.2012 is not in dispute, when such admission available on record, then 18 presumption could be drawn under Section 139 of N.I Act and the judgment of the Bir Singh and judgment of Rajesh Jain aptly applicable to the case on hand. It is the case of the petitioner that Cheque was misused but no complaint was given and also when the notice was issued and the same was served and he did not give any reply. The same is a fatal to the case of revision petitioner and he ought to have given the reply immediately after issuance of notice and service of notice and there is no any plausible explanation on the part of the petitioner and the same has been considered by the Trial Court that no reply was given and no plausible defense is raised. Apart from that except taking the defense that amount of Rs.5,00,000/- was paid towards commission nothing is placed on record and no witnesses have been examined and also even the earlier vendor of the revision petitioner and also the vendor of complainant’s daughter Smt.Kumuda has been examined before the Trial Court that for having sold the property in 19 favour of daughter of the complainant there was a talks between them to pay the commission and no such evidence is placed on record and there is no any preponderance of probability with regard to the defense taken by the petitioner during the course of the evidence, except taking the defense that the said amount was paid and no explanation for what made the revision petitioner to execute the promissory note on 27.07.2012 to the tune of Rs.10,00,000/-. 19. It is also important to note that the said Cheque which was mentioned in the promissory note also encashed on 23.07.2012 within 3 days. Apart from that as on the date of loan transaction, there was no any completed transaction of the sale in favour of the daughter of the complainant and also vendor Smt.Kumuda and question of payment of commission one month earlier to the sale also cannot be accepted, since the loan transaction dated 20.07.2012 and sale deed and cancellation of sale 20 agreement dated 22.08.2012 and as on the date of loan transaction 20.07.2012 there was no any cancellation of sale agreement and also there was no any execution of sale deed and hence theory of commission was given by way of Cheque that too one month prior to the sale transaction cannot be accepted and the same is also not a plausible evidence and no reply and if they have given the reply immediately when the notice was served and set up the defense, ought to have been considered and there was a force in the contention of the petitioner. 20. It is also important to note that though defense was taken by the counsel that amount was paid towards the commission and accused in his 313 statement not stated anything and also that he has received the Cheque of Rs.5,00,000/- towards the commission and having taken note of the said fact into consideration and no doubt the counsel appearing for the revision petitioner relied upon the judgment of the Apex Court Dattatraya case, but the same 21 is not fit into the factual aspects of the case and loan transaction specifically mentioned the time and date of transaction and also in the complaint specifically pleaded that amount was given to meet the real estate commitments of the accused and not the case of mere admission on the signature in the Cheque, but here is a case of signature on the Cheque as well as execution of promissory note and consideration receipt and all have been admitted and when such being the case, the Trial Court and First Appellate Court rightly appreciated the material on record that there is a valid existence of legally recoverable debt and drawn the presumption under Section 139 of N.I Act. Hence, I do not find any error committed by the Trial Court in convicting and sentencing the accused for the offence punishable under Section 138 of N.I Act and sentencing to pay the fine amount considering the date of transaction and even to the extent to order for payment of compensation also not exorbitant and hence it does not 22 requires any interference of this Court and scope of review is very limited and when the material is rightly considered by the Trial Court and also the First Appellate Court and when no perversity is found, question of interference under the revisional jurisdiction does not arise. Hence, I answer the point as Negative. 21. In view of the discussions made above, I pass the following: ORDER The Revision Petition is dismissed. Sd/- (H.P. SANDESH) JUDGE RHS