- 1 - HC-KAR NC: 2025:KHC:26095 CRL.RP No. 1090 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 1090 OF 2021 BETWEEN: G NAGARAJAPPA S/O GURUSIDDAPPA AGED ABOUT 48 YEARS NO OCCUPATION INSOLVENT R/O NITTUVALLI DAVANAGERE – 577 002. …PETITIONER (BY SRI REVANNA BELLARY, ADVOCATE) AND: UMESH K V S/O K VEERABHADRAPPA AGED ABOUT 49 YEARS AGRICULTURIST R/O EACHGATTA VILLAGE DAVANAGERE TALUK AND DISTRICT – 577 002. …RESPONDENT (BY SRI VIJAYAKUMAR, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 Cr.P.C PRAYING TO SETTING ASIDE THE JUDGMENT DATED 30.11.2020 IN CRL.A.No.131/2018 OF I APPELLATE COURT, I ADDL.DISTRICT AND SESSIONS JUDGE COURT DAVANAGERE AND DATED 16.11.2018 IN C.C.No.1120/2017 OF TRIAL COURT, III ADDL.SENIOR CIVIL JUDGE AND JMFC COURT, DAVANAGERE AND PRAYS FOR ACQUIT THE PETITIONER FOR THE Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26095 CRL.RP No. 1090 of 2021 OFFENCE PUNISHABLE UNDER SECTION 138 OF THE N.I ACT AND ETC., THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER This criminal revision petition is directed against the judgment dated 30.11.2020 passed in Crl.A.No.131/2018 by the I Additional District and Sessions Judge, Davanagere where under the judgment of conviction dated 16.11.2018 passed in C.C.No.1120/2017 by the III Additional Senior Civil Judge and JMFC, Davanagere convicting the petitioner for the offence punishable under Section 138 of the N.I.Act and sentencing him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,05,000/- and in default, to undergo simple imprisonment for six months has been affirmed. - 3 - HC-KAR NC: 2025:KHC:26095 CRL.RP No. 1090 of 2021 2. Heard learned counsel for the petitioner and learned counsel for respondent. 3. The case of the respondent - complainant before the trial Court was that the accused is the Proprietor of Chandana Enterprises. The accused was acquainted with the complainant and he approached the complainant for loan for his family necessities. On 04.03.2015 complainant lent Rs.2,00,000/- to the accused and he has issued post dated cheque bearing No.378183 for Rs.2,00,000/- drawn on Canara Bank, K.B.Extension, Davanagere. The complainant presented the said cheque on 07.04.2015 and the same came to be dishonoured with endorsement as “insufficient funds.” The complainant got issued legal notice on 28.04.2015 demanding payment of cheque amount. The said notice has been served on the accused. The accused has not paid the amount of the said cheque nor sent any reply. Therefore, the complainant had initiated proceedings against petitioner - accused under Section 138 of the N.I.Act. - 4 - HC-KAR NC: 2025:KHC:26095 CRL.RP No. 1090 of 2021 4. The complainant has been examined as PW.1 and got marked Ex.P1 to P5. The statement of the accused has been recorded under Section 313 of Cr.P.C. The accused has not lead any defence evidence. The learned Magistrate after hearing arguments on both sides has convicted the petitioner-accused for the offence under Section 138 of the N.I.Act and sentenced him to undergo simple imprisonment for six months and to pay of Rs.2,05,000/- with default sentence. The said judgment of conviction has been challenged by the petitioner - accused before the Sessions Court in Crl.A.No.131/2018. The said appeal came to be dismissed on merits affirming the conviction of the petitioner for the offence under Section 138 of the N.I.Act and sentence passed thereon. 5. Learned counsel for the petitioner would contend that the petitioner has taken up defence that he had given cheque to one Naganna, LIC agent for security while borrowing Rs.10,000/- and the said Naganna has demanded higher interest and did not return the cheque and the said cheque - 5 - HC-KAR NC: 2025:KHC:26095 CRL.RP No. 1090 of 2021 has been misused through this complainant. The said defence has been suggested to PW.1 in his cross-examination. The complainant being a LIC agent is not having capacity to lend Rs.2,00,000/-. Without considering this aspect the learned Magistrate erred in convicting the petitioner and the learned Sessions Judge has erred in affirming the judgment of conviction and order of sentence passed by the trial Court. 6. Learned counsel for the respondent has supported the reasons assigned by the trial Court and the appellate Court and prayed for dismissal of revision petition. 7. Having heard learned counsels this Court has perused the impugned judgments and trial Court records and appellate Court records. 8. It is the specific case of the respondent - complainant that petitioner-accused borrowed Rs.2,00,000/- on 4.3.2015 and issued post dated cheque for making repayment of the amount borrowed and the said cheque on presentment has been dishonoured. The petitioner - accused has admitted his - 6 - HC-KAR NC: 2025:KHC:26095 CRL.RP No. 1090 of 2021 signature on the cheque and therefore, the presumption under Section 139 of the N.I.Act arises that the cheque is issued for discharge of debt. The said presumption is rebuttable presumption. The standard of proof for rebutting the said presumption is that of preponderance of probability. 9. The petitioner - accused has taken up defence that he had given cheque – Ex.P1 to one Naganna who was LIC agent at the time of borrowing Rs.10,000/- and he has misused the same through this complainant. The said defence has been put to PW.1 in his cross-examination by way of suggestion. PW.1 has denied the suggestion. Except the said suggestion, there is no other material placed on record to establish the said defence, more so, petitioner - accused has not sent reply to the legal notice even though it is served on him. Considering the said aspect, the petitioner - accused has failed to rebut the presumption drawn under Section 139 of the N.I.Act. What is the consequence of non rebuttable presumption has been considered by the Hon’ble Apex Court in the case of Kalamani tex and Another Vs. - 7 - HC-KAR NC: 2025:KHC:26095 CRL.RP No. 1090 of 2021 P Balasubramanian, reported in 2021 (5) SCC 283 wherein it is held as under: “13. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these ‘reverse onus’ clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat in the following words: “18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the - 8 - HC-KAR NC: 2025:KHC:26095 CRL.RP No. 1090 of 2021 onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant accused.” 10. The Hon’ble Apex Court in the case of Rajesh Jain Vs. Ajay Singh reported in AIR Online 2023 SC 807 has held as under: “55. As rightly contended by the appellant, there is a fundamental flaw in the way both the Courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the - 9 - HC-KAR NC: 2025:KHC:26095 CRL.RP No. 1090 of 2021 Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.” 11. Learned counsel for the petitioner has placed reliance on the decision of the Hon’ble Apex Court in the case of Rangappa Vs. Sri Mohan (Crl.A.No.1020/2010 disposed on 07.05.2010). In the said case, the Hon’ble Apex Court has held that the accused has to prove his probable defence in order to rebut the presumption drawn under Section 139 of the N.I.Act. The said decision is not of any help to the petitioner–accused as the petitioner-accused has failed to rebut the presumption by establishing his probable defence. - 10 - HC-KAR NC: 2025:KHC:26095 CRL.RP No. 1090 of 2021 12. Learned counsel for the petitioner has also placed reliance on the decisions of other High Courts as under: (i) Mahendra Kumar Modi vs. Harish Nagawala 2018 (1) DCR 341 (ii) Ms.Kim Hyundai vs. Shri Sumo Singh 2018 (1) DCR 8 (iii) Shanti Lal Joshi vs. Lalit Sharma 2018 (1) DCR 294 (iv) Jeewan Alamchand Paryani vs. Ramchand 2018 (1) DCR 780 13. The facts of the present case and the facts involved in those cases are different. Therefore, the ratio laid down in the said cases is not helpful to the case of petitioner – accused, more so, the said decisions are not binding on this Court. Considering all these aspects, there are no grounds to entertain this criminal revision petition. Hence, the criminal revision petition is dismissed. 14. Learned counsel for the petitioner submits that the petitioner is now declared as insolvent in Insolvency Case No.7/2015 dated 21.07.2020 passed by the learned I - 11 - HC-KAR NC: 2025:KHC:26095 CRL.RP No. 1090 of 2021 Additional District and Sessions Judge at Davanagere. Petitioner can take benefit of the said order when complainant enforces the impugned judgment passed by the trial Court. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DKB List No.: 1 Sl No.: 31