- 1 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO.1162 OF 2025 (397(Cr.PC) / 438(BNSS) BETWEEN: UTTHAMAN P K S/O KARNAN, AGED ABOUT 57 YEARS, R/AT NEW PARACKAL HOUSE, LAKE SIDE AVENUE, 1ST MAIN, SHETTYHALLI, BENGALURU-560 015 AND ALSO AT R/AT PARACKAL HOUSE MANTHURURUTHY POST CHANGANACHERRY KOTTAYAM - 686542 …PETITIONER (BY SRI. SEENAPPA V, ADVOCATE) AND: KURIAKOSE N V S/O ALIYAS, AGED ABOUT 55 YEARS, R/AT NO.243, 3RD CROSS, L G LAKE VIEW, BILISHIVALE, KOTHANNUR, BENGALURU-560 077 …RESPONDENT (BY SRI JAGAN MOHAN M T, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT, CONVICTION AND Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 SENTENCE PASSED BY THE LEARNED LXXIV ADDL. CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU (CCH- 75) IN CRL.A.NO.25235/2024 DATED 02.06.2025 AND THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE COURT OF THE XXXIV ADDL. CHIEF METROPOLITAN MAGISTRATE, MAYO HALL UNIT, BENGALURU (ACMM-34) IN C.C.NO.59000/2018 DATED 05.06.2024 BY ALLOWING THE ABOVE CRIMINAL REVISION PETITION AND PLEASED TO ACQUIT THE PETITIONER IN THE ABOVE CASE. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL ORDER Heard Sri Seenappa V, learned counsel for the revision petitioner and Sri Jagan Mohan M.T., learned counsel for the respondent. 2. Revision Petitioner is the accused who suffered an order of conviction for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, in C.C No.59000/2018 dated 05.06.2024 on the file of the XXXIV Addl. Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru (ACMM-34) confirmed in Criminal Appeal No.25235/2024 dated 02.06.2025 on the file of the LXXIV Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru, (CCH-75). - 3 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 3. Facts in the nutshell, which are utmost necessary for disposal of the present revision petition are as under: 3.1 A private complaint came to be filed under Section 200 of the Code of Criminal Procedure alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, by contending that complainant and accused are friends for several years and in such friendship, accused approached the complainant for financial assistance for commencing the chit business on multiple occasions. 3.2 The details of the investment made by the complainant are as under: (a) On 25.03.2015 for a chit of Rs.25 lakhs and every month the chit amount was Rs.1,00,000/- and complainant has paid 20 months chit amount, as such complainant has paid a sum of Rs.20 lakhs. (b) On 25.12.2015 for a chit of Rs.30 lakhs and every month the chit amount was Rs.1 lakh and complainant has paid 11 months chit amount, as such complainant has paid a sum of Rs.11 lakhs. (a) On 30.05.2016 for a chit of Rs.30 lakhs and every month the chit amount was Rs.1 lakh and complainant has paid 6 months chit amount, as such complainant has paid a sum of Rs.6 lakhs. - 4 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 4. However, the accused failed to repay the amount and therefore, complainant demanded the payment of the money. Towards the repayment, accused issued cheque bearing No.221919 dated 29.11.2017 for Rs.14,00,000/- drawn on Federal Bank, Jalahalli Branch, Bengaluru. Said amount was only part amount out of Rs.32,00,000/-. 5. Said cheque on presentation came to be dishonored with an endorsement, ‘kindly contact drawer/drawee bank’ and to present the cheque again on 29.11.2017. Again the cheque was re-presented at the instructions of the accused. But again it got dishonored with the same endorsement on 07.12.2017 and 02.12.2017 respectively. 6. A legal notice was issued calling upon the accused to make good the amount covered under the cheque which was sent by Registered Post Acknowledgment Due on 05.01.2018. There was no compliance to the callings of notice and therefore, action was sought for by the complainant against the accused. - 5 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 7. Learned Trial Magistrate after completing the necessary formalities, recorded the plea of the accused who pleaded not guilty. Therefore, trial was held. 8. In order to prove his case, complainant got examined himself as PW1 and a witness by name Sri Benoy Kuruvilla P.K. as PW-2. Complaint relied on twelve documents which were exhibited and marked as Exhibits P-1 to P-12 comprising of dishonored cheque, bank endorsements, office copy of the legal notices, postal receipt and acknowledgments, unserved postal covers and reply notice. 9. As against the material evidence placed on record, accused got examined himself as DW-1 and placed on record eight documents which were exhibited and marked as Exhibits D-1 to D-8 which are the bank statements, certified copy of the order sheet in PCR No.4220/2021, certified copy of the undertaking affidavit, certified copy of the sworn statement in PCR No.13343/2015. 10. Learned Trial Magistrate after conclusion of the recording of evidence, heard the arguments of the parties, by the - 6 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 considered judgment dated 05.06.2024 convicted the accused, inter alia holding in paragraph Nos.27 to 31 as under: “27. On considering the oral and documentary evidence of both side, the defence taken by the Accused in the cross- examination as well as in his examination in chief that, he borrowed loan from Mr.Binoy Kuruvilla and at the time of loan of Mr.Binoy Kuruvilla collected 2 Cheques for security in which one Cheque was misused by this Complainant as Mr.Binoy Kuruvilla is close relative and filed false complaint against him, On the other hand, the Complainant taken contention that Accused was taken huge amount for his chit business and return of partial amount, he issued Ex.P1 Cheque to him. The Accused has admitted that Cheque belongs to him but, he denied his signature on the Cheque. Further, in the cross- examination he stated that, he issued one signed and another without signed Cheque to Mr. Binoy Kuruvilla. But he has not explained why he issued without signed Cheque to him. Further, on careful comparing the signature of the Accused on Ex.P1 with other admitted signature available on record, both signatures are tallied and it appears that signature on Ex.P1 is belongs to the Accused. Further the Accused has not taken any legal action against the Complainant and Mr.Binoy Kuruvilla for misusing of the Cheques. 28. Ex.P12 is the reply notice wherein the Accused has not taken any specific defence. In Ex.P12 he only bare denial of the notice allegations. Further in the - 7 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 cross-examination he admits that, he has filed compliant against the Complainant and Mr.Binoy Kuruvilla in which police have filed ‘B’ report. He further admits that, members of the chit also lodged complaint against the Accused before Home Department, MLA and Police Commissioner, Bengaluru and also locality residents are also lodged complaint against him for creating nuisance. These all is shows that, conduct and nature of the Accused. Since the Accused has admitted issuance of Cheque and on comparing the signatures it belongs to the Accused. Therefore, it presumed that, Ex.P1 Cheque was issued by him in favour of Complainant for discharge of legally enforceable debt. 29. Therefore, it has to be presumed that the cheque in question was issued by the accused to discharge the legally recoverable debt or liability. The accused can place rebuttal evidence so as to show that the cheque was not issued for consideration. As appreciated supra, accused has failed to put acceptable and satisfactory evidence to probabilise the defence. Therefore, there is no question of saying that the cheque was not issued for liability. 30. The accused himself admits that he has issued question cheque. Therefore, complainant has discharged his initial onus laid on him. When he has discharged his initial onus, it raises presumption U/s 118(a) and 139 of Negotiable Instruments Act. Accused has failed to rebut the presumption either in cross-examining PW-1 and PW2 or in his evidence. - 8 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 31. So, far as sentence and compensation is concern, an offence punishable under Section 138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principle of law with facts and circumstances of the case, which clearly reveals that, the complainant had paid Rs.37 lakhs to the Accused for chit business and towards repayment of part amount, the Accused has issued Ex.P1 cheque. Therefore, considering the nature of transaction, duration of pendency, litigation expenses, I am opinion that, if sentence of fine of Rs.19,20,800/- (Rupees Nineteen Lakhs Twenty Thousand and Eight Hundred only) is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.19,20,800/- (Rupees Nineteen Lakhs Twenty Thousand and Eight Hundred only), out of that, the complainant is entitled for sum of Rs.19,15,800/- (Rupees Nineteen Lakhs Fifteen Thousand and Eight Hundred only) as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/-, is to be appropriated to the State, in case of default the accused shall under go simple imprisonment for a period of 6 months. year. Accordingly, the Point No.1 is answered in Affirmative.” 11. Being aggrieved by the same, accused filed an appeal before the District Court in Criminal Appeal No.25235/2024. - 9 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 12. 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 of the accused, inter alia holding in paragraph Nos.16 to 21 as under: “16. The presumption u/S 139 of N.I. Act is a presumption of law and not the presumption of fact. The presumption has to be raised in all the cases once the factum of issuance of cheque and its dishonour is established. U/S 118 (2) of N.I. Act, there is a presumption in respect of passing of consideration in favour of the complainant. The onus of proof to rebut the presumption lies on the accused. The accused need not rebut the presumption beyond all reasonable doubt. But, the accused has to place sufficient materials to convince the court that his case is more probable when it is compared with the case of the complainant. Accused may adduce direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability. He may also rely upon the averments in the complaint, statutory notice and the circumstantial evidence adduced by the complainant during the trial. Accused need not enter into the witness box to rebut the presumption. 17. In the case on hand, the complainant has established the factum of issuance of cheque and its dishonour. Therefore, this court shall raise a - 10 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 presumption under Section 139 of N.I. Act that the accused has issued cheque towards discharging the legally enforceable debt. After raising initial presumption it is for this court to consider whether the presumption has been rebutted by bringing in cogent materials on record with reference to the defence raised by the accused that no existence of legally recoverable debt. 18. The defence of the accused is that, the complainant had borrowed Rs.5 lakhs from him and still has not repaid and filed false complaint against him colluding with his relative by name Binoy Kuruvilla. The accused has borrowed Rs.10 lakhs from Binoy Kuruvilla and repaid the entire amount with huge interest in sum of Rs.20 lakhs through bank payment to Binoy Kuruvilla. At the time of loan transaction, the said Binoy Kuruvilla had collected two cheques bearing No.245559 and 221919 from him and after repayment of his loan, when accused requested to return the said cheques, but Binoy Kuruvilla did not return and misusing the cheques colluding with complainant by forging his signature, created document of undertaking affidavit and filed false complaint against him. 19. The learned Magistrate has exhaustively discussed the entire contentions of the accused as well as the complainant and has given well reasons regarding the facts that the accused has failed to rebut the presumption which lies in favour of the complainant. Merely because, the accused has given evidence, it - 11 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 cannot be said that the burden shifts on the complainant. The defence shall be a probable defence, which any reasonable person can believe that such a thing has happened or believes in the probability. The defence taken by the accused is not at all a probable defence and it cannot be believed that the person who was knowing the worldly affairs has given the signed cheques to the complainant without there being any liability. Hence, there is nothing on record to say that the accused has disproved the case of the complainant or raised any probable defence to shift the burden. Hence, the probabilities in the case of the complainant are more rather than in the defence taken by the accused. The trial court has rightly come to conclusion and has convicted the accused. 20. The trial court by considering the entire materials on record has rightly come to the conclusion that the accused has failed to rebut the presumption, which lies in favour of the complainant and more over recently the Hon’ble Apex Court in Crl.Appeal at Special Leave Petition (Crl.) No.12802/2022, dated 09.10.2023 between Rajesh Jain v/s Ajay Singh has in detail discussed as to how the presumption operates and once the presumption operates the onus rests on the accused to prove the non-existence of debt/liability. Wherein in the said above referred case, the accused was tried for the offence u/s.138 of N.I. Act. The trial court had acquitted the accused by considering that the onus of rebutting the presumption lay on the accused was - 12 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 discharged by raising a probable defence and the complainant has failed to prove his case beyond reasonable doubt and the defence of the accused has created a doubt regarding the truthfulness of the complainant case. Against the order of acquittal passed by the trial court, the complainant had preferred the appeal before the Hon’ble High Court. Wherein the Hon’ble High Court also upheld the order of acquittal holding that the complainant has failed to prove that the cheque was issued in respect of legally enforceable debt. Wherein in the said case, it was the defence taken by the accused that the complainant had failed to mention the date, month and the year on which he advanced various sum of money towards the loan to the accused. The version of the complainant was doubtful, since the cheque was admittedly issued in part payment of outstanding dues and no where in the complaint or demand notice complainant disclosed the total amount loan to the accused. The court found that the complainant therein was an Orthopedic Surgeon could not have advance huge amount to an accused who was a Class-IV employee without an agreement or acknowledgement of loan advance etc. When the matter went up to Hon’ble Apex Court, the Hon’ble Apex Court in detail have discussed as to when a presumption is raised, how the accused have to rebut the said presumption and when the burden shifts on the complainant and at para- 56, page-33 the Hon’ble Apex Court has observed; - 13 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 ‘56. At the stage when the courts concluded that the signature had been admitted, the Court ought to have inquired into either of the two questions (depending on the method in which accused has chosen to rebut the presumption): Has the accused led any defense evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the nonexistence of debt/liability by a preponderance of probabilities by referring to the ‘particular circumstances of the case?’ 21. Further Hon’ble Apex Court has clearly held as to when the presumption is rebutted and when the court has to shift the burden on the complainant to prove the case and what are all the facts, which can be considered as rebuttal evidence. In the background of the discussion held by the Hon’ble Apex Court, if the facts and circumstances as well as the evidence led by the parties are perused carefully, they would show that the accused though had led the evidence, but the evidence is not satisfactory to say that there is a probability in his defence and to shift the burden on the complainant to prove the transaction. When such being the fact, I hold there is nothing on record to interfere in the judgment passed by the trial court. Accordingly, I hold point for consideration No.1 in Affirmative and No.2 in Negative and proceed to pass the following:- - 14 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 ORDER Appeal is dismissed. The Judgment passed by the Learned XXXIV ACMM, Bengaluru, in CC No.59000/2018 dated 05.06.2024, convicting the appellant/accused for the offence punishable U/Sec.138 of N.I.Act is confirmed. Send back Trial Court Record (TCR) to the Trial Court along with copy of judgment. No order as to costs.” 13. Being further aggrieved by the same, accused is before this Court in this revision petition. 14. Sri Seenappa, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition would contend that there was no transaction between the complainant and accused. But accused had transaction with PW-2/Sri Benoy Kuruvilla P.K., and the cheque that has been issued to P.W.2, which has been misused by the complainant to make a wrongful gain for the complainant and therefore, sought for allowing the revision question. - 15 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 15. He would further contend that the cross-examination of PW-1 and PW-2 would be sufficient enough to establish the fact that the cheque has been misused apart from the material evidence In the form of oral testimony of DW-1 and the documentary evidence especially the undertaking affidavit and the shown statement marked in PCR No.13343/2015 and thus sought for allowing the revision of petition. 16. He would also contend that the cheque in question was not returned with an endorsement ‘funds insufficient’. There is no question of accused promising the complainant to re-present the cheque as complainant is a stranger to the accused. Therefore, re-presentation of the cheque is the voluntary act of the complainant which would not attract the offence under Section 138 of the Negotiable Instruments Act. Therefore, sought for allowing the revision petition. 17. Per contra, learned counsel for respondent supports the impugned judgments. 18. Having heard the arguments of both sides, this Court perused the material on record meticulously. - 16 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 19. On such perusal of the material on record, it is crystal clear that the cheque marked at Exhibit P-1 is belonging to the accused. No doubt the same is returned with an endorsement ‘kindly contact drawer/drawee bank’. Two successive re- presentations have been made after the first dishonour. 20. The contention urged on behalf of the revision petitioner in this regard is that the complainant is a stranger to accused and therefore it is a voluntary act of re-presentation. 21. Under the Banking Law there is no bar to re-present the cheque any number of times for collection within the period of its validity. Therefore, assuming that it is the voluntary act of the complainant, it was well within the powers of the complainant, being the holder of the cheque marked at Exhibit P-1. Therefore, on that ground, complainant cannot be non- suited. 22. Further, in the reply notice itself, accused has stated that there is mis-utilization of the cheque by the complainant. - 17 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 23. In other words, accused having the services of an advocate, having come to know that there is misuse of the cheque, should have taken some positive action as against P.W.2 as well as the complainant for the alleged misuse. No action taken by the accused in this regard in pursuance of Ex.D-8. 24. However it was not brought to the logical end by the accused. Therefore, when the theory of misappropriation of the cheque in question has failed, the presumption available to the complainant under Section 139 of the Negotiable Instruments Act did not get rebutted by the oral testimony of DW-1 and the documents placed thereon. 25. Therefore, Learned Trial Magistrate having noted that the complainant has been successful in establishing that the cheque belongs to the accused and signature found therein is that of the accused and the same was paid towards the part payment of due of Rs.32,00,000/- to the complainant, was justified in convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act which was - 18 - HC-KAR NC: 2026:KHC:19526 CRL.RP No. 1162 of 2025 rightly re-appreciated by the learned Judge in the First Appellate Court as referred to supra. 26. Having regard to the limited revisional jurisdiction, this Court does not find any good grounds to interfere with the order of the Trial Magistrate confirmed by the First Appellate Court. 27. Thus, the following: ORDER Revision Petition is dismissed. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 2 Sl No.: 47