- 1 - NC: 2025:KHC:12633 CRL.RP No. 96 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL REVISION PETITION NO. 96 OF 2020 BETWEEN: V.MOHAN S/O VENKATAPPA, AGED ABOUT 50 YEARS, PROPRIETOR : ORANGE MENTORS, ORANGE COMPUTERS, 1ST CROSS, TILAK NAGAR, NEAR CANARA BANK, SHIVAMOGGA-577201 …PETITIONER (BY SRI. MANJUNATH N D.,ADVOCATE) AND: DEVARAJ G. PATEL S/O LATE GURUMURTHY, AGED ABOUT 45 YEARS, R/A HOUSE NO.201, PWD QUARTERS, BASAVANAGUDI, SHIVAMOGGA-577201 …RESPONDENT (BY SMT. SHRUTHI S. P., ADVOCATE) THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.PC PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 13.11.2018 PASSED BY THE IV ADDITIONAL CIVIL JUDGE AND J.M.F.C., SHIVAMOGGA IN C.C.NO.262/2014 AND ORDER OF DISMISSAL DATED 21.10.2019 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA IN CRL.A.NO.122/2018. THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 27.02.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING: Digitally signed by RENUKA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12633 CRL.RP No. 96 of 2020 CORAM: HON'BLE MR JUSTICE S RACHAIAH CAV ORDER 1. This Criminal Revision Petition is filed by the petitioner, being aggrieved by the judgment of conviction and order on sentence dated 13.11.2018 in C.C.No.262/2014 on the file of IV Additional Civil Judge and JMFC, Shivamogga and its confirmation judgment and order dated 21.10.2019 passed in Crl.A.No.122/2018 on the file of Principal Sessions Judge, Shivamogga 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 short ‘N.I.Act’). 2. The ranks of the parties henceforth will be considered as per their rankings before the Trial Court for convenience. Brief facts of the case: 3. It is the case of the complainant that the complainant and the accused were known to each other since several years. The complainant was running a computer - 3 - NC: 2025:KHC:12633 CRL.RP No. 96 of 2020 education institute, namely, ‘Orange Computers’. The accused stated to have approached the complainant and borrowed a sum of Rs.2,00,000/- for the purpose of his business. He further agreed to repay the said amount within six months. The accused did not return the said amount as agreed upon. Therefore, the complainant approached the accused and requested him to pay the amount. Then, the accused in order to clear the liability, issued four cheques for a sum of Rs.50,000/- each. When those cheques were presented for encashment, the cheques were dishonoured with an endorsement as ‘funds insufficient’. The complainant issued a statutory notice, however, the accused stated to have managed to avoid the service of notice. Hence, the complainant filed a complaint before the jurisdictional Magistrate. 4. To prove the case of the complainant, the complainant examined himself as PW.1 and got marked 11 documents as Exs.P1 to P11. On the contrary, accused got examined himself as DW.1. However, no documents were marked through him. - 4 - NC: 2025:KHC:12633 CRL.RP No. 96 of 2020 5. Heard Sri.Manjunath N.D, learned counsel for the petitioner and Smt.Shruthi S.P, learned counsel for the respondent. 6. It is the submission of the learned counsel for the petitioner that both the Courts have committed an error in arriving at a conclusion that the accused is liable to pay the amount for the reason that the complainant has not proved that he had sufficient amount to advance the same to the accused. Moreover, there is a difference in the writings found on the body of the cheques and signatures. These two aspects should have been considered by the Courts below. Having failed to consider the same, the impugned judgments are passed, which are required to be set aside. Making such submissions, he prays to allow the petition. 7. Per contra, the learned counsel for the respondent justified the concurrent findings and further he submitted that, initially, the burden lies on the accused to rebut the presumption. Once the issuance of the cheques and signatures are admitted, the Court has to raise the presumption which is envisaged under Section 139 of N.I - 5 - NC: 2025:KHC:12633 CRL.RP No. 96 of 2020 Act. Accordingly, the Courts below have rightly arrived at a conclusion that the accused has not rebutted the presumption and passed the appropriate order. Therefore, interference with the findings of the Courts below may not be necessary. Making such submissions, he prays to dismiss the petition. 8. Having heard the learned counsel for the respective parties and also perused the findings of the Courts below, it is appropriate to refer the judgment of the Hon'ble Supreme Court in the case of BASALINGAPPA v. MUDIBASAPPA1 wherein the Hon'ble Supreme Court held in paragraph No.25, which reads 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. 1 (2019) 5 SCC 418 - 6 - NC: 2025:KHC:12633 CRL.RP No. 96 of 2020 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. 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”. 9. On reading of the above said dictum of the Hon'ble Supreme Court, it makes it clear that initial burden lies on - 7 - NC: 2025:KHC:12633 CRL.RP No. 96 of 2020 the accused to rebut the presumption. Hence, now it is necessary to refer the evidence of the accused. 10. The accused admitted in his evidence that the complainant was the student of his institution wherein the complainant used to go to the computer class. The owner of the said building where the accused was running the computer centre had raised the rent and asked him to pay the additional rent. As the accused was not able to pay the rent, the owner partitioned the said office into two parts and handed over half of the portion of the shop to the complainant, wherein the complainant was running mobile shop. Gradually, the accused was not able to run the institution properly and stated to have handed over his half portion of the shop also to the complainant. 11. It is further stated that the complainant was looking after both the shops. The accused admitted that there was a monetary transaction between himself and the complainant. He further stated as the complainant was Government employee and the complainant was transferred to another district on promotion, he stated to - 8 - NC: 2025:KHC:12633 CRL.RP No. 96 of 2020 have settled the entire account by the intervention of owner of the property, namely, Sri.Nataraj. 12. The accused further deposed that the complainant had stolen his cheques which were kept in the reception room and he came to know about the theft of those cheques when he received the summons from the Court regarding cheque bounce case. The accused had taken two inconsistent defences in respect of these cheques. In one of his defences, he deposed that the cheques were stolen by the complainant and presented for encashment. In another set of defence, he admitted that there was a financial transaction between himself and the complainant and the same has been settled between themselves in front of Sri.Nataraj, who is the owner of the building. 13. The accused has neither lodged a complaint regarding the theft of cheques nor examined the said Sri.Nataraj to substantiate the settlement stated to have settled between himself and the complainant. It is needless to say that mere denial of the transaction is not sufficient to rebut the presumption. Therefore, the findings of the Courts below in recording the conviction, in my - 9 - NC: 2025:KHC:12633 CRL.RP No. 96 of 2020 considered view, are appropriate and proper. Interference with the said findings may not be necessary. Hence, I declined to interfere with the said findings. 14. In the light of the observation made above, I proceed to pass the following: ORDER The Criminal Revision Petition stands dismissed. Sd/- (S RACHAIAH) JUDGE UN List No.: 19 Sl No.: 8