- 1 - HC-KAR NC: 2025:KHC:25872 CRL.RP No. 302 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 302 OF 2021 BETWEEN: A.V. BHAVYA W/O RAVI KUMAR AGED ABOUT 38 YEARS 3RD MAIN ROAD, WARD No.7 SARASWATHI PURAM TURUVEKERE TOWN - 572 227. …PETITIONER (BY SRI PAVAN KUMAR G, ADVOCATE) AND: T.P. DRAKSHAYANI W/O MOHAN AGED ABOUT 35 YEARS R/AT OPPOSITE I.T.I COLLEGE VIDYANAGAR TUMAKURU DISTRICT - 572 101. …RESPONDENT (BY SMT. RUSHAB A.R, ADVOCATE FOR SRI H.V. PRAVEEN GOWDA, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION PASSED BY HONBLE SENIOR CIVIL JUDGE JMFC AT TURUVEKERE IN CC.No.103/2016, JUDGMENT DATED 25.11.2017, WHICH GOT CONFIRMED BY THE HON’BLE V ADDITIONAL DISTRICT AND SESSIONS JUDGE AT TIPTUR IN CRL.A.No.10036/2017, DATED 06.07.2020 AND ETC., THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25872 CRL.RP No. 302 of 2021 CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER This revision petition is directed against the judgment dated 06.07.2020 passed in Crl.A.No.10036/2017 by V Addl. District and Sessions Judge, Tiptur, wherein the judgment of conviction dated 25.11.2017 passed in C.C.No.103/2016 by Sr.Civil Judge and JMFC, Turuvekere convicting the petitioner /accused for the offences punishable under Section 138 of N.I.Act has been confirmed. 2. Heard the learned counsel for the petitioner and learned counsel for the respondent. 3. The case of the respondent/complainant before the trial court was that the petitioner/accused borrowed a sum of Rs.2,50,000/- from the respondent/complainant on 01.07.2015 and agreed to repay the same with interest at the rate of 18% p.a. within three months. Pursuant to the said transaction, the accused has issued a cheque bearing No.120838 dated 01.05.2015 for a sum of Rs.2,50,000/- drawn on State Bank of Mysore, Turuvekere Branch on - 3 - HC-KAR NC: 2025:KHC:25872 CRL.RP No. 302 of 2021 01.07.2015 to the complainant, who presented the said cheque for encashment on 01.10.2015. But it came to be dishonoured for the reason "Funds Insufficient" under memo dated 3.10.2015. The complainant got issued a legal notice to the accused on 08.10.2015 demanding payment of the cheque amount, but the said notice has been returned with a shara "not claimed" on 19.10.2015. As the accused has not paid the cheque amount within fifteen days, the complainant initiated proceedings against the accused/petitioner for the offence under Section 138 of N.I.Act. The complainant/respondent has been examined as PW.1 and got marked Ex.P1 to Ex.P7. The statement of the accused has been recorded under section 313 Cr.P.C. The accused has not led any defence evidence. The learned Magistrate after hearing the arguments of both sides and appreciating the evidence on record, convicted the accused/petitioner for the offence under Section 138 of N.I.Act and sentenced to undergo simple imprisonment for six months and awarded compensation of Rs.2,60,000/-, out of which a sum of - 4 - HC-KAR NC: 2025:KHC:25872 CRL.RP No. 302 of 2021 Rs.2,50,000/- is payable to the complainant and Rs.10,000/- to the State as fine. The said judgment of conviction and order of sentence has been challenged by the accused before the Sessions Court in Crl.A.No.10036/2017 and the same came to be dismissed affirming the judgment of conviction and order of sentence passed by the trial court. 4. Learned counsel for the petitioner contended that the respondent/complainant is a housewife and she has not established her capacity to lend Rs.2,50,000/-. The trial court and the appellate court have not considered the said aspect. Learned counsel for the respondent supported the reasons assigned by the trial court and the appellate court and prays for dismissal of the revision petition. 5. Having heard the learned counsel for the petitioner, this court has perused the impugned judgment and trial court records. 6. It is a specific case of respondent/complainant that the petitioner/accused borrowed Rs.2,50,000/- on - 5 - HC-KAR NC: 2025:KHC:25872 CRL.RP No. 302 of 2021 01.07.2015 agreeing to repay the same within three months and issued post dated cheque as per Ex.P.1 dated 01.10.2015 for Rs.2,50,000/-. The petitioner/accused has not disputed issuance of cheque as per Ex.P.1 to the respondent/complainant. As the cheque Ex.P.1 has not been disputed, a presumption has to be drawn under section 139 of N.I.Act that the cheque has been issued for discharge of debt. The said presumption is a rebuttable presumption, a standard of proof for rebutting the said presumption is that of preponderance of probability. 7. The petitioner has not got issued any reply to the demand notice issued by the respondent / complainant. On perusal of cross-examination of PW1, no defence has been taken up by the petitioner/accused except denying the fact that she has borrowed money from the complainant. How the cheque of petitioner/accused reached the hands of respondent/complainant has not been stated by accused or suggested to PW1 in cross-examination. Therefore the presumption drawn under Section 139 N.I. Act that the - 6 - HC-KAR NC: 2025:KHC:25872 CRL.RP No. 302 of 2021 cheque is issued towards discharge of debt remain un- rebutted. The consequences of non-rebuttal of the presumption drawn under Section 139 of N.I.Act has been considered by the Hon'ble Apex Court in the case of Rajesh Jain Vs. Ajay Singh reported in AIR Online 2023 SC 807 wherein it is observed thus: "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 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." - 7 - HC-KAR NC: 2025:KHC:25872 CRL.RP No. 302 of 2021 8. The Hon'ble Apex Court also considered the same aspect in the case of Kalamani tex and Another Vs. P. Balasubramanian reported in (2021) 5 SCC 283 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 crystallized 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 - 8 - HC-KAR NC: 2025:KHC:25872 CRL.RP No. 302 of 2021 presumption, the 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." 9. In view of non-rebuttal of the presumption drawn under Section 139 of N.I.Act, if other ingredients of offence under Section 138 of N.I.Act are established, the court has to straight away convict the accused/petitioner for the offence under Section 138 of N.I.Act. Considering the said aspect, the learned Magistrate has rightly convicted the petitioner for offence under Section 138 of N.I.Act and the appellate court has rightly re-appreciated the evidence on record and affirmed the judgment of conviction passed by the trial court. 10. Learned counsel for the petitioner submits that there is a sentence of imprisonment, as the petitioner being - 9 - HC-KAR NC: 2025:KHC:25872 CRL.RP No. 302 of 2021 a lady having husband and children and as she faced trial for nine years, the said sentence of imprisonment be modified into enhancement of fine/compensation amount. Considering the fact that the petitioner is a woman having husband and children, faced trial for nine years, the sentence of imprisonment requires to be modified to sentence of fine. The trial court has ordered payment of compensation of Rs,2,60,000/- under Section 357 Cr.P.C., and out of that Rs.2,50,000/- has to be paid as compensation to the complainant and remaining Rs.10,000/- to the State exchequer as fine. Considering the fact that the transaction has taken in the year 2015, i.e., nearly 10 years ago, the respondent/complainant requests to be compensated by enhancing fine/compensation amount as the sentence of imprisonment requires to be modified into fine / compensation. Therefore this court deems it fit to enhance the fine / compensation by a sum of Rs.1,00,000/-. For the aforesaid reasons, the following : - 10 - HC-KAR NC: 2025:KHC:25872 CRL.RP No. 302 of 2021 ORDER i. The revision petition is allowed in part. ii. The conviction of the petitioner/accused for the offence under Section 138 of N.I.Act passed by the Trial Court and affirmed by the Appellate Court is confirmed. iii. The sentence of imprisonment for a period of six months is modified to sentence of fine/compensation by enhancing the compensation already awarded by the trial court by a sum of Rs.1,00,000/-. The petitioner/accused shall pay a total fine of Rs.3,60,000/- and in default to undergo simple imprisonment for a period of six months. Out of the said fine amount, a sum of Rs.3,50,000/- is ordered to be paid as compensation to the respondent/complainant and remaining amount of Rs.10,000/- is to be defrayed to the State. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE SD List No.: 1 Sl No.: 40 CT: BHK