- 1 - HC-KAR NC: 2025:KHC:26741 CRL.RP No. 1015 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 1015 OF 2022 BETWEEN: H B SHIVARAJU AGED ABOUT 51 YEARS ASSISTANT TEACHER GOVERNMENT PRIMARY SCHOOL N KODIDHALLY VILALGE KOPPA HOBLI, MADDUR TALUK MANDYA DISTRICT – 571 425. …PETITIONER (BY SRI RAJESH A, ADVOCATE) AND: BILIYAPPA S/O VENAKATEGOWDA AGED ABOUT 57 YEARS RESIDING AT BESAGARAHALLI CROSS BESAGARAHALLI ADDA RAOD HOSAKRE POST, KOPPA HOBLI MADDUR TALUK MANDYA DISTRICT – 571 425. …RESPONDENT (BY SRI DILIP KUMAR, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT ORDER DATED 30.10.2021 PASSED BY THE HON’BLE II Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26741 CRL.RP No. 1015 of 2022 ADDL.DISTRICT AND SESSIONS JUDGE, MANDYA IN CRL.A.No.23/2021 AND ALSO THE JUDGMENT AND ORDER OF SENTENCE AND CONVICTION DATED 21.01.2021 PASSED BY THE HON’BLE IV ADDL.CIVIL JUDGE AND J.M.F.C MADDUR IN C.C.No.1109/2016 AND ACQUIT THE PETITIONER 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 revision petition is directed against the judgment dated 30.10.2021 passed in Crl.A.No.23/2021 by the II Additional District and Sessions Judge, Mandya where under the judgment of conviction dated 21.01.2021 passed in C.C.No.1109/2016 by the IV Additional Civil Judge and JMFC, Maddur convicting the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I.Act” for brevity) and sentencing to pay fine of Rs.2,75,000/- in default, to undergo simple imprisonment for six months has been affirmed. 2. Heard learned counsel for the petitioner and learned counsel for the respondent. - 3 - HC-KAR NC: 2025:KHC:26741 CRL.RP No. 1015 of 2022 3. The case of the respondent / complainant was that the complainant and accused are known to each other and friends. The accused has borrowed hand loan of Rs.2,00,000/- on 14.02.2016 from the complainant for his legal and family necessities agreeing to repay the same within last week of April 2016. When the complainant demanded for repayment of said loan, the accused issued cheque dated 25.04.2016 drawn on Visveshvarayya Grameena Bank, Besagarahalli Branch for Rs.2,00,000/- towards repayment of the said loan. The complainant presented the said cheque for encashment on 25.04.2016 and it came to be dishonoured for the reason “insufficient funds” in the account of the accused. The complainant got issued legal notice dated 06.06.2016 calling upon the accused to pay cheque amount within 15 days. The notice has been served on the petitioner / accused. Inspite of service of notice, accused has not paid the cheque amount within 15 days. Therefore, the complainant initiated the - 4 - HC-KAR NC: 2025:KHC:26741 CRL.RP No. 1015 of 2022 proceedings against the petitioner/ accused for the offence punishable under Section 138 of the N.I.Act. 4. The complainant in order to prove his case has examined PW.1 and got marked Ex.P1 to P6. The statement of the accused has been recorded under Section 313 of Cr.P.C. The accused has not lead defence evidence. The learned Magistrate after hearing arguments on both sides and appreciating the evidence on record has convicted the petitioner/accused for the offence under Section 138 of the N.I.Act and sentenced him to pay fine of Rs.2,75,000/- in default, to undergo simple imprisonment for a period of six months. 5. The petitioner/accused challenged the said judgment before the Sessions Court in Crl.A.No.23/2021. The said appeal came to be dismissed on merits affirming the judgment of conviction passed by the trial Court. 6. Learned counsel for the petitioner would contend that the petitioner has taken up a defence that the cheque is issued to the complainant as a security for the chit - 5 - HC-KAR NC: 2025:KHC:26741 CRL.RP No. 1015 of 2022 transaction of his wife and it has been misused. Petitioner/accused is a Teacher having sufficient income and there was no necessity for him to borrow Rs.2,00,000/- from the complainant. The complainant has no capacity to lend Rs.2,00,000/-. The complainant is a money lender and he has filed several suits for recovery of money. It is further submitted that the petitioner has not been given sufficient opportunity to lead defence evidence. With this the counsel for petitioner prayed to allow the revision petition and acquit petitioner/accused. 7. Learned counsel for the respondent supported the reasons assigned by the trial Court and the appellate Court and prayed for dismissal of the revision petition. 8. Having heard the learned counsels this Court has perused the impugned judgments and trial Court and appellate Court records. 9. It is the specific case of the complainant that the petitioner/accused borrowed Rs.2,00,000/- as hand loan on 14.02.2016 and in order to make repayment of the - 6 - HC-KAR NC: 2025:KHC:26741 CRL.RP No. 1015 of 2022 same had issued cheque – Ex.P1 for Rs.2,00,000/-. The issuance of cheque and signature on it has been admitted by the petitioner/accused. As the cheque is admitted, the presumption has to be drawn under Section 139 of the N.I.Act that the cheque has been issued for discharge of debt. The said presumption is a rebuttable presumption. The standard of proof for rebutting the said presumption is that of preponderance of probability. 10. Inspite of service of legal notice, petitioner/accused has not chosen to send any reply stating his defence. Petitioner/accused has taken up defence in the cross-examination of PW.1. In the cross- examination of PW.1 suggestion has been put to him that the cheque is issued by the petitioner as a security to the chit transaction of wife of the complainant. The said suggestion has been denied by PW.1. Apart from the said suggestion there are no other materials brought on record to establish the said defence. The presumption drawn under Section 139 of N.I.Act remains unrebutted. The - 7 - HC-KAR NC: 2025:KHC:26741 CRL.RP No. 1015 of 2022 consequence of non-rebuttable of presumption drawn under Section 139 of N.I.Act has been considered by the Hon’ble Apex Court in the case of Kalamani tex and Another Vs. 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 - 8 - HC-KAR NC: 2025:KHC:26741 CRL.RP No. 1015 of 2022 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 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.” 11. 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 - 9 - HC-KAR NC: 2025:KHC:26741 CRL.RP No. 1015 of 2022 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.” 12. Learned counsel for the petitioner would contend that the petitioner has not been given sufficient opportunity to lead evidence. On perusal of the records of the trial Court it indicates that several opportunities were given to the petitioner/accused to lead defence evidence - 10 - HC-KAR NC: 2025:KHC:26741 CRL.RP No. 1015 of 2022 and he has not lead the defence evidence. When presumption under Section 139 of the N.I.Act remained unrebutted, there is no need for complainant proving his capacity to lend the amount and the same has been considered by the Hon’ble Apex Court in Ashok Singh Vs State of Uttar Pradesh and Anr (2025 INSC 427). 13. Considering all these aspects, there are no grounds for entertaining this revision petition. Hence, this revision petition is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DKB List No.: 1 Sl No.: 34