- 1 - HC-KAR NC: 2025:KHC:52205 CRL.RP No. 99 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 99 OF 2022 BETWEEN: KUMARASWAMY S/O LATE SHANTHAVEERAIAH AGED ABOUT 47 YEARS BUSINESSMAN R/O TGN LAYOUT, B.H. ROAD SHIVAMOGGA-577 201. …PETITIONER (BY SRI SUPREETH ATHREYAS, ADVOCATE FOR SRI VIJAY KRISHNA BHAT M., ADVOCATE) AND: SHIVAMMA W/O LATE RANGAPPA AGED ABOUT 63 YEARS R/O KANCHINAKATTE VILLAGE NIDIGE HOBLI, SHIVAMOGGA TALUK-577 201. …RESPONDENT (BY SRI P.N. HARISH, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 (1) READ WITH SECTION 401 OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT PASSED BY THE LEARNED III ADDITIONAL SESSIONS JUDGE AT SHIVAMOGGA IN CRL.A.NO.70/2021 DATED 27.11.2021 AND THE JUDGMENT PASSED BY THE LEARNED III ADDITIONAL CIVIL JUDGE AND J.M.F.C AT SHIVAMOGGA IN C.C.NO.4494/2014 DATED 10.03.2021 AND ACQUIT THE ACCUSED BY ALLOWING THIS REVISION. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI Digitally signed by ANUSHA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:52205 CRL.RP No. 99 of 2022 ORAL ORDER Challenging judgment dated 27.11.2021 passed by III Additional Sessions Judge, Shivamogga, in Crl.A.no.70/2021 and judgment of conviction and order of sentence dated 10.03.2021 passed by III Additional Civil Judge and J.M.F.C., Shivamogga, in C.C.no.4494/2014, this revision petition is filed. 2. Sri Supreeth Athreyas, learned counsel appearing for Sri Vijay Kirshna Bhat M., advocate for petitioner (accused) submitted that present proceedings arise out of private complaint filed by respondent (complainant) under Section 200 of Code of Criminal Procedure, 1973, ('CrPC', for short) alleging that complainant was owning lands in Kanchinakatte village, which she sold and had deposited consideration amount in her bank account maintained at Pragathi Krishna Gramina Bank, Umblebylu Branch, Shivamogga. It is further stated that one Ravindra - Employee of said Bank and one Chandrappa had brought accused to complainant with request to advance loan to accused representing that accused would pay interest at 2% per month to complainant on said loan. - 3 - HC-KAR NC: 2025:KHC:52205 CRL.RP No. 99 of 2022 3. As per said request and assurance of accused to return money with interest, complainant paid Rs.5,50,000/- to accused on 04.06.2013. It was stated that accused was paying interest regularly till October, 2013. Thereafter, accused sought for additional amount of Rs.2,00,000/- which was lent on 30.10.2013. Thus accused had borrowed total sum of Rs.7,50,000/- and agreed to repay same within three months. When accused defaulted in payment of interest, complainant insisted to repay entire borrowed amount with interest on 15.04.2014. At that time, accused executed a partly filled promissory note in favour of complainant and thereafter issued cheque no.676445 dated 16.05.2014 drawn on Pragathi Gramina Bank, Umblebylu Branch, Shivamogga, covering principal amount borrowed. 4. When said cheque was presented for collection on 05.08.2014, it returned dishonored with endorsement 'insufficient funds'. On same being intimated by complainant, accused requested for re-presentation of cheque. As per request, cheque was re-presented on 14.08.2014 only to be dishonored again on same reason. Immediately, thereafter complainant got issued demand notice dated 13.09.2014 by RPAD as well as Courier. Though demand notice sent by RPAD - 4 - HC-KAR NC: 2025:KHC:52205 CRL.RP No. 99 of 2022 returned with postal shara as 'not claimed', demand notice sent by courier was served. Despite same, accused failed to repay amount within permissible time thereby committed offence punishable under Section 138 of Negotiable Instruments Act, 1881, ('NI Act', for short). 5. It was submitted, on appearance, accused denied charges and sought trial. Thereafter, complainant got herself examined as PW.1 and three others as PWs.2 to 4 and got marked Exs.P1 to P13. Thereafter, incriminating material was explained to accused for recording statement under Section 313 of CrPC, he denied incriminating material and thereafter stepped into witness-box as DW.1 and no documents are marked on his behalf. 6. It was submitted, in cross-examination of complainant as well as in her deposition, accused had setup substantial defence namely that complaint was not preceded with due service of demand notice on accused and as such not maintainable; that there was no proof of payment of money as contented and that cheque in question was issued to one Ravindra with whom accused had transaction, but said cheque was misused by complainant. It was submitted that said - 5 - HC-KAR NC: 2025:KHC:52205 CRL.RP No. 99 of 2022 Ravindra was examined as PW.2 by complainant and had stated he was working as Peon in Krishna Pragathi Bank and was acquainted with complainant as well as accused. He stated that transaction of payment of money by complainant to accused was in bus stop next to Bank. Whereas PW.3, who was stated to be one of witnesses to transaction by complainant deposed that transaction was made in Bank premises and also admitted that he did not know whether payment was made in Cash or otherwise would substantiate defence. Despite same, trial Court as well as Appellate Court had convicted accused on basis of presumption under Section 139 of NI Act, which was unsustainable and contrary to law and sought for allowing revision petition. 7. On other hand, Sri P.N. Harish, learned counsel for complainant opposed revision petition. It was submitted, one of defence setup by accused was that cheque in question was issued to Ravindra. Same would amount to admission of signature on Ex.P1 - cheque and bore name of complainant. Therefore, as per ratio laid down by Hon'ble Supreme Court in case of Bir Singh v. Mukesh Kumar, reported in (2019) 4 SCC 197, presumption under Section 139 of NI Act would be attracted. Though defence taken is about denying transaction, - 6 - HC-KAR NC: 2025:KHC:52205 CRL.RP No. 99 of 2022 same was based on contradiction between deposition of PW.2 and PW.3 about actual place of making payment, which would not be sufficient to upset presumption as accused had not even made any suggestions about cheque having been issued to PW.2 - Ravindra in relation to transactions with accused. Therefore, both Courts were justified in extending presumption to complainant and passing impugned order of conviction and sought for dismissal of revision petition. 8. Heard learned counsel, perused impugned judgments and record. 9. From above, it is seen that this revision petition is by accused challenging concurrent findings, convicting accused for offence punishable under Section 138 of NI Act. Challenge is mainly on ground of perversity insofar as finding of trial Court about issuance of Ex.P1 - cheque to be for legally enforceable debt. While passing impugned judgment, it is seen that trial Court took note of pleadings and deposition of complainant that accused was introduced by Ravindra, who was an employee in Bank, wherein complainant had deposited consideration amount received by her on sale of her lands. Complainant not only - 7 - HC-KAR NC: 2025:KHC:52205 CRL.RP No. 99 of 2022 examined herself as PW.1, but also examined Ravindra - Employee of Bank as PW.2 as well as one Chandrappa as PW.3. 10. Even Bank Manager was examined as PW.4, who clearly deposed that as per Ex.P9 - Account Statement of complainant, there was deposit of Rs.29,00,000/-. Thus complainant established her financial capacity. PWs.2 and 3 in their deposition stated about transaction between complainant and accused. Indeed while stating exact place of transaction i.e., payment of money by complainant to accused, PW.2 stated that it was in bus stop near Bank, PW.3 stated that payment was made in Bank premises as well as stating that he did not remember whether payment was made in Cash or other mode of payment. Mere inconsistency between two witnesses about place of payment would not be sufficient to upset presumption available in favour of complainant when both witnesses are consistent insofar as lending of money. Even, if deposition of PW.3 is discounted on ground that PW.3 stated he does not remember about payment being made in cash or otherwise, deposition of PW.2 would still corroborate deposition of complainant as PW.1. - 8 - HC-KAR NC: 2025:KHC:52205 CRL.RP No. 99 of 2022 11. It is noted by trial Court and Appellate Court that main ground urged was that cheque was issued to Ravindra with regard to which no suggestions were made. Yet another defence was disputing financial capacity of complainant which stood diluted with examination of Bank Manager as PW.4, who deposed that as on 08.03.2013 complainant had sum of Rs.29,00,000/- in her account and that she kept Rs.10,00,000/- and Rs.8,00,000/- in fixed deposit. And had taken loan of Rs.5,00,000/- on fixed deposit on 03.06.2013 and thereafter, she had withdrawn sum of Rs.5,50,000/- on 04.06.2013. Similarly she had also obtained loans of Rs.2,00,000/- on fixed deposit and withdrawn Rs.2,02,000/- on 29.10.2013. To substantiate same, Bank Account Statement was got marked as Ex.P9. 12. Based on same, trial Court held that complainant had established financial capacity and that Ex.P1 - cheque was issued in discharge of legally enforceable debt. There is no dispute about cheque in question being presented for collection, its dishonor, issuance of demand notice as well as filing of private complaint thereafter to be within time limits indicated in Section 138 of NI Act. Thus, there is no dispute about foundational facts. It is seen that while passing impugned - 9 - HC-KAR NC: 2025:KHC:52205 CRL.RP No. 99 of 2022 judgments, both Courts on appreciation of entire material and record arrived at well reasoned finding, that accused had failed to upset presumption available under Section 139 of NI Act in favour of complainant. Therefore, conviction of accused based on presumption would be in accordance with law. 13. Thus, no ground of perversity in findings or about infraction with any provision of law is established. Revision petition is without merit and stand dismissed. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 21