- 1 - HC-KAR NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 1263 OF 2023 BETWEEN: SMT. B RAJESHWARI, W/O KARTHIK, AGED ABOUT 43 YEARS, R/AT NO 31, NEW NO 62/1, 2ND FLOOR, 2ND MAIN, VYALIKAVAL, BANGALORE - 560 003. AND ALSO AT VIDYANAGAR CROSS, BETTHALASURU, HANCHE POST, BEHIND GOVERNEMNT SCHOOL, DEVANAHALLI TALUK, BANGALORE - 560 057. …PETITIONER (BY SRI GURURAJ KULKARNI, ADVOCATE) AND: SMT. JAYALAKSHMI, W/O KRISHNAPPA, AGED ABOUT 40 YEARS, R/AT NO 31, NEW NO 62/1, 2ND FLOOR, 2ND MAIN, VYALIKAVAL, BANGALORE - 560 003. …RESPONDENT (BY SRI KUSHAL GOWDA, ADVOCATE FOR SRI ABHINAY Y T., ADVOCATE) THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 16.12.2021 PASSED BY THE LEARNED XV A.C.M.M, BENGALURU IN C.C.NO.18228/2017 AND THE ORDER OF CONFIRMATION DATED 05/12.06.2023 PASSED BY THE LIX ADDL.CITY CIVIL AND SESSIONS JUDGE BENGALURU IN CRL.A.NO.102/2022 BY ALLOWING THIS RP AND ACQUIT THE ACCUSED. Digitally signed by ANUSHA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL ORDER Challenging judgment dated 05.06.2023 passed by LIX Additional City Civil and Session Judge (CCH-60), Bengaluru, in Crl.A.no.102/2022 confirming judgment of conviction and order of sentence dated 16.12.2021 passed by XV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.no.18228/2017, this revision petition is filed. 2. Sri Gururaj Kulkarni, learned counsel for petitioner (accused) submitted that proceedings were initiated on a private complaint filed under Section 200 of Code of Criminal Procedure, 1973, ('CrPC', for short) by respondent (complainant) alleging that complainant was working as cook and accused was running Chit Fund business in shop premises on Ground Floor of her residence. Since accused had represented to her that she had registered license to run Chit Fund business and requested her to become a Member, she had subscribed to Chit commencing on 10.02.2013 on monthly subscription amount of Rs.10,000/- for duration of 50 months. - 3 - HC-KAR NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023 It was further submitted that complainant had paid monthly subscriptions every month without delay and Chit ended in February, 2017 and accused was liable to pay her Rs.5,00,000/-. 3. On demand, accused had issued cheque bearing no.230318 dated 15.03.2017 drawn on State Bank of Mysore, Vyalikaval Branch, Malleshwaram, Bengaluru, for Rs.5,00,000/- in her favour. But on presentation, said cheque got dishonored, returned with endorsement 'funds insufficient' on 17.04.2017 and thereafter demand notice dated 19.04.2017 got issued by complainant by RPAD, returned with postal shara as 'not claimed' on 18.05.2017. By failing to repay amount within time, accused committed offence punishable under Section 138 of NI Act. 4. It was submitted, on appearance, accused had disputed charges and sought trial. Complainant was thereafter examined as PW.1 and got marked documents as Exhibits-P1 to P8. Thereafter, incriminating material was explained to accused, which she denied and her statement under Section 313 of CrPC was recorded. Accused thereafter led defence - 4 - HC-KAR NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023 evidence by examining herself as DW.1 and got marked one document as Exhibit-D1. 5. It was submitted, though in cross-examination of PW.1 as well as in her deposition, accused had set-up substantial defence, firstly, contending that filing of private complaint was not preceded with service of demand notice, trial Court had presumed service based on cover returning as 'not claimed' without noticing fact that address of complainant and accused were one and same. And in cross-examination, PW.1 admitted that accused had vacated house. Apart from above, accused had also disputed transaction contending that cheque was stolen etc. Without proper appreciation of said contentions which would be sufficient to upset presumption available to complainant, trial Court and First Appellate Court had passed impugned order of conviction basing only on statutory presumption. Therefore, impugned judgments suffered from perversity and called for interference. 6. On other hand, Sri Abhinay Y.T., learned counsel for respondent (complainant) opposed petition. It was submitted, both Courts while passing impugned judgments referred to - 5 - HC-KAR NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023 entire material on record and arrived at reasoned conclusions which did not leave any scope for interference. Insofar as specific contention about failure to serve demand notice prior to filing of complaint, it was submitted, in view of admission elicited in para-8 of cross-examination of DW.1, contention about non-compliance with requirement of service of demand notice would not be tenable. On said ground sought for dismissal of revision petition. 7. Heard learned counsel, perused impugned judgments and trial Court record. 8. 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 of findings insofar as service of demand notice prior to filing of complaint. A bare perusal of cause title in complaint would reveal that address of complainant and accused are one and same. Though same would be possible in case accused were tenant as contented by complainant, in cross-examination of PW.1, specific admission is elicited about accused residing in said house on lease prior to complainant occupying same. - 6 - HC-KAR NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023 However suggestion that as on date of issuance of legal notice, accused was not residing at address is denied. 9. Exhibit-P5 - copy of private complaint filed by mother-in-law of complainant against accused on 18.07.2016, would indicate address of accused herein as no.788/1St Main, Behind Vyalikaval Police Station, Vyalikaval, Malleshwaram, Bengaluru - 560 003. Even Exhibit-P6 - certified copy of judgment in C.C.no.19259/2016 indicates same address shown in Ex.P5. In instant case, complaint is filed on 28.06.2017 after issuing Ex-P3 - demand notice on 19.04.2017 which returned with postal shara as 'not claimed'. 10. While passing impugned judgment, trial Court has proceeded to hold service sufficient on basis of postal shara has 'not claimed'. Though same cannot be stated to be contrary to law, but, it would be open for accused to establish that she was not residing at said address at relevant period. Same is achieved by eliciting admission in cross-examination as well as from documents got marked by complainant. Section 138 of NI Act, mandates issuance of demand notice prior to filing of - 7 - HC-KAR NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023 private complaint and failure to establish due issuance and its service on accused would be fatal. 11. Consequently, impugned judgments passed by trial Court as well as Appellate Court would be contrary to material on record. Therefore, revision petition is allowed; impugned judgments of conviction and order of sentences dated 05.06.2023 passed by LIX Additional City Civil and Sessions Judge, (CCH-60), Bengaluru, in Crl.A.no.102/2022 and dated 16.12.2021 passed by XV Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.no.18228/2017 are set aside. Accused is acquitted of offence punishable under Section 138 of NI Act. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 39