- 1 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO.1375 OF 2021 BETWEEN: 1. SRI. MANJUNATHA, S/O R. MANI, AGED ABOUT 40 YEARS, RESIDING AT NO.47, BASAVANADURGA VILLAGE, GANGAVATHI TALUK, KOPPAL DISTRICT – 583 227. …PETITIONER (BY SRI. PRADEEP M., ADVOCATE) AND: 1. SMT. VALARMATHI, W/O SRI. RADHAKRISHNA, AGED ABOUT 39 YEARS, RESIDING AT NO.41, 8TH ‘A’ CROSS, MARUTHI NAGAR, BHADRAPPA LAYOUT, NAGASHETTIHALLI, BENGALURU - 560 094. …RESPONDENT (BY SRI. DEVARAJ K.S., ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION DATED 12.07.2019 PASSED BY THE XVIII ADDL.C.M.M., BENGALURU IN C.C.NO.25056/2015 AND JUDGMENT DATED 05.07.2021 PASSED BY THE LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN CRL.A.NO.1727/2019, BY ACQUITTING THE PETITIONER FOR AN Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT. THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER Heard the learned counsel for the petitioner and the learned counsel for the respondent. 2. This revision petition is filed against the conviction passed in respect of the offence punishable under Section 138 of the Negotiable Instruments Act (‘NI Act’ for short) and directing to pay the amount of Rs.5,60,000/- and ordered to defray an amount of Rs.10,000/- towards the State and also the confirmation order passed by the Appellate Court in Crl.A.No.1727/2019. 3. The factual matrix of the case of the complainant before the Trial Court is that in the month of April 2014, the accused who was facing financial constraints, had borrowed a sum of Rs.4,00,000/- from the complainant as a hand loan to meet his domestic and financial constraints and also to invest on the brick industry at Gangavathi, Koppala District. At the time of availing the hand loan, the accused had assured and - 3 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 promised to the complainant that he would repay the same within six months from availing the loan. After lapse of five months, the accused failed to repay the said amount. When the complainant demanded the accused to repay the amount, he issued a cheque dated 06.08.2015 for an amount of Rs.4,00,000/- and when the said cheque was presented, the same was returned with an endorsement “payment stopped by drawer” on 08.08.2015. Thereafter, the complainant issued legal notice on 02.09.2015 and the notice was served and inspite of it, the accused did not comply the same and hence complaint was filed and the Trial Court took the cognizance and secured the accused and he did not plead guilty and claimed trial. Hence, the complainant examined herself as P.W.1 and examined one witness as P.W.2 and got marked the documents at Exs.P.1 to 16. The accused was subjected to 313 statement and thereafter he examined himself as D.W.1 and examined two other witnesses as D.W.2 and D.W.3 and got marked the documents at Exs.D.1 to 26. The Trial Court having considered both oral and documentary evidence placed on record, comes to the conclusion that notice was issued and the same was served on the accused and no reply was given. Apart from that, taken note of the issuance of cheque and also the documents which - 4 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 have been placed before the Trial Court by the accused and those documents are in respect of earlier transaction between the brother of the accused filed by G.K.Sridhar against Santhoshkumar before the Gangavathi Court and complaint was given by Manjunatha and Chinna i.e., accused brother to Koppal Police Station and comes to the conclusion that document Exs.D.1 to 26 only confers to the Court about several transactions between the accused and other persons and certain documents were also marked. The Court comes to the conclusion that said materials are not sufficient to accept the case of the petitioner and taken note of the presumption that cheque was admitted and also taken note of the evidence of D.W.1 to D.W.3 and did not accept the contention of the accused and convicted and sentenced the petitioner. 4. Being aggrieved by the same, an appeal is filed before the Appellate Court and the Appellate Court on re- appreciation of both oral and documentary evidence placed on record and particularly in paragraph No.14 discussed that the cheque in question belongs to the account of the accused and the same bears his signature and comes to the conclusion that there is no proper explanation offered by the accused as to how the cheque in question came in possession of the complainant. - 5 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 The explanation offered by the accused so far as the cheque in question is concerned, cannot be accepted as probable defence is not set out. The service of notice was also taken note of by the Appellate Court that he was working as Vice President, Sangapura Grama Panchayath and the same was not disputed and hence accepted the reasoning given by the Trial Court both under Sections 118 and 139 of the NI Act regarding rebuttal evidence is concerned and confirmed the order of the Trial Court. 5. Being aggrieved by the concurrent finding, the present revision petition is filed before this Court. 6. The main contention of the learned counsel for the petitioner is that no notice was served on the petitioner. The learned counsel contend that loan transaction was taken place according to the complainant in 2015 and letter was also addressed to the bank immediately and endorsement is also “payment stopped by drawer”. The learned counsel contend that both the Courts failed to consider the said endorsement. The learned counsel contend that there was no any source of income to the complainant to make the payment of Rs.4 lakhs and also categorical defence was taken that the cheque was - 6 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 given as security when the brother of the accused availed the loan. The learned counsel brought to the notice of this Court the documents in ‘D’ series, which have been placed before the Trial Court and particularly brought to the notice of this Court Ex.D.5 complaint given to the Bank Manager and Exs.D.7 to 9 loan agreements and also copy of the complaint and judgment as Exs.D.12 and 13. The complaint was also given to the Commissioner in terms of Ex.P.15 and so also Ex.D.21 complaint was given to the police and Exs.D.24 to 26 are application form, delivery order and terms and conditions of loan transaction. The learned counsel contend that when plausible evidence is placed before the Court and rebutted the evidence of the complainant by producing the documentary evidence, both the Courts committed an error in coming to the conclusion that the cheque was admitted and not rebutted the evidence of the complainant and the very approach is erroneous. 7. Per contra, the learned counsel for the respondent contend that the respondent examined herself as P.W.1 and examined P.W.2 and she categorically speaks about payment of money and with regard to the source of income is concerned, she produced Exs.P.6 to 11 RTC extracts. The learned counsel contend that running of brick industry is admitted and summons - 7 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 was served in respect of correct address only and summons was issued in criminal case against the accused in respect of the very same address and postal acknowledgment is placed before the Court for having served the notice and now cannot contend that there is no service of notice. The learned counsel contend that when the complaint was given for misusing of cheques, ought to have given the complaint to the police and no such complaint was given. Contra defence was taken, in one breath defence was taken that cheques are given as security and as against this defence, it is contended that cheques are lost and hence intimation was given to the bank to stop payment. It is categorically elicited in the cross-examination of D.W.1 that cheque Ex.P.1 is also one of the cheques for giving of complaint for loss of cheques and in one breath he says that cheque was given as security and in another breath he says that cheques were lost and complaint was given and both the Courts taken note of the admission on the part of D.W.1 and documentary evidence and documents of ‘D’ series will not come to the aid of the petitioner. 8. 8. The learned counsel for the respondent also relied upon the order of this Court passed in Crl.R.P.Nos.1021/2021 c/w 1058/2021 and brought to the notice of this Court - 8 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 paragraph No.47, wherein an observation is made that it is crystal clear that when once the notice is issued to the accused to his last known address through RPAD, it should be presumed that notice is duly issued and served under Section 27 of General Clauses Act, as he has no hand in service of the notice or otherwise. 9. In reply to the arguments of the learned counsel for the respondent, the learned counsel for the petitioner would contend that answer is elicited from the mouth of P.W.1 that she did not call the accused when the amount was not repaid and also specific suggestion was made that Ex.P.1 was collected by his brother Sridhar and complaint was lodged and the same was misused. Though not admitted, but specific defence was taken. It is elicited that cheque was given in June 2015, but she does not remember the date of the cheque and not specifically mentioned the date of lending of money of Rs.4 lakhs. Hence, it requires interference of this Court. 10. Having heard the learned counsel for the petitioner and the learned counsel for the respondent and also on perusal of the material on record, the points that arise for the consideration of this Court are: - 9 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 (i) Whether both the Courts have committed an error in accepting the case of the complainant in invoking Section 138 of the NI Act and whether it requires interference of this Court by exercising the revisional jurisdiction and whether the orders suffer from legality and correctness? (ii) What order? Point No.(i): 11. Having heard the learned counsel for the respective parties, the factual matrix of the case of the complainant is that the accused had availed loan of Rs.4 lakhs in order to meet his domestic and financial constraints since he intended to invest money in brick industry and the same was not repaid and hence cheque was issued on demand. Having considered the averments made in the complaint, it is clear that the accused approached the complainant in the month of April 2014 and also stated that he was under financial constraints, but he did not repay the amount as agreed within six months and on demand he gave cheque dated 06.08.2015. When the cheque was presented on 08.08.2015, the same was returned with an endorsement “payment stopped by drawer”. The learned counsel for the respondent would contend that immediately after - 10 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 issuance of cheque, stop payment intimation was given and hence notice was issued and the same was served. The learned counsel for the petitioner submits that no such notice was served. The complainant produced the postal receipt for having served notice in terms of Ex.P.5, but denies the signature and it is not the case of the petitioner that he was residing in different address. On perusal of Ex.P.3 notice, notice was addressed to Sangapura Grama Panchayath, Basavanadurga Post and he was a member of Grama Panchayat for the period from 18.06.2010 to 18.06.2015 and though denied the document of Ex.P.5 postal acknowledgment which was addressed to the very same address, the same was acknowledged but not sent the document for scientific examination denying the signature. It is important to note that no reply was given. The learned counsel for the respondent relied upon the order of this Court passed in Crl.R.P.Nos.1021/2021 c/w 1058/2021 and brought to the notice of this Court paragraph No.47, wherein an observation is made that if the notice is sent to the last known address through RPAD, it should be presumed that notice is duly issued and served under Section 27 of the General Clauses Act. The learned counsel contend that when the notice was issued and served and the same is disputed, but not sent to the scientific - 11 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 expert as well as in the evidence no such question was put to her disputing the very service of notice. 12. The other contention of the petitioner is that there was no any source of income to the complainant to lend the money. The complainant produced the documents of Exs.P.6 to 11 RTC extracts to show that she is having agricultural land and having income. Apart from that, when Ex.P.1 cheque was issued, the same is not disputed and admits the signature and also the cheque, but only contention was taken that cheque was given as security when the accused brother availed the loan and the same was misused. Having received the same is concerned, except giving intimation to the bank to stop payment, the petitioner taken the contention that cheques were misplaced. In the cross-examination of D.W.1 he categorically admits that he gave the complaint stating that 45 cheques bearing Nos.595951 to 595900 were lost and also categorical admission is elicited that in between these series, the document of Ex.P.1 and another cheque also included and also categorically admitted that in Ex.D.21 not stated about those cheques are lost. 13. Having taken note of these answers elicited from the mouth of D.W.1, it is clear that in one breath he says that the - 12 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 cheque was given as security and again says that cheques were lost and complaint was given. But very specific answer was given by the petitioner that among the series of the cheques, which have been lost in terms of the complaint, Ex.P.1 is one of the cheque and contra defence was taken. It is important to note that he categorically admits that tractor KA-37-TA-1519 belongs to his brother and also categorically admits that the tractor was seized by Sriram Finance and specific suggestion was given that Ex.P.1 cheque was given to the complainant and the same was denied. He also admits that Gokularam also filed complaint against him and he categorically admits that he gave several cheques. The very conduct clearly discloses that he was in financial constraint and issued the cheques. He also admitted that he is residing at Basavanadurga and is residing at No.47 and if any letters are sent to the said address, the same will be served, but he denies the sending of notice Ex.P.3. On perusal of Ex.P.3, no doubt the notice is not sent to No.47, but it was sent to the Grama Panchayat. Contra defence was taken, in one breath saying that cheque was given as security and again admits that in terms of the complaint he has lost 45 cheques and among them, Ex.P.1 is one of the cheque. The Court has to take note of the conduct of the petitioner. - 13 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 14. It is the specific case of the complainant that cheque was issued on 06.08.2015 and immediately complaint was given within two days. The letter is given to the Bank intimating to stop payment and endorsement was issued on 08.08.2015 and the conduct is also very important while appreciating the evidence. The Trial Court also taken note of this fact and no doubt, the accused examined other two witnesses and also produced the documents in exhibit ‘D’ series to show with regard to the transaction is concerned and there are many transactions between the family members also. In respect of transaction in the account of Chinna and agreement between Selvaraj and Lakshmi as well as bank pass book also placed before the Court and it clearly discloses that certain money transaction was taken place and C.C.No.623/2011 was also taken place by G.K. Sridhar against one Santhoshkumar before Gangavathi Court. These documents will not come to the aid of the petitioner. The same is also taken note of by the Trial Court in paragraph No.14 and document Ex.P.1 was not disputed and signature was not disputed and when contra defence was taken, the Trial Court rightly comes to the conclusion that presumption is in favour of the complainant and the same is not rebutted. Mere examination of witnesses in the defence evidence and - 14 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 producing of several documents is not plausible evidence as contended by the learned counsel for the petitioner. The plausible evidence must be in respect of issuance of cheque and what made him to issue the cheque and why and for what reason the cheque had gone to the hands of the complainant. This Court has already taken note of the contra defence of the petitioner that in one breath he says that the cheque is given as security and in another breath he says that the very same cheque was lost and complaint was given. Ex.D.5 complaint is given to the Bank Manager and complaint is also given to the Commissioner in terms of Ex.D.15 and complaint was given to the police in terms of Ex.D.21. He categorically admits that in Ex.D.21 not stated anything about loss of cheque. These answers are taken note of by the Appellate Court while re- appreciating the evidence on record. 15. The Appellate Court in paragraph No.14 considered the material on record considering the evidence of the complainant and also the evidence of D.W.1 to D.W.3 since he had examined Chinna and Ramesh as D.W.2 and D.W.3. Having considered the same, the Appellate Court comes to the conclusion that the accused had lodged a false complaint and when the cheque was issued, the same is admitted that the - 15 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 cheque belongs to the account of the accused and bears his signature and no proper explanation is offered by the accused as to how the cheque came in possession of the complainant. The explanation offered by the accused cannot be accepted as there is no probable defence. The Appellate Court also discussed with regard to service of notice in paragraph No.15 and also relied upon the judgment of the Apex Court in the case of RANGAPPA v. SRI MOHAN reported in AIR 2010 SC 1898, wherein also discussed with regard to drawing of presumption under Section 139 of the NI Act. In paragraph No.17, the Appellate Court discussed with regard to the presumption under Sections 118 and 139 of the NI Act. 16. Both the Courts assessed the evidence on record i.e., evidence of P.W.1 and P.W.2 and D.W.1 to D.W.3 and the scope of revision is very limited and this Court can only interfere if perverse finding is given by the Trial Court and the Appellate Court while accepting the evidence of the complainant. In the absence of rebuttal evidence, though the accused examined himself and examined other two witnesses and produced the documents, those documents are not relevant in respect of the transaction between the complainant and the accused and issuance of cheque Ex.P.1 is admitted and not rebutted the - 16 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 same. In the absence of rebuttal evidence and probable defence in respect of issuance of cheque and also contra defence, I do not find any perversity in the findings of both the Courts and this Court can exercise the revisional power only if the order of the Trial Court and the Appellate Court suffers from its legality and correctness. When the material is placed before the Court, particularly Ex.P.1 and though the petitioner took the contention that notice was not served on him, but he had not led any probable evidence that he was not the member of Grama Panchayat, but earlier he was a member of Grama Panchayat as well as Vice President of Grama Panchayat. When such specific defence was not taken and postal acknowledgment is placed for having served the notice in respect of the address mentioned in the notice and this Court also in the judgment referred supra held that when once the notice is issued to the accused at his last known address through RPAD, it should be presumed that notice is duly issued and served under Section 27 of the General Clauses Act and the hence I do not find any merit in the revision petition to come to the other conclusion that order of the Trial Court and the Appellate Court suffers from its legality and correctness and hence no merit in the petition. - 17 - NC: 2025:KHC:8548 CRL.RP No. 1375 of 2021 Point No.(ii): 17. In view of the discussions made above, I pass the following: ORDER The criminal revision petition is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 38