- 1 - HC-KAR NC: 2026:KHC:30022 CRL.RP No. 1436 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO.1436 OF 2025 BETWEEN: ARUN H M S/O MANJUNATH AGED ABOUT 34 YEARS R/AT NANDI VILLAGE AND HOBLI CHICKABALLAPURA TALUK & DISTRICT-562 101 …PETITIONER (BY SRI. A N RADHAKRISHNA, ADVOCATE) AND: SRI PRAVEEN KUMAR M N S/O LATE MUNIRAJU AGED ABOUT 45 YEARS R/AT NANDI VILLAGE AND HOBLI CHICKABALLAPURA TALUK & DISTRICT-562 101 …RESPONDENT (BY SRI. MUHAMMAD SHAMIL, ADVOCATE FOR SRI AMEYA FADNIS, ADVOCATE) THIS CRL.RP IS FILED U/S. 438 AND 442 OF BNSS PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE LEARNED II ADDL. CIVIL JUDGE AND JMFC, CHIKKABALLAPURA, CONVICTING THE PETITIONER FOR OFFENCE P/U/S 138 OF N.I ACT IN CC NO.72/2021 DATED 07.02.2025 AND ETC. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:30022 CRL.RP No. 1436 of 2025 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER This revision petition is filed against the judgment of conviction and sentence dated 07.02.2025 passed in c.C.No.72/2021 by the Trial Court and also against the judgment of confirmation dated 14.08.2025 passed in Crl.A.No.24/2025 by the Appellate Court. 2. This matter is listed for admission. Heard the counsel appearing for the petitioner and also the counsel appearing for the respondent. 3. The factual matrix of case of complainant before the trial Court is that accused is known to him and that on 20.08.2019, he borrowed a sum of Rs.4,00,000/- from the complainant to meet his family necessities and also for the construction of a house. That when the complainant demanded the money, the accused issued a subject matter of cheque. When the said cheque was presented, the same was returned with an endorsement ‘funds insufficient’. The legal notice was - 3 - HC-KAR NC: 2026:KHC:30022 CRL.RP No. 1436 of 2025 issued on 28.12.2020. The said notice was returned back to the sender with a shara ‘party out of station’. That the accused neither arranged to repay the loan amount nor issued any reply to the legal notice of the complainant. Hence, the complaint was filed before the Trial Court. 4. The Trial Court taken cognizance and proceeded against the petitioner. The petitioner appeared before the Trial Court and denied the same. In order to prove the case of the complainant, examined himself as PW1 and got marked the documents at Ex.P1 to P5 i.e., Cheque; bank endorsement; legal notice; postal receipt and returned postal cover stating that party is out of town. PW1 was subjected to cross examination and accused not entered into the witness box. However, in 313 statement, stated that cheque was given to one Praveen Kumar while borrowing an amount of Rs.1,00,000/- and not borrowed the amount from the complainant. The Trial Court has taken note of the said defence also and comes to the conclusion that once cheque is admitted, there is a presumption under Section 118 of N.I. Act and also there is no any rebuttal evidence by leading any defence - 4 - HC-KAR NC: 2026:KHC:30022 CRL.RP No. 1436 of 2025 evidence and in the cross examination also nothing is elicited from the mouth of PW1 and comes to a conclusion that accused has not made out a preponderance of probabilities. Hence, convicted and sentenced the accused directing to pay an amount of Rs.4,55,000/-. 5. Being aggrieved by the judgment of the Trial Court, an appeal was preferred before the Appellate Court. While challenging the judgment of the Trial Court, the defence was taken that cheque was stolen and the Appellate Court formulated the point on that defence. The Appellate Court taken note of the answer elicited from the mouth of PW1 and also in the cross-examination and in paragraph 18, discussed with regard to admitting the amount of Rs.1,00,000/- was paid and in order to substantiate that not an amount of Rs.4,00,000/- nothing is elicited and the ground that respondent has stolen the disputed Cheque and written the name and amount on the instrument but to that effect also the appellate court answered the same when contra ground was taken in the appeal. Having considered both oral and documentary evidence placed on record and re-appreciating the - 5 - HC-KAR NC: 2026:KHC:30022 CRL.RP No. 1436 of 2025 evidence available on record, confirmed the judgment of the Trial Court. 6. Being aggrieved by the concurrent finding of both the Courts, the present revision petition is filed before this Court. 7. The counsel appearing for the revision petitioner in his argument vehemently contends that firstly, the complainant has to prove his case. Then, the burden shifts on the accused to rebut the same under Section 139 of N.I. Act. The counsel would submit that no notice was served to the accused and not complied Section 138(b) of the proviso. Under the circumstances, there cannot be any conviction. The counsel also submits that the trial Court not appreciated the same and so also the appellate court. Both the Courts have committed an error. Thus, the order suffers from its legality and correctness. 8. Per contra, the counsel appearing to the respondent would vehemently contend that when notice was issued to the petitioner, the same was returned with an endorsement as ‘he is out of station’ and also during the course of cross - 6 - HC-KAR NC: 2026:KHC:30022 CRL.RP No. 1436 of 2025 examination not taken any defence to PW1 that no notice was served. Apart from that the counsel would also contend that general clause 27 is very clear that when the address is not disputed the court has to take note of the presumption. The counsel brought to notice of this court the 313 statement and contend that though he has not entered into the witness box, categorically admitted receipt of an amount of Rs.1,00,000/- and he did not turn up and except the said defence no other defence was taken. However, in the appeal taken the false defence that cheque was stolen and to that effect also the appellate court raised the point for consideration and considering the contra defence, dismissed the appeal. Hence, the order does not suffer from any legality and correctness. 9. Having heard the learned counsel appearing for the respective parties and also considering the material on record, it discloses that the revision petitioner not disputed the subject matter of cheque. However, in the cross-examination, only general questions are put to PW1. However, during 313 statement, he made the statement that he has borrowed an amount of Rs.1,00,000/- and also admits his signature in the - 7 - HC-KAR NC: 2026:KHC:30022 CRL.RP No. 1436 of 2025 cheque and he did not enter into the witness box rebutting the same, except stating that he borrowed an amount of Rs.1,00,000/-. What made him to give a cheque for an amount of Rs.4,00,000/- is not explained. However, he says that when they demanded more money as against the advancing the amount of Rs.4,00,000/-, only he had assured that he would pay the amount of Rs.1,00,000/- and thereafter he came to know about filing of this case. The defence which was taken could have been substantiated before the trial Court entering into the witness box and also by effective cross-examination of PW1. Instead of that only he made the statement in 313 and the same is not substantiated. 10. The main first limb of argument is that notice was issued, but the same was not served and the address mentioned in the notice was not denied and disputed by the accused and to that effect also, there is no cross examination that he is not residing in the said address. As rightly pointed out by the counsel appearing for the respondent that under general clause Act 1897, PW1 was cross-examined but not disputed that last known address. Thus, it is very clear that - 8 - HC-KAR NC: 2026:KHC:30022 CRL.RP No. 1436 of 2025 when the same is not disputed and the address is correct, the very contention of the counsel appearing for the petitioner cannot be accepted and this Court considered the presumption under the General Clauses Act and coordinate Bench of this Court in the case of C NIRANJAN YADAV vs D RAVI KUMAR reported in 2024 KHC 22939 taken note of the case of FAKIRAPPA vs SHIDDALINGAPPA AND ANOTHER reported in ILR 2002 KAR 181 wherein discussed regarding the settled law on this aspect. With regard to the issuance of the cheque is concerned, no dispute and there is no any preponderance of probabilities. In one breath, he says that he availed an amount of Rs.1,00,000/- and in another breath, the ground was taken in the appeal that cheque was stolen. The very defence is contradictory and also the same is not rebutted. When the same was not rebutted within the provisions of Section 139 of N.I. Act and when the presumption comes to the aid of the complainant and the same has to be rebutted and the same is not rebutted and the very contention of the counsel appearing for the revision petitioner that unless proviso under 138(b) of N.I. Act is not proved, there cannot be any conviction cannot be accepted in view of the reasons assigned that the very - 9 - HC-KAR NC: 2026:KHC:30022 CRL.RP No. 1436 of 2025 address mentioned in the notice was not denied and disputed. It is not the case of the petitioner that he was not residing in the said address. Hence, there is a force in the contention of the counsel appearing to the respondent that under general Clause Act 1897, there is presumption and the same is proved. Hence, I do not find any ground to admit the revision petition and scope of the revision is very limited and I do not find any infirmity in the order of both the courts. Hence, the revision petition is dismissed. Sd/- (H.P.SANDESH) JUDGE SN