- 1 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 1286 OF 2016 C/W CRIMINAL REVISION PETITION NO. 1287 OF 2016 IN CRL.RP No. 1286/2016 : BETWEEN: SRI. D. ANBU ROSE S/O DEDVARAJ UDAIYAR AGED ABOUT 55 YEARS R/A NO.73/1, 2ND MAIN ROAD RAMACHANDRAPURAM BANGALORE - 560 021. &PETITIONER (BY SRI S. VASANTH MADHAV, ADVOCATE) AND: SRI. KRISHNAN S/O LATE DEVARAJ AGED ABOUT 56 YEARS R/AT NO.7, 1ST MAIN ROAD RAMACHANDRAPURAM BANGALORE - 560 021. &RESPONDENT (BY SRI SAMEER S.N, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE PASSED BY THE XIII A.C.M.M., BANGALORE IN Digitally signed by SHARADAVANI B Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 C.C.NO.17540/2014 DATED 17.10.2015 AND ASLO THE ORDER PASSED BY THE LIX ADDL. CITY CIVIL AND S.J., BANGALORE IN CRL.A.NO.1373/2015 DATED 11.08.2016 AND CONSEQUENTLY DISMISSED THE COMPLAINT OF THE RESPONDENT AND ALLOW THIS CRL.RP. IN CRL.RP NO. 1287/2016 BETWEEN: SRI. D. ANBU ROSE S/O DEDVARAJ UDAIYAR AGED ABOUT 55 YEARS R/A NO.73/1, 2ND MAIN ROAD RAMACHANDRAPURAM BANGALORE - 560 021. ...PETITIONER (BY SRI S. VASANTH MADHAV, ADVOCATE) AND: SRI. KRISHNAN S/O LATE DEVARAJ AGED ABOUT 56 YEARS R/AT NO.7, 1ST MAIN ROAD RAMACHANDRAPURAM BANGALORE - 560 021. ...RESPONDENT (BY SRI SAMEER S.N, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE ON 17.10.2015 PASSED BY THE XIII A.C.M.M., BANGALORE IN C.C.NO.17551/2014 AND ALSO THE ORDER DATED 11.08.2016 PASSED BY THE LIX ADDL. CITY CIVIL AND S.J., BANGALORE IN CRL.A.NO.1372/2015 AND - 3 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 CONSEQUENTLY DISMISSED THE COMPLAINT OF THE RESPONDENT AND ALLOW OF THIS CRL.RP AND REMAND THE MATTER TO THE TRIAL COURT IN ORDER TO FACILITATE THE APPELLANT TO ADDUCE HIS FATHER EVIDENCE AND ALSO TO SEND THE EX.P.1 CHEQUE FOR HAND WRITING EXPERT FOR VERIFICATION OF THE SIGNATURE OF THE PETITIONER A/W OTHER DOCUMENTS AND ALSO TO PRODUCE OTHER DOCUMENTS IN SUPPORT OF HIS CASE. THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL ORDER Matters are connected as both are between same parties in relation to two different cheques on similar contentions, defences and depositions. 2. For sake of convenience, facts in Criminal Revision Petition no.1287/2016 are referred. 3. Challenging judgments of conviction and sentences dated 17.10.2015 in C.C.no.17540/2014 and 17551/2014 passed by XIII Additional Chief Metropolitan Magistrate at Bengaluru and confirmed in judgment dated 11.08.2016 passed by LIX Additional City Civil and Sessions Judge, Bengaluru City - 4 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 in Crl.A.no.1373/2015 and 1372/2015, above Revision Petitions are filed. 4. Sri Vasanth Madhav, learned counsel for petitioner submitted, present proceedings were initiated on a private complaint filed by respondent complainant alleging that accused was known since 40 years as neighbor of complainant and on 10.12.2012 borrowed a sum of Rs.3,00,000/- as hand loan agreeing to repay same with interest at 18% per annum and on demand issued cheque no.027699 dated 05.05.2014 for Rs.1,00,000/- towards part payment drawn on Karnataka Rajya Kaigarika Sahakara Bank Niyamitha, Halasur Branch, Bangalore, which when presented for collection returned dishonored with endorsement "Other failure" on 12.05.2014 and accused had failed to repay amount even when demand notice got issued by complainant on 21.05.2014 was served on 29.05.2014 and on other hand, accused had sought to issue an untenable reply on 13.06.2014 thereby committing offence punishable under Section 138 of Negotiable Instruments Act, 1881 (N.I. Act). - 5 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 5. On appearance, accused denied charges and sought trial. Complainant examined himself as PW1 and got marked Exs.P1 to P7. On explanation of incriminating material which was denied as false, statement under Section 313 of Cr.P.C. was recorded. Thereafter accused stepped into witness box as DW1 and got marked Exs.D1 to D2. 6. It was submitted that accused had set up defence, firstly that Ex.P1 cheque had unauthorized alteration correcting "Rs.10,000/-" as "Rs.1,00,000/-". Apart from above, it was submitted, Ex.P2 endorsement mentioned "Other failure" and not "insufficiency of funds". In view of above factors, no offence under Section 138 of NI Act could be stated to have been committed for initiation of action. 7. Referring to contents of reply notice in Ex.P6, it was stated that accused had denied loan transaction and yet complainant failed to establish lending money to accused. It was also submitted accused admitted Rs.10,000/- was borrowed by his son from son of complainant but repaid it on 28.12.2011, as indicated by entry in Ex.D2 account statement. - 6 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 8. In view of above, defence setup by accused about issuance of cheque was as a security for loan transaction of his son which was repaid, but cheque issued as security for said loan was not returned and misused by complainant herein stood probabilised. Therefore, finding of trial Court that accused had failed to upset presumption under Section 139 of NI Act, was contrary to law laid down by Hon'ble Supreme Court in case of Sri Dattaraya v. Sharanappa reported in 2024 INSC 586, wherein, it was held burden to establish defence was not beyond reasonable doubt. It was submitted when accused had probabilised his defence, onus would shift back to complainant to establish his case. However, complainant failed to substantiate transaction as complainant merely relied upon cheque, bank endorsement, demand notice, reply and complaint, which would not substantiate lending, as claimed. On above ground, it is submitted that impugned findings of trial Court were without basis and perverse. It was also submitted that DW1 had deposed, in terms of above, which would also corroborate defence. On said ground sought for allowing Revision. - 7 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 9. On other hand, Sri Sameer S.N., learned counsel for respondent - complainant opposed Revision. It was submitted that upon return of cheque dishonored, complainant had got issued demand notice as per Ex.P3. To said notice, accused had got issued reply as per Ex.P6. Defence taken in Ex.P6 was that cheque was given as security for loan, obtained by one Ramachandra from complainant. 10. However, in his deposition, DW1 had taken a different defence that cheque in question was given as security for loan transaction between loan obtained by son of accused from complainant's son. 11. It was further submitted in cross examination of PW1, even such stand was contradicted when there was suggestion denying cheque in question was given by his son to complainant's son. It was thus submitted that accused had by adopting contradictory stands diluted defence, and therefore, Trial Court as well as Appellate Court were justified in convicting accused based on presumption available under Section 139 of NI Act as there was admission about issuance of cheque as security. It was submitted, though there was - 8 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 correction in mentioning amount in Ex.P1-cheque, said correction was countersigned and description of amount in words matched amount mentioned in figures. Therefore, there was no contradiction. 12. It was also sought to be contented that handwriting on Ex.P1-cheque, in this case, matched with that on Ex.P1- cheque in connected case, and therefore, same would also dilute defence of accused. On above grounds sought for dismissal of Revision Petition. 13. Heard learned counsel on both side and perused impugned judgment available on record. 14. From above, it is seen that these Revision Petitions are by accused challenging concurrent findings, convicting accused for offence punishable under Section 138 of NI Act on ground of perversity of findings, firstly, insofar as finding that Section 138 of NI Act would be attracted. Referring to correction made in amount in figures mentioned on Ex.P1, cheque and reason for return of Ex.P2 endorsement, being "Other failure". - 9 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 15. While passing impugned judgment, Trial Court has taken note of said contention and overruled it by referring to ratio laid down by Hon9ble Supreme Court in case of M/s. Laxmi Dyechem vs. State of Gujarat reported in (2012)13 SCC 375. On first glance, there appears to be an addition of a "0" in figures mentioning amount in cheque. But it is seen same is countersigned by executant, which would validate said correction and bring it in line with amount mentioned in words. 16. Insofar as reason for dishonour mentioned in Ex.P2 endorsement, it is seen that Hon'ble Supreme Court in case of Rangappa vs. Sri Mohan reported in (2010)11 SCC 441 as well as in case of M/s. Laxmi Dyechem (supra) has held offence under Section 138 of NI Act would be complete where a cheque presented is returned without payment and thereafter a demand notice is got issued by holder of a cheque and drawer of cheque fails to repay amount or issue valid reply within stipulated time. 17. In instant case, upon receipt of endorsement of dishonour of Ex.P1-cheque, on 12.05.2014, demand notice is got issued on 21.05.2014 is served on accused on 29.05.2014. - 10 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 After service, accused issued Ex.P6 reply notice dated 13.06.2014, filing of complaint is on 02.07.2014, which would be within timeline stipulated under Section 138 of NI Act. Thus, failure to make payment of amount mentioned in cheque on demand would constitute offence. Hence, finding of trial Court about cheque returning unpaid attracting Section 138 of NI Act in facts of this case, would be in accordance with law. 18. Insofar as defence taken that there was no transaction between complainant and accused that transaction between accused's son and complainant's son, i.e., borrowal of Rs.10,000/- was repaid as per Ex.D-2 and cheque in question was issued as security, it is seen that in Ex.P6 reply notice, accused has taken two contradictory stands. In para-4, he contends that cheque in question was issued as security for loan of Rs.50,000/- borrowed from his friend Ramachandra in year 2019, which was cleared and said Ramachandra had died in year 2013. But, in next paragraph it is suggested that said Ramachandra had stolen cheque and handed over to complainant. - 11 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 19. In instant case, accused on one hand denies any loan transaction with complainant. On other hand, he claims that cheque in question was issued as security for loan transaction of Ramachandra. He adopts yet another contradictory contention that loan transaction was between complainant's son and which was repaid as per Ex.P2. In view of contradictory and mutually destructive plea, entire defence of accused would be liable to be struck down. While there is no bar against respondent/accused taking contradictory stand and even mutually destructive plea, same plea in pleadings, at time of evidence however they would require to stick to one stand. In case, there is attempt to lead evidence on both, it would lead to a situation where both defences would be liable to be struck down. 20. Under such circumstances, impugned order of conviction passed by trial Court as well as confirmed by Appellate Court on basis of presumption under Section 139 of N.I. Act would be justified and in accordance with law. Especially as there is admission about execution of cheque and its offering as security for loan, either in respect of loan by - 12 - HC-KAR NC: 2025:KHC:52274 CRL.RP No. 1286 of 2016 C/W CRL.RP No. 1287 of 2016 Ramachandra or by his son. Thus none of contentions urged make out case of findings of trial Court suffering from perversity. 21. Crl.R.P.no.1286/2016 is virtually on similar facts and contentions except "correction of amount mentioned in cheque in figures" is absent. Therefore, Crl.R.P.no.1286/2016 would have to follow result in Crl.R.P.no.1287/2016. Hence, both revision petitions are dismissed. A request made by learned counsel for respondent/complainant for release of amount. But same has to be made before and considered by trial Court. To facilitate early consideration, registry is directed to transmit TCR to trial Court. Sd/- (RAVI V HOSMANI) JUDGE HNM/GRD List No.: 1 Sl No.: 14