- 1 - HC-KAR NC: 2026:KHC:1963 CRL.RP No. 457 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY CRIMINAL REVISION PETITION NO. 457 OF 2017 BETWEEN: SRI A KRISHNA S/O ANKEGOWDA AGED ABOUT 52 YEARS RESIDING AT NO.35 12TH MAIN, 1ST BLOCK 3RD STAGE, BASAVESHWARANAGARA BANGALORE - 79. &PETITIONER (BY SRI LAKSHMIKANTH K, ADV.) AND: SRI C.A. VARADARAJU S/O AKKAL RAJU SOLE PROPRIETOR OF SRI LAKSHMU NARASHIMMA ENTERPRISES, NO.1/1, 14TH CROSS MALLESWARAM, EAST PARK ROAD BANGALORE - 03. &RESPONDENT (BY SRI NAGARAJ DAMODAR, ADV.) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 03.03.2016 PASSED IN C.C.NO.3430/2015 BY THE LEARNED XXI ACMM, BANGALORE AND CONFIRMED IN CRL.A.NO.421/2016 DATED 08.03.2017 BY THE LEARNED LXII ADDL. DIST AND S.J., BANGALORE (CCH-3). THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:1963 CRL.RP No. 457 of 2017 CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. Accused is before this Court in this Criminal Revision Petition filed under Section 397 read with Section 401 of Cr.P.C. with a prayer to set-aside the judgment and order of conviction and sentence passed in CC No.3430/2015 by the Court of XXI Addl. Chief Metropolitan Magistrate, Bengaluru, dated 03.03.2016 and the judgment and order dated 08.03.2017 passed in Crl.A.No.421/2016 by the Court of LXII Addl. City Civil and Sessions Judge, Bengaluru. 2. Heard the learned counsel for the parties. 3. Respondent herein had initiated proceedings against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, in CC No.3430/2015 before the Court of XXI Additional Chief Metropolitan Magistrate, Bengaluru. It is the case of the complainant that petitioner had borrowed a sum of Rs.10,10,000/- from him on 02.05.2014 and also had executed on demand promissory note agreeing to repay the borrowed amount with the interest. Towards repayment of the aforesaid amount, the petitioner had issued - 3 - HC-KAR NC: 2026:KHC:1963 CRL.RP No. 457 of 2017 the cheque in question dated 31.10.2014 bearing No.810467 drawn on State Bank of Mysore, P&S Division, Bengaluru in favour of Sri Lakshmi Narasimha Enterprises, the proprietary concern of the complainant. When the said cheque was presented for realization, the same was dishonoured with a shara 'insufficient funds'. Thereafter, legal notice was issued on behalf of the complainant to the petitioner and since the petitioner had not paid the amount covered under the cheque in question inspite of service of notice, the respondent/complainant had initiated proceedings against the petitioner for the offence punishable under Section 138 of the N.I.Act. 4. In the said proceedings, petitioner had appeared before the Court in response to the summons received by him from the Trial Court and had claimed to be tried. To substantiate his case, respondent/complainant had examined himself as PW1 and had got marked 10 documents as Ex.P1 to P10. In support of defence, the petitioner had examined himself as DW1 and another witness was examined as DW2. Four documents were got marked as Ex.D1 to D4 on behalf of the defence. The Trial - 4 - HC-KAR NC: 2026:KHC:1963 CRL.RP No. 457 of 2017 Court, after hearing the arguments addressed on both sides, vide its judgment and order dated 03.03.2016 had convicted the petitioner for the offence punishable under Section 138 of the N.I.Act and had sentenced him to pay fine of Rs.10,20,000/- and in default to undergo simple imprisonment for a period of ten months. The said judgment and order of conviction and sentence passed by the Trial Court has been confirmed in Crl.A.No.421/2016 by the Court of LXII Addl. City Civil and Sessions Judge, Bengaluru, by judgment and order dated 08.03.2017. It is under these circumstances, the petitioner is before this Court. 5. Learned counsel for the petitioner having referred to the oral and documentary evidence available on record submits that petitioner had borrowed only a sum of Rs.10,00,000/- from the respondent and the said amount has been repaid with interest on 30.04.2014. He submits that a sum of Rs.15,00,000/- was transferred to the account of the respondent on 30.04.2014. The cheque which was issued as security to the loan borrowed has been subsequently misused by the respondent/complainant and the present criminal - 5 - HC-KAR NC: 2026:KHC:1963 CRL.RP No. 457 of 2017 proceedings is initiated against the petitioner. The Trial Court as well as the Appellate Court have failed to appreciate this aspect of the matter. He, accordingly, prays to allow the petition. 6. Per contra, learned counsel for the respondent has argued in support of the impugned judgment and order of conviction and sentence. He submits that petitioner, who is an acquaintance of respondent had earlier borrowed a sum of Rs.35,00,000/- and also had issued a cheque towards repayment of the said amount. After the cheque for a sum of Rs.35,00,000/- issued by the petitioner was dishonored, he had paid a sum of Rs.20,00,000/- in cash and the balance amount of Rs.15,00,000/- was transferred through RTGS on 30.04.2014. Subsequently, a fresh loan was borrowed by the petitioner on 03.05.2014 and the cheque in question has been issued towards repayment of the said amount. He submits that the Trial Court as well as the Appellate Court having appreciated that the petitioner had failed to prove that he had repaid the amount of Rs.10,10,000/- borrowed from the - 6 - HC-KAR NC: 2026:KHC:1963 CRL.RP No. 457 of 2017 respondent have rightly convicted the petitioner for the alleged offence. He, accordingly, prays to dismiss the petition. 7. According to the respondent/complainant, petitioner had borrowed amount of Rs.10,10,000/- from him in cash on 03.05.2014, agreeing to pay the said amount with interest at 2% p. a. Ex.P6 is the on demand pronote executed by the petitioner in favour of the respondent agreeing to repay the amount of Rs.10,10,000/- borrowed by him with interest rate 2% p. a. Ex.P6 is not only signed by the petitioner but also by his son as a witness. The signature of the petitioner and his son Abhishek found in Ex.P6 is not in dispute. According to the respondent, the cheque in question was issued by the petitioner towards repayment of the aforesaid amount of Rs.10,10,000/- borrowed by him on 03.05.2014. The petitioner has not disputed his signature found in the cheque in question and it is also not in dispute that the cheque is drawn on the bank account of the petitioner maintained in State Bank of Mysore, P&S Division, Bengaluru. Therefore, a presumption arises against the petitioner under Section 139 of the N. I. Act. Unless the petitioner rebuts the said presumption by putting forward a - 7 - HC-KAR NC: 2026:KHC:1963 CRL.RP No. 457 of 2017 probable defence, he is liable to be convicted for the offence punishable under Section 138 of the N. I. Act. 8. Petitioner has set-up a defence that he had borrowed sum of Rs.10,00,000/- from the respondent and the same was repaid with interest on 30.04.2014 by transferring a sum of Rs.15,00,000/- to the bank account of the respondent. Receipt of the aforesaid sum of Rs.15,00,000/- in the bank account of the respondent on 30.04.2014 is not in dispute. According to the respondent, petitioner had earlier borrowed a sum of Rs.35,00,000/- and towards repayment of the said amount, he had issued a cheque in favour of the respondent for a sum of Rs.35,00,000/- and on presentation of the said cheque for realization, the same was dishonoured by the drawee bank. Thereafter, the petitioner had paid a sum of Rs.20,00,000/- in cash to the respondent and balance amount of Rs.15,00,000/- was paid through RTGS on 30.04.2014. In support of his case that petitioner had earlier borrowed a sum of Rs.35,00,000/- and towards repayment of the said amount, he had issued a cheque in favour of the respondent for sum of Rs.35,00,000/-, the respondent has produced the original of the cheque issued - 8 - HC-KAR NC: 2026:KHC:1963 CRL.RP No. 457 of 2017 by the petitioner in his favour for a sum of Rs.35,00,000/- and the said cheque is marked as Ex.P7. Ex.P7 cheque is dated 05.04.2014 and the same bears No.810458. According to the petitioner, as security to the loan amount of Rs.10,00,000/- borrowed by him, he had issued two blank cheques and Ex.P7 is one of the said cheques and the other cheque is the cheque in question, namely, Ex.P1. If the petitioner had issued two cheques as security for the amount borrowed by him, in normal circumstances, the said two cheques should be having running cheque numbers. But Ex.P1 and Ex.P7 do not have running cheque numbers. The cheque number of Ex.P1 is 810467, whereas the cheque number of Ex.P7 is 810458. By producing Ex.P7 and Ex.P8, the respondent/complainant has proved that petitioner had earlier issued a cheque in his favour for a sum of Rs.35,00,000/- which was presented in the month April-2014 for realization and the same was also dishonored. The presentation of the cheque for sum of Rs.35,00,000/- would have definitely come to the knowledge of the petitioner. Repayment of Rs.15,00,000/- by the petitioner to the respondent through RTGS is only after the cheque issued in favour of the petitioner for a sum of Rs.35,00,000/- was - 9 - HC-KAR NC: 2026:KHC:1963 CRL.RP No. 457 of 2017 dishonored. If the respondent had misused the cheque issued towards security and had presented the same by filling it, for a sum of Rs.35,00,000/-, the petitioner, who is a police constable, would not have repaid the amount of Rs.15,00,000/- through RTGS. According to the petitioner, after the petitioner had repaid the loan due on 30.04.2014 by transferring a sum of Rs.15,00,000/- through RTGS to the bank account of the respondent, the cheque in question which was allegedly issued by him towards security for the loan borrowed was misused by the respondent and the present criminal proceedings was initiated against him. If that is so, petitioner being a police constable who was in service, should have taken action against the respondent for misusing the cheque and cheating him. Undisputedly, no such action has been taken by the petitioner against the respondent. 9. According to the petitioner, he had borrowed amount of Rs.10,00,000/- from the respondent in the presence of DW2, who is the erstwhile partner of the respondent. During the course of cross-examination of DW2, it has come on record that the partnership business between the complainant and DW2 - 10 - HC-KAR NC: 2026:KHC:1963 CRL.RP No. 457 of 2017 has already come to an end and towards repayment of the amount of Rs.20,00,000/- invested by the respondent in the partnership business, the cheque which was issued by DW2 in favour of the respondent, was dishonored and a separate criminal proceedings was initiated by the respondent against DW2 which was pending consideration in CC No.4614/2015. Since DW2 himself was facing a cheque bounce case, which was initiated by the respondent, his evidence is not helpful to the petitioner to prove the defence set-up by him. The petitioner, had therefore, failed to rebut the presumption that arose against him under Section 139 read with Section 118 of the N. I. Act. It is under these circumstances, the Trial Court as well as the Appellate Court having found the petitioner guilty of the offence punishable under Section 138 of the N. I. Act has convicted and sentenced him for the aforesaid offence. I do not find any illegality or irregularity in the judgment and order of conviction and sentence passed by both the Courts, which need interference by this Court. The order of sentence passed by both the Courts is also just and proportionate and does not need any interference. Under the circumstances, I am of the - 11 - HC-KAR NC: 2026:KHC:1963 CRL.RP No. 457 of 2017 opinion that this revision petition lacks merit. Accordingly, the same is dismissed. 10. The amount in deposit before the Trial Court is permitted to be withdrawn by the respondent/complainant. Sd/- (S VISHWAJITH SHETTY) JUDGE DN List No.: 1 Sl No.: 55