- 1 - HC-KAR NC: 2025:KHC:36690 CRL.P No. 11980 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM CRIMINAL PETITION NO. 11980 OF 2025 BETWEEN: 1. SRI. SUNIL .V S/O SRI VENKATESH AGED ABOUT 43 YEARS INSPECTOR OF CO-OPERATIVE SOCIETIES LAKSHMI NILAYA RING ROAD, NEAR OLD TELEPHONE EXCHANGE JAYANAGAR EXTENSION HASSAN - 573201. …PETITIONER (BY SRI. SATHEESHA .K.N, ADVOCATE) AND: 1. SRI. RAGHUNANDAN S/O H. SHIVAMURTHY AGED ABOUT 43 YEARS BINDUS SHOP OWNER 7TH CROSS, K.R.PURAM HASSAN - 573201. …RESPONDENT THIS CRL.P IS FILED U/S 482 CR.PC (FILED U/S 528 BNSS) PRAYING TO SET ASIDE THE ORDER DATED 23.06.2025 PASSED BY THE LEARNED II ADDL.DISTRICT AND SESSIONS JUDGE, HASSAN IN CRL.RP NO.165/2023 VIDE ANNEXURE-A AND ORDER DATED 15.11.2023 PASSED BY THE LEARNED ADDL.CIVIL JUDGE AND J.M.F.C IN C.C.NO.5304/2017 VIDE ANNEXURE-B THEREBY REJECTING THE APPLICATION FILED UNDER SEC.243(2) OF CR.PC R/W SEC.45 AND 73 OF THE Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36690 CRL.P No. 11980 of 2025 INDIAN EVIDENCE ACT FILED BY THE PETITIONER AND CONSEQUENTLY ALLOW THE SAID APPLICATION. THIS PETITION, COMING ON FOR FRESH MATTERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL ORDER This petition is filed by the accused assailing the concurrent orders passed by the Courts below who have declined to entertain the prayer sought by the petitioner in the application filed under Section 243(2) of Cr.P.C. read with Sections 45 and 75 of Indian Evidence Act to send the Ex.P1-cheque to the handwriting expert to ascertain the age of the signature and ink available on the cheque in question. 2. The respondent/complainant filed a private complaint under Section 200 of the Code of Criminal Procedure alleging commission of offences punishable under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (for short "N.I. Act"). The grievance is that a cheque issued by the present petitioner for a sum of - 3 - HC-KAR NC: 2025:KHC:36690 CRL.P No. 11980 of 2025 Rs.2,50,000/- was dishonoured on presentation. This led the complainant to issue a statutory notice under Section 138 of the N.I. Act, which was duly served on the petitioner. Alleging that, despite receipt of the said notice, the petitioner failed to make payment, the complainant instituted the present private complaint. 3. In support of the complaint, the respondent produced the cheque in question and adduced evidence. The petitioner, on the other hand, contended that the cheque was never issued to the complainant. According to the petitioner, the instrument was given to one Mahammed Ghouse in connection with a transaction that took place in 2015, and therefore the age of the ink was a crucial aspect to establish the antecedents as alleged by the complainant. The learned Magistrate rejected the petitioner’s application, and the revisional Court, after an elaborate consideration, confirmed the order. The revisional Court placed reliance on the principles laid down by the Hon’ble Supreme Court in Bir Singh v. Mukesh - 4 - HC-KAR NC: 2025:KHC:36690 CRL.P No. 11980 of 2025 Kumar, (2019) 4 SCC 197, observing that even a blank cheque leaf voluntarily signed and handed over towards payment would attract the presumption under Section 139 of the N.I. Act. Accordingly, the revision petition was dismissed. 4. After hearing the learned counsel for the petitioner, this Court queried whether the petitioner had issued any reply upon receipt of notice under Section 138(b) of the N.I. Act. Learned counsel submitted that he has no instructions in that regard and does not presently have a copy of any reply notice. 5. Once a statutory notice is issued under Section 138(b) of the N.I. Act, the drawer of the cheque has an opportunity to dispute or rebut the claim of the complainant. Be that as it may, the moment the execution of the cheque is either admitted or proved, a statutory presumption under Section 139 of the N.I. Act, comes into play. This presumption extends to the existence of a - 5 - HC-KAR NC: 2025:KHC:36690 CRL.P No. 11980 of 2025 legally enforceable debt or liability in respect of the cheque issued. In Bir Singh(supra), the Hon’ble Supreme Court held that even if a signed blank cheque is voluntarily handed over by the drawer, the payee is entitled to fill in the contents and present it for encashment, and such an instrument would attract the presumption under Section 139 of N.I. Act. It was further clarified that the burden lies on the accused to rebut this presumption by cogent evidence. 6. In the present case, learned counsel for the petitioner admits that the petitioner examined one Mahammed Ghouse, claiming that the cheque was issued in his favour in connection with a transaction of the year 2015, and not to the complainant. The defence set up by the accused is that there was no transaction with the complainant, and the cheque was issued only as a security in relation to the dealings with the said Mahammed Ghouse. Once rebuttal evidence is let in, it is for the learned Magistrate to assess its evidentiary value. The - 6 - HC-KAR NC: 2025:KHC:36690 CRL.P No. 11980 of 2025 Hon’ble Supreme Court in Bir Singh (supra), observed that the presumption under Section 139 is rebuttable and the standard of proof required to rebut the presumption, is of preponderance of probabilities, which can be established either by cross-examining the complainant or by leading independent evidence. The examination of Mahammed Ghouse by the petitioner will, therefore, have to be appreciated by the Trial Court in light of the settled principles. 7. The attempt of the petitioner to seek an expert opinion for determining the age of the ink on the cheque, at a stage when the matter is posted for arguments, appears to be only an endeavour to delay the proceedings. The Supreme Court in Kumar Exports v. Sharma Carpets [(2009) 2 SCC 513] has emphasized that while the presumption under Section 139 of N.I. Act, is rebuttable, the accused must do so by credible material, and procedural tactics to protract the trial cannot be entertained. Further, in Oriental Bank of Commerce v. - 7 - HC-KAR NC: 2025:KHC:36690 CRL.P No. 11980 of 2025 Prabodh Kumar Tiwari [(2022) 5 SCC 204], it has been reiterated that once the signature on the cheque is admitted, the contents can be filled by the holder, and the instrument remains valid unless the accused discharges the onus of proving the contrary. 8. Having regard to the above principles, this Court finds no infirmity in the concurrent findings of the learned Magistrate and the Revisional Court. The presumption under Section 139 of N.I. Act, operates in favour of the complainant, and the accused has already led rebuttal evidence, which is for the Trial Court to assess on merits. The present attempt to secure an expert’s opinion at the stage of final arguments is unwarranted. The petition is devoid of merits and, accordingly, stands dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE ALB List No.: 1 Sl No.: 62