- 1 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL REVISION PETITION NO. 1454 OF 2019 (397(Cr.PC) / 438(BNSS)) BETWEEN: MR M.MUNISWAMY S/O KEMPAIAH, AGED:44 YEARS, R/O. NO.174 KOTHANUR DINEE, MAIN ROAD SHANKARNAG CIRCLE, J P NAGAR 8TH PHASE, BENGALURU-560076. …PETITIONER (BY SRI PRASANNA KUMAR P., ADVOCATE) AND: 1. MR K. GANGADHARARAJU S/O LATE K. VENKATARAJU, AGED:55 YEARS, R/O. NO.14 FLATE NO.501, SHANDA MANSION, 5TH MAIN ROAD, NAVODAYANAGAR, J. P. NAGAR 7TH PHASE, BENGALURU-560 076. REPRESENTED BY HIS LR’S 1A SMT. Y.N. AMARAVATHY, W/O GANGADHAR RAJU, R/AT NO. 14, SKANDA MANSION, FLAT NO.501, 5TH MAIN, 4TH CROSS, NAVODAYANAGAR, J.P. NAGAR, 7TH PHASE, BENGALURU-5600078. Digitally signed by NARAYANA UMA Location: High Court of Karnataka - 2 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 1B) KUMARI HARSHINI D/O GANGADHAR RAJU R/AT NO.14, SKANDA MANSION, FLAT NO.501, 5TH MAIN, 4TH CROSS NAVADAYANAGARA, J.P. NAGAR, 7TH PHASE, BENGALURU – 78. AMENDED AS PER HON’BLE COURT ORDER DATED 6-11-2024 …RESPONDENTS (BY SRI. H. S. VIVEKANANDA, ADVOCATE FOR LR’S) THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE DATED 23.05.2017 IN C.C.NO.3363/2014 ON THE FILE OF THE XVI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, AT BENGALURU AND THE JUDGMENT DATED 17.09.2019, IN CRL.A.NO.880/2017, ON THE FILE OF THE 56TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH-57). THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 24.02.2025 COMING ON FOR PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR JUSTICE S RACHAIAH - 3 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 CAV ODER 1. This Criminal Revision Petition is filed by the petitioner/accused, being aggrieved by the judgment of conviction and order on sentence dated 23.05.2017 in C.C.No.3363/2014 on the file of the XVI Addl. Chief Metropolitan Magistrate, Bengaluru and its confirmation judgment and order dated 17.09.2019 in Crl.A.No.880/2017 on the file of LVI Additional City Civil & Sessions Judge, Bengaluru, seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner / accused is convicted for the offence punishable under Section 138 of N.I.Act. 2. The ranks of the parties would be considered henceforth as per their rankings in the Trial Court for convenience. Factual matrix of the case: 3. It is the case of the complainant that, both the complainant and the accused are known to each other since 2005. Both were having made several business transactions in the real estate. In the month of October, - 4 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 2012, the accused approached the complainant for real estate transaction and requested for financial assistance for the purpose of purchasing of immovable property of Rs.1,25,00,000/-. Accordingly, the same was paid to the accused in the month of January, 2013 by way of cash. The accused has agreed to repay the same with interest within two months. However, it was not paid as agreed upon. In the meantime, the cheque was issued for the said amount. When the said cheque was presented for encashment, the accused requested the complainant that he would make payment shortly, after having obtained money which he expected from other source. Again the complainant presented the said cheque for encashment. However, it came to be dishonoured as “Funds Insufficient”. The notice was issued to the accused on 17.06.2013, however, the same has been returned as ‘refused’. Thereafter, a private complaint came to be registered against the petitioner before the Magistrate. 4. In order to prove the case, the complainant examined himself as P.W.1 and got marked 7 documents as Exs.P.1 to P7. On the contrary, the accused himself examined as - 5 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 D.W.1 and got examined one more witness as D.W.2 and got marked 3 documents as Ex.D.1 to D3. The Trial Court and the Appellate Court concurrently held that the petitioner is guilty of the offence under the above said provisions and rendered the conviction. Hence, this revision petition. 5. Heard Sri. Prasanna Kumar P, learned counsel for the petitioner and Sri. H.S.Vivekananda, learned counsel for the respondent. 6. It is the contention of learned counsel for the petitioner that the findings of the Courts below in recording the conviction are not proper and correct. The said findings are not only against to the law, but also against to the evidence on record. Hence, he prays to set aside the findings of the Courts below. 7. It is further submitted that he has not received any legal notice in respect of dishonour of cheque. In fact, he submitted that he has not done any monetary transactions with the complainant. The said cheque which was marked as Ex.P.1 was issued to one Siddaraju on - 6 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 10.03.2012 as a Security for having obtained loan of Rs.2,00,000/-. Despite having cleared the loan, the said Siddaraju has not returned the cheque on one or the other pretext. 8. It is further submitted that the said Siddaraju stated that he had lost the cheques along with the documents while traveling, in that context, he lodged a complaint before the police for having lost the said cheques and bond. The acknowledgment given by the police has been marked as Ex.D2. D.W.1 lodges private complaint in against the complainant herein in PCR No.12543/2015 for having misused the cheque. The said complaint has been marked as Ex.D3. 9. It is further submitted that, even though, the accused has examined himself as D.W.1 and got examined another witness as D.W.2 and produce several documents to rebut the presumption and the Trial Court has not assessed the evidence both oral and documentary and opined the accused found guilty of the offences. Therefore, the interference with the said findings are - 7 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 necessary and proper. Making the said submissions, prays to allow the petition. 10. Per contra, the respondent justified the concurrent findings and he further submitted that the accused has not disputed the cheque and signature. Even though, he disputed the transaction, the facts remain that once the signature and the cheque are admitted, it is presumed that the accused had issued a cheque to clear the debt or liability. Of course, the said presumption is rebuttable in nature and the accused has to rebut the presumption by leading cogent evidence. It is also relevant that mere denial of the transaction is not sufficient to rebut the presumption. Having said thus, the learned counsel for the respondent prays to dismiss the petition. 11. 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 have the cursory look upon the evidence of the accused. - 8 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 12. Before adverting to the evidence of the accused, it is appropriate to state the proposition of law on the Negotiable Instrument Act. 13. In this context, it is relevant to refer the judgment of Hon'ble Supreme Court in the case of Bir Singh vs. Mukesh Kumar1 and Rajesh Jain Vs. Ajay Singh2. The Hon'ble Supreme Court held in paragraph Nos.19 to 24 in Bir Singh Judgment as stated supra reads thus: “ 19. In Hiten P. Dalal v. Bratindranath Banerjee, this Court held that both Sections 138 and 139 require that the court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in State of Madras v. A. Vaidyanatha Iyer, this Court held that it was obligatory on the court to raise this presumption. 20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of 1 (2019) 4 SCC 197 2 (2023) 10 SCC 148 - 9 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal. 21. Presumption of innocence is undoubtedly a human right as contended on behalf of the respondent-accused, relying on the judgments of this Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Rajesh Ranjan Yadav v. CBI. However the guilt may be established by recourse to presumptions in law and presumptions in facts, as observed above. 22. In Laxmi Dyechem v. State of Gujarat, this Court reiterated that in view of Section 139, it has to be presumed that a cheque was issued in discharge of a debt or other liability but the presumption could be rebutted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption. This Court held “however, this presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post- - 10 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act”. 23. In Kumar Exports v. Sharma, this Court reiterated that there is a presumption that every negotiable instrument duly executed, is for discharge of a debt or liability, but the presumption is rebuttable by proving the contrary. In the facts and circumstances of the case it was found that the cheque in question was towards advance for purchase of carpets, which were in fact not sold by the payee of the cheque to the drawer, as proved from the deposition of an official of the Sales Tax Department, who stated that the payee had admitted that he had not sold the carpets. 24. In K.N. Beena v. Muniyappan, this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that - 11 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability.” 14. In another case, the Court’ble Supreme Court in the case of Basalingappa v. Mudibasappa3 held as under: 25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 3 (2019) 5 SCC 418 - 12 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence. 15. On overall reading of the dicta of the Hon'ble Supreme Court as stated supra, it emerges that the initial burden lies on the accused to prove that the cheque had been issued to discharge of a debt or liability. 16. In the present case, D.W.1 who is arrayed as accused stated in his evidence that he had issued a cheque to D.W.2 for having obtained amount of Rs.2,00,000/- as security. He further stated that though he cleared the - 13 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 loan, the said Siddaraju had not returned the cheques and a bond paper. He denied the transaction with the complainant. 17. D.W.2 who is said to be the friend of D.W.1 has stated that he lost five cheques and a bond paper. Therefore, he lodged a complaint and obtained endorsement by the police which is marked as Exs.D.1 and D2 respectively. 18. Ex.D.1-complaint would indicate that D.W.2 lodges a complaint on 13.12.2012. In the said complaint he has mentioned five cheque numbers and also stated that he lost bond paper. Though the number of the present cheque bearing No. 425907, finds placed the complainant, the said cheque said to be issued on 21.03.2013. D.W.1 did not state in his evidence that he had issued five cheques and a bond paper to D.W.1. When there is inconsistency in the evidence of D.W.1 and D.W.2 in respect of the cheques, it is appropriate to disbelieve the evidence of both D.Ws.1 and 2. 19. On over all analysis of evidence of D.W.1 and 2, I am of the considered opinion that nothing is there in the - 14 - NC: 2025:KHC:17434 CRL.RP No. 1454 of 2019 evidence of D.W.1 and D.W.2 to rebut the presumption. Hence, I am of the considered opinion that the findings of the Courts below in recording the evidence appears to be proper and appropriate. Hence, I decline to interfere with the said findings. 20. 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.: 7