- 1 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 111 OF 2023 BETWEEN: SURESH SHARMA S/O GOVINDA NAYAK AGED ABOUT 46 YEARS RESIDING AT PANJIKALLU HOUSE KEPU VILLAGE, BANTWAL TALUK D.K. - 574 211. …PETITIONER (BY SMT.POOJA KATTIMANI, ADVOCATE FOR SRI. DINESHKUMAR RAO K., ADVOCATE) AND: SMT JYOTHI W/O SANJEEVA NAYAK AGED ABOUT 45 YEARS RESIDING AT KODAGE HOUSE IRA VILLAGE AND POST BANTWAL TALUK D.K. - 574 211. …RESPONDENT (BY SRI. JEEVAN K., ADVOCATE) THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO SET ASIDE THE Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 JUDGMENT AND ORDER DATED 21.10.2022 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU SITTING AT PUTTUR, D.K. IN CRL.A. NO. 5021/2021 CONFIRMING THE JUDGMENT AND ORDER DATED 05.03.2021 IN C.C.NO.228/2017 PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., PUTTUR, D.K. CONVICTING THE PETITIONER FOR THE OFFENCE P/U/S 138 OF N.I. AND ACQUIT THE PETITIONER OF CHARGE LEVELED AGAINST HIM, ETC., THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL ORDER Heard Smt.Pooja Kattimani, learned counsel on behalf of Sri.Dineshkumar Rao.K., learned counsel appearing for the revision petitioner and Sri.Jeevan.K., learned counsel appearing for the respondent. 2. Revision Petitioner is the accused who suffered an order of conviction in C.C.No.228 of 2017 confirmed in Criminal Appeal No.5021 of 2021 for the offence punishable under Section 138 of the Negotiable - 3 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 Instruments Act. Accused has been sentenced as under before the Trial Magistrate: "Acting u/s 255(2) Cr.P.C. accused in convicted for the offence punishable u/s 138 of the Negotiable Instruments Act. Accused is sentenced with fine of Rs.6,10,000/- (Rupees Six lakh ten thousand rupees only), in default of payment of fine he shall undergo Simple Imprisonment for a term of 3 months for the said offence. Out of the fine amount 6,05,000/- is to be given to the complainant as cheque amount, cost an compensation in terms of section 357(1) of Cr.P.C. The rest of the amount is remitted to state towards the cost of the court". 3. Facts of the case, which are almost necessary for disposal of the present petition, are as under:
In respect of a dishonored cheque, respondent/ complainant filed a private complaint under Section 200 of Cr.P.C., alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act, contending that the accused has availed a personal loan in a sum of Rs.1,56,000/-, Rs.68,000/-, Rs.75,000/- and - 4 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 Rs.80,000/- from the complainant on different occasions, in total, a sum of Rs.3,79,000/- in the year 2012. The complainant had such money to be lent to the accused by way of compensation obtained in M.V.C.No.367 of 2002, on the file of M.A.C.T., Puttur, in connection with the motor accident met by her deceased husband Sanjeeva Nayak.
Accused promised to repay the same within three years along with interest. However, accused failed to pay the amount even after three years and ultimately, issued a cheque bearing No.095825 in a sum of Rs.6,00,000/- drawn on Syndicate Bank, Vittal Branch dated 16.12.2016.
The said cheque on presentation came to be dishonored with an endorsement, "Funds insufficient".
A legal notice was caused demanding the payment of the amount covered under the cheque from the - 5 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 accused. An untenable reply came to be issued by the accused denying the transaction and mentioning that the cheque leaf, which is subject matter of the notice was lost by the accused long back and it has been misused.
The complainant, thereafter sought for action against the accused. 4. The learned Trial Magistrate, after completing the necessary formalities, summoned the accused and as the accused pleaded 'not guilty', trial was held. 5. In order to prove the case of the complainant, she got examined herself as PW-1 and placed on record nine documentary evidence, which were exhibited and marked as ExsP1 to P9, comprising of dishonored cheque, bank endorsement, legal notice, reply notice, award copy in M.V.C.No.367 of 2002, statement of the account extract maintained by the complainant. - 6 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 6. As against the material evidence placed on record by the complainant, accused got examined himself as DW-1 and Station House Officer of Puttur and Bank Official of Syndicate Bank, Puttur as DWs-2 and 3. On behalf of the accused, letter issued to Syndicate Bank, Puttur intimating the loss of cheque is marked as Ex.D1. Complaint given to Puttur Police Station is marked as Ex.D2 and Bank pass-book as Ex.D3. 7. On conclusion of recording of evidence, the learned Trial Magistrate heard the arguments of the parties and on cumulative consideration of the oral and documentary evidence placed on record, convicted the accused inter-alia, holding in paragraph Nos.27 to 32 as under: 27. As I have already stated above, if the complainant really misused the said cheque and got filed this false case against him, then what prevented accused to take appropriate action against complainant for the alleged misuse of the cheque is not explained. Therefore, in the absence of appropriate action the multiple defences taken by the accused has no legs to stand. As such, this court can safely come to conclusion, that towards the repayment of legally enforceable debt, - 7 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 the accused has issued Ex.P.1 cheque to the complainant. 28. It is significant note that, the complainant as per ExP.8 and 9 proved that, she has lent Rs.379,000/- to the accused on several occasions in the year 2012 and 2013. Further, in her complaint and as well as in her chief examination affidavit she deposed that, accused agreed to pay the said amount along with interest within 3 years. Even after the lapse of 3 years he had not repaid the said amount. In the year 2016 on demand he has issued Ex.P.1 cheque for 6,00,000/-. The accused in the cross examination or in his evidence not disputed the said amount or interest rate contending that, the amount claimed by the complainant is exorbitant and accused has never agreed to pay any interest. As such, in my view in the absence of specific denial she is entitled for said amount of Rs.6,00,000/- from the accused. 29. The accused counsel during the argument argued that, the signature appearing on Ex.P.1 belongs to accused, but the other contents appearing on ExP.1 does not belongs to the accused and same are not in the hand writing of the accused. The Pw.1 during her cross examination deposed that, said the contents appearing were in the hand writings of the accused. When, the accused specifically denied the contents on Ex.P.1, it is duty of the complainant to send said disputed writings appearing on EX.P.1 for examination to the hand writing expert to compare the same with the admitted writings of the accused. But, the same was not done by the complainant. As such, it is a prayed for acquittal of the accused. It is significant to note that, accused contended that, he lost signed blank cheques. But, this court has already opined that, that accused has issued said cheque to the complainant towards the payment of liability. As such, the above contention taken by the accused holds not good. Because, what is the effect of issuing a blank cheques is to considered at this stage. Where the cheques are signed leaving blank all other particulars and handed over to the payee authorizing him to fill up the blanks as agreed upon, it is valid in law. Therefore, when such a cheque is dishonoured, Section 138 applies. "ILR 2001 Kar 4127 in the case of - 8 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 S.R.Muralidhar Vs G.Y.Ashok. In this regard Section 20 of the Act is very clear. Here, the stand of the accused is not maintainable. Therefore, in view of above observations, this court can safely come to the conclusion that, the accused has issued Ex.P.1 cheque to the complainant towards the legally enforceable debt. 30. It is significant to note that, under criminal jurisprudence prosecution is require to establish the guilt of the accused beyond reasonable doubts. However, a proceeding under section 138 of N.I. Act is quasi criminal in nature. In these proceedings proof beyond reasonable doubt is subject to presumptions envisaged under section 118, 139 and 146 of N.I. Act. An offence under section 138 of N.I. Act is committed not on dishonour of the cheque but on the failure of the drawer of the cheque to make payment within 15 days from the receipt of the notice of dishonour. An essential ingredient of section 138 of N.I. Act is that the cheque in question must have been issued towards a legally enforceable debt or liability. 31. In the present case the complainant has proved that the accused is due to him and the said debt is legally recoverable debt. Section 118 and 139 of an act envisages certain presumptions. Under section 118 a presumptions shall be raised regarding consideration, date, transfer, endorsement and the holder in case of negotiable instruments. Even under section 139 a rebuttable presumptions shall be raised that the cheque in question was issued for legally enforceable debt. These presumptions are mandatory presumptions that are require to be raised in a case of N.I. Act. These presumptions are not conclusive presumptions, but rebuttable. This position of law has been highlighted by the Hon'ble Supreme court and the Hon'ble High court of Karnataka in various decisions. Therefore, it is for the accused to show that there was no debt or liability or that debt or liability was not legally enforceable. The entire burden of rebutting the case of the complainant lies on the accused and the accused has to rebut the burden not by formal denial or suggestion but by leading cogent evidence. 32. Under section 139, court has to presume that, unless contrary was proved, the holder of the cheque - 9 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 received the cheque for discharge, in hole or in part of a debt or liability. In a complaint filed for the offence under section 138 of Act, court has to presume that the cheque had been issued for an existing debt or liability. The said presumption is rebuttable. The same is not done by the accused since the accused has not discharge the burden cost on him, Ex.P.1 having been issued by him and its return on the ground of ‘Funds Insufficient’, which was followed by a demand to pay the cheque amount, the complaint having been filed with in a period of limitation and the material documents having been exhibited during the course of trial by the payee of the cheque, during whose cross examination nothing material has been elicited to doubt his testimony, the ingredients of the offence under section 138 has been met out. The statutory presumption under section 139 has not been discharged by the accused. The reverse burden is on the accused which he has to discharge in a manner which is believable as well as acceptable to the court. 8. Being aggrieved by the same, accused filed an appeal before the District Court in Criminal Appeal No. 5021 of 2021. 9. The learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties in detail and on re-appreciation of the material evidence on record, dismissed the appeal, inter-alia holding in paragraph Nos.17 to 21 as under: - 10 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 "17. Further defence of the accused herein that the complainant have no such a financial capacity and economical fitness to lend loan of Rs.6,00,000/-, as such the Counsel for the accused vehemently argued case registered against the accused may be dismissed. On the contrary, learned Counsel for the respondent vehemently argued, the complainant not only in his complaint, or chief examination, the complainant have answered to the all questions at his cross examination also that the accused is the relative of the Complainant, she lend the loan to the accused at four instances. She issued the loan to the accused in the year 2012 and 2013, after she got withdrawn from her Bank account as the same amount she got obtained from the Motor Accident Claim case. Therefore. the Counsel for the Respondent/Complainant argued the case in support of the observation made by the learned trial judge. To ascertain the rivality between the Complainant and the accused, there is no dispute between the parties to the proceeding with respect to relationship of the parties. Now the case on hand though the accused made suggestion to PW.1 that she has no financial capacity to lend the loan, the accused failed to elicited no other probable surrounding circumstances to uphold the defence of the accused. On the contrary the Complainant at his complaint, chief examination and during the cross examination also consistently she deposed that, she lend the loan to the accused in four installments. To disbelieve such an fact of the Complainant, nothing of the probable defence of the accused have elicited. As such that I am of the view that there is no substantial force in the argument of learned Counsel for the appellant. 18. The evidence of the complainant/respondent along with documentary evidence clearly and categorically establish all the ingredients of Section 138 of N.L. Act. Moreover, the accused though denied the issuance of exchequer in question in favour of the complainant. The statutory presumption under section 139 N.L. Act remained as un-rebutted. Under this circumstance, the learned trial court drawn the presumption in favour of the complainant u/s 139 of N.I. Act that the accused had issued the cheque in question - 11 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 to the complainant towards discharge of legally enforceable debt or liability. 19. In view of the evidence referred above, the legal presumption under Section 139 of N.I. Act has to be raised. Raising of presumption under Section 139 of N.I. Act is permissible even as per the law laid down by the Hon'ble Supreme Court in the case of Rangappa V/s. Mohan in the decision reported in (2010) 11 SCC 441. Such presumption includes the existence of legally enforceable debt or liability. Therefore, presumption raised to the cheque by the trial court cannot be interfered with. 20. On appreciation of entire evidence, this Court is of the opinion that the accused has failed to prove the fact that he has not issued cheque for discharge of legally enforceable debt. On the contrary, the complainant has proved that the accused has issued cheque/Ex.P1 for a sum of Rs.6,00,000/-towards discharge of legally enforceable debt and on presentation of the cheque, it was dishonored for the reasons Funds Insufficient". Even after service of legal notice, the accused has not paid the cheques amount. Hence, in the considered view of this Court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act. Such evidence is sufficient to punish the accused for the offence under Section 138 of N.1. Act. 21. Even in-spite of go through the records, there is no materials available on records to substantiate the neither of the ground which are urging by the appellant in his appeal memo and the trial court rightly appreciated the facts and law upon the case on hand, as the trial court appreciated the facts and law upon the case, I have no hesitation to agree with the observation made by the learned trial judge. In view of such an evidence on record, it is of my opinion that appellant failed to establish any illegality or error or infirmity in the judgment and sentence passed by the Learned Trial Court as such, I hold that the trial court has not committed any error illegality or infirmity in convicting the accused. Accordingly, the Appeal has to be rejected. - 12 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 Thus, I answer to the above point No. 1 in the Affirmative and point No.2 in the Negative and proceed to pass the following: :ORDER: The Criminal Appeal filed under Section 374(3) of Cr.P.C., is hereby dismissed. Judgment and sentence dated 05/03/2021 passed by the Court of Principal Civil Judge and J.M.F.C., at Puttur, in District D.K. in CC No.228/2017 is hereby confirmed. Send the copy of the Judgment along with the records to the Trial court. 10. Being further aggrieved by the same, accused is before this Court. 11. Smt.Pooja Kattimani, learned counsel for the petitioner reiterating the grounds urged in the revision petition, vehemently contended that in the case on hand, the cheque which has been marked at Ex.P1 has been lost by the accused in the year 2010 and there is a complaint lodged to the police as well as intimation given to the Banker of the accused about the loss of cheque. The same has been misused by the complainant after six years by concocting a story that accused has borrowed the money - 13 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 from the complainant who is a stranger to the accused and said material aspect is not considered by the Trial Magistrate as well as the learned Judge in the First Appellate Court in proper perspective and wrongly convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, purportedly by raising the presumption in favour of the complaint under Section 139 of the Negotiable Instruments Act, resulting in grave miscarriage of justice and thus, sought for allowing the revision of petition. 12. Per contra, Sri.K.Jeevan, learned counsel appearing for the respondent/complainant supports the impugned judgment. 13. Having heard the arguments of both sides, this Court perused the material on record meticulously. On such perusal of the material on record, it is not in dispute that the cheque in question marked at Ex.P1 did belong to the accused and signature found therein is that of the accused. - 14 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 14. The complainant has stated before the Trial Magistrate on oath that there was a loan transaction and towards the repayment of the loan, cheque in question came to be issued in a sum of Rs.6,00,000/- as against the borrowing of the amount three years earlier on different occasions. 15. Further, complainant has stated that her husband died in a road traffic accident and she received the compensation amount in an accidental climb before the Motor Accidents Claims Tribunal, Puttur and said money has been lent to the accused. 16. Thus, the complainant has discharged the initial burden to raise the presumption as is contemplated under Section 139 of the Negotiable Instruments Act. 17. No doubt, such a presumption is, a rebuttable presumption. In order to rebut the presumption available to the complainant, accused has taken a definite stand that he lost the cheque-Ex.P1 in the year 2010. - 15 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 18. To substantiate the said aspect of the matter, apart from the oral testimony, he has examined the Station House Officer, who is a Head Constable from Puttur Police Station as DW-2 and Bank Official from the Syndicate Bank as DW-3. Ex.D1 is the intimation given to the Bank and Ex.D2 is the complaint lodged with the Puttur Police Station. Ex.D3 is the Bank Pass-book that has been possessed by the accused. 19. The Station House Officer, who is examined as DW-2 categorically deposed before the Court that, if the complainant averments makes out a cognizable offence, FIR would be registered and if it is a non-cognizable offence, intimation would be furnished to the complainant with a registration number. In the cross-examination of DW-2, he categorically admits that in Ex.D2, there is no mention about the registration of the FIR or entry into the register. 20. Further, who is the person who has acknowledged Ex.D2 by putting the signature is not - 16 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 forthcoming. The intimation given by the accused to his Bank is marked at Ex.D1 could not also improve the case of the accused inasmuch as no 'stop payment' instructions were given in respect of Ex.P1. 21. Moreover, when the accused came to know that it is the complainant who has misused the lost cheque, when he received the legal notice, he contacted his Advocate and got issued the reply. 22. Pertinently, when the accused has come to know that it is the complainant who has misused the cheque, which has been lost in the year 2010, neither the police were intimated about the issuance of the legal notice by the complainant nor any separate complaint has been lodged by the accused, as against the misuse of the lost cheque by the complainant. 23. It is to be noted that no normal prudent person would keep quiet that if a cheque in a sum of Rs.6,00,000/- is misused, which was lost by a person in - 17 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 the year 2010 and when he came to know about the misuse in the year 2016, by filling up the amount in a sum of Rs.6,00,000/-. 24. Further, assuming that the theory put forward by the accused that the lost cheque has been misused by the complainant, it is highly incomprehensible that how the complainant who is a lady would come to know about the owner of the cheque, his details like address, account number etc., for issue of legal notice. 25. Taking note of these aspects of the matter, the theory that Ex.P1 was lost and therefore, there is a misuse of the cheque and it did not carry any legally recoverable debt cannot be countenanced in law for want of sufficient proof and therefore, the presumption available to the complainant stood un-rebutted. 26. Accordingly, the learned Trial Magistrate and the learned Judge of the First Appellate Court were justified in recording the order of conviction for the offence - 18 - HC-KAR NC: 2026:KHC:15831 CRL.RP No. 111 of 2023 punishable under Section 138 of the Negotiable Instruments Act. 27. Hence, this Court does not find any valid grounds to admit the revision petition for further consideration. Accordingly, the following: ORDER Revision Petition is dismissed. Sd/-S (V SRISHANANDA) JUDGE DH List No.: 1 Sl No.: 35