- 1 - HC-KAR NC: 2025:KHC:27552 CRL.RP No. 424 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 424 OF 2024 BETWEEN: MR. PRAVEEN KUMAR S/O CHANDRARAJ AGED ABOUT 50 YEARS SANIDHYA MILK PARLOUR AND GENERAL STORE, KADRI KAMBLA MANGALURU, D.K. DISTRICT - 575 004. …PETITIONER (BY SRI RAJASHEKAR S, ADVOCATE) AND: MR. ASHOK KUMAR S/O LATE NARAYANA POOJARY AGED ABOUT 51 YEARS R/AT: UMIKHAN MAIDAN ALAPE VILLAGE, KULSHEKAR POST MANGALURU D .K DISTRICT - 575 005. …RESPONDENT (BY SMT. POOJA KATTIMANI,FOR SRI DINESHKUMAR RAO K, ADVOCATES) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED 02.03.2024 PASSED IN CRL.A.No.87/2023, ON THE FILE OF III ADDL. DISTRICT AND SESSIONS JUDGE AT D.K., MANGALURU DISMISSING THE APPEAL FILED BY THE PETITIONER AND CONFIRMING THE JUDGMENT AND CONVICTION AND ORDER OF SENTENCE DATED 24.03.2023 PASSED IN C.C.No.2404/2019, ON Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27552 CRL.RP No. 424 of 2024 THE FILE OF THE JMFC IV COURT AND CONCURRENT CHARGE OF JMFC (IX COURT) MANGALURU, FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT BY ALLOWING THE ABOVE REVISION PETITION AND THEREBY DISCHARGE THE ACCUSED / PETITIONER HEREIN FROM THE ALLEGED OFFENCE. THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER This Criminal Revision Petition is directed against the judgment dated 02.03.2024 passed in Crl.A.No.87/2023 by the III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru wherein judgment of conviction dated 24.03.2023 passed in C.C.No.2404/2019 by the JMFC IX Court, Dakshina Kannada, Mangaluru convicting the petitioner –accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I Act” for brevity) and sentencing him to pay fine of Rs.1,52,000/- (rupees One Lakh Fifty Two Thousand only) and in default to undergo simple imprisonment for a period of three months has been affirmed. - 3 - HC-KAR NC: 2025:KHC:27552 CRL.RP No. 424 of 2024 2. Heard 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 had borrowed a sum of Rs.1,50,000/- (rupees One Lakh Fifty Thousand only) from the respondent –complainant during the month of September -2019 for a period of 15 days. In order to repay the said amount borrowed, the petitioner – accused has issued a cheque bearing No.052248 for Rs.1,50,000/- dated 18.09.2019 infavor of the respondent – complainant. The complainant presented the said cheque for encashment and it came to be dishonoured for a reason “Exceeds Arrangement” under bank memo dated 20.09.2019. The complainant got issued legal notice dated 03.10.2019 calling upon the petitioner –accused to pay cheque amount within 15 days and it is served on the petitioner –accused on 09.10.2019. Inspite of service of notice, the petitioner –accused has not paid amount within 15 days. Therefore, the respondent –complainant has - 4 - HC-KAR NC: 2025:KHC:27552 CRL.RP No. 424 of 2024 initiated proceedings against the petitioner –accused for offence punishable under Section 138 of the N.I Act. 4. The respondent -complainant has examined himself as P.W.1 and got marked documents as Ex.P1 to P5. The statement of the accused has been recorded under Section 313 of Cr.P.C. The petitioner –accused has been examined himself as D.W.1 and not marked any documents. Learned Magistrate after hearing arguments on both side and appreciating evidence on record has convicted the petitioner –accused for the offence punishable under Section 138 of the N.I Act and sentenced to pay fine of Rs.1,52,000/- (rupees One Lakh Fifty Two Thousand only) and in default to undergo simple imprisonment for a period of three months. The said judgment of conviction has been challenged by the petitioner -accused before the Sessions Court in Crl.A.No.87/2023. The said appeal came to be dismissed on merits affirming the judgment of conviction and order on sentence passed by the trial Court. - 5 - HC-KAR NC: 2025:KHC:27552 CRL.RP No. 424 of 2024 5. Learned counsel for the petitioner would contend that the petitioner has taken up the defence that he has given the cheque to one Janardhan Arkula as security for loan obtained from him and that has been misused by this complainant. P.W.1 has admitted the suggestion that he know Janardhan Arkula. D.W.1 has also stated in his evidence regarding his defence. Without considering said aspects, learned Magistrate based on the presumption drawn under Section 139 of the N.I Act has convicted the petitioner –accused by impugned judgment and Appellate Court has erred in affirming the said judgment. With these, he prays to allow the Criminal Revision Petition. 6. Learned counsel for the respondent has supported reasons assigned by the trial Court and Appellate Court and prays to dismiss the Criminal Revision Petition. 7. Having heard learned counsels, this Court has perused impugned judgments, trial Court records and Appellate Court records. - 6 - HC-KAR NC: 2025:KHC:27552 CRL.RP No. 424 of 2024 8. It is specific case of the respondent –complainant that the petitioner –accused had borrowed a sum of Rs.1,50,000/- (rupees One Lakh Fifty Thousand only) and in order to repay the amount borrowed, he has issued a cheque –Ex.P1 for Rs.1,50,000/- (rupees One Lakh Fifty Thousand only) dated 18.09.2019. The petitioner –accused has admitted his signature on cheque –Ex.P1. As signature on Ex.P1 –Cheque is admitted, the presumption has to be drawn under Section 139 of the N.I Act that the cheque is issued for discharge of debt. The said presumption is rebuttable presumption. The standard of proof for rebutting the said presumption is that of preponderance of probability. 9. The petitioner –accused even though suggested in cross examination of P.W.1 that he has got issued reply to the legal notice has not produced copy of the same in his evidence. D.W.1 has not stated regarding he got issuing legal notice in his chief examination. Therefore, the petitioner –accused has not taken up his defence at initial stage when he received legal notice. - 7 - HC-KAR NC: 2025:KHC:27552 CRL.RP No. 424 of 2024 10. The petitioner –accused has taken up defence in the cross examination of P.W.1. The defence of the petitioner –accused is that he has borrowed loan from one Janardhan Arkula in the year 2016 and he has issued cheque as security for said loan and same has been misused by the complainant. With regard to the said defence, suggestions were put to P.W.1 and P.W.1 has denied the said suggestions. P.W.1 has only admitted that he knows Janardhan Arkula. The accused who has been examined as D.W.1 has stated his defence in his chief examination. The said defence has been denied by the complainant in the cross examination of D.W.1. The accused has admitted that he has not filed any complaint against said Janardhan Arkula for misusing the cheque and there are no reasons for him for not filing the complaint against said Janardhan Arkula. Considering the same, the defence of the accused has not been established. The accused has not rebutted the presumption drawn under Section 139 of the N.I Act. The consequences of non rebuttable of the presumption drawn - 8 - HC-KAR NC: 2025:KHC:27552 CRL.RP No. 424 of 2024 under Section 139 of the N.I Act has been considered by the Hon’ble Apex Court in the case Rajesh Jain Vs. Ajay Singh1 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 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.” 1 reported in AIR Online 2023 SC 807 - 9 - HC-KAR NC: 2025:KHC:27552 CRL.RP No. 424 of 2024 11. Considering above aspects, there are no grounds made out to entertain this Criminal Revision Petition. Hence, this Criminal Revision Petition is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DSP List No.: 1 Sl No.: 35