- 1 - HC-KAR NC: 2026:KHC:4356 CRL.RP No. 1366 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY CRIMINAL REVISION PETITION NO. 1366 OF 2016 BETWEEN: SMT. MAMATHA W/O PRAKASH C AGED ABOUT 38 YEARS R/AT #16, MUNESWARA TEMPLE STREET NAGASEHTTYHALLY RMV 2ND STAGE BANGALORE - 560 094. …PETITIONER (BY SRI RAVI KUMAR M.B, ADV.) AND: SRI M. MUNIKRISHNA S/O LATE MUNIBYRAPPA AGED AB;IUT 42 YEARS #29, 1ST CROSS, NAGAPPA STREET P.G. HALLI BANGALORE - 560 003. …RESPONDENT (BY SRI JAYARAMAIAH, ADV.) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.09.2015 PASSED BY THE XXI A.C.M.M., BANGALORE IN C.C.NO.22006/2012 AND ORDER DATED 19.09.2016 IN CRL.A.NO.1241/2015 ON THE FILE OF LXVIII ADDL. CITY CIVIL AND S.J., BANGALORE AND ACQUIT THE PETITIONER FOR THE OFFENCE P/U/S 138 OF N.I. ACT. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:4356 CRL.RP No. 1366 of 2016 CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. Accused is before this Court in this revision petition filed under Section 397 read with Section 401 of Cr.PC with a prayer to set aside the judgment and order of conviction and sentence dated 05.09.2015 passed by the Court of XXI Addl. Chief Metropolitan Magistrate, Bengaluru, in CC.No.22006/2012, and the judgment and order in Crl.A.No.1241/2015 dated 19.09.2016 passed by the Court of LXVIII Addl. City Civil & 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 (for short, 'N.I.Act.') before the jurisdictional Court of Magistrate, Bengaluru, in CC.No.22006/2012. 4. It is the specific case of the respondent herein that petitioner who is acquainted to him, had borrowed a sum of Rs.7,50,000/- to meet her requirements and towards - 3 - HC-KAR NC: 2026:KHC:4356 CRL.RP No. 1366 of 2016 repayment of the said amount, had executed an on demand promissory note and consideration receipt acknowledging the receipt of loan. Towards repayment of amount borrowed, cheque bearing No.939118 dated 21.06.2012 for a sum of Rs.7,50,000/- drawn on Vijaya Bank, Sanjaynagar Branch, Bengaluru, was issued in favour of the respondent by the petitioner. The said cheque on presentation for realization was dishonoured with a shara 'insufficient funds'. Thereafter, legal notice was issued to the petitioner and since the petitioner had not repaid the amount covered under the cheque in question inspite of service of notice, the respondent had initiated proceedings against the petitioner for the offence punishable under Section 138 of the N.I.Act. 5. The petitioner who had appeared before the Trial Court in response to the summons in CC.No.22006/2012 claimed to be tried, and therefore, in order to substantiate his case, petitioner had examined himself as PW-1 and another witness as PW-2. 12 documents were got marked as Exs.P-1 to P-12. On behalf of the defence, petitioner had examined herself as DW-1 and got marked eight documents as Exs.D-1 to D-8. - 4 - HC-KAR NC: 2026:KHC:4356 CRL.RP No. 1366 of 2016 6. The Trial Court, thereafter, heard the arguments addressed on both sides and vide the impugned judgment and order dated 05.09.2015 convicted the petitioner for the offence punishable under Section 138 of the N.I.Act, and sentenced him to pay fine of Rs.7,60,000/- and in default, to undergo simple imprisonment for a period of 10 months. The said judgment and order of conviction and sentence was challenged before the Appellate Court in Crl.A.No.1241/2015, which was dismissed on 19.09.2016. Being aggrieved by the same, petitioner is before this Court. 7. Learned Counsel for the petitioner having reiterated the grounds urged in the petition, submits that statutory notice issued to the petitioner was not served on her. He submits that respondent has failed to prove the transaction between the petitioner and the respondent. It is the specific case of the petitioner that the cheque in question was issued to Chudamani - friend of the respondent and the same was misused. In the proceedings which was initiated by Chudamani against the petitioner for the offence punishable under Section 138 of the - 5 - HC-KAR NC: 2026:KHC:4356 CRL.RP No. 1366 of 2016 N.I.Act, she has been acquitted. Accordingly, he prays to allow the petition. 8. Per contra, learned Counsel appearing for the respondent has argued in support of the impugned judgment and order of conviction and sentence, and has prayed to dismiss the petition. 9. It is the specific case of the respondent-complainant that petitioner had borrowed an amount of Rs.7,50,000/- from him and had promised to repay the amount borrowed with interest at 1.5% per month. According to the respondent, petitioner has acknowledged the borrowing of loan from the respondent and had executed a receipt of payment and also a demand promissory note undertaking to repay the amount borrowed with interest. The on demand promissory note executed by the petitioner dated 29.03.2010 and the consideration receipt is produced and marked before the Trial Court as Ex.P-10. Signature of the petitioner found in the said document, is also marked. - 6 - HC-KAR NC: 2026:KHC:4356 CRL.RP No. 1366 of 2016 10. During the course of cross-examination of DW-1, she has admitted her signature found in Ex.P-10. To prove the execution of Ex.P-10, PW-2 who is the one of the witness to the said document is also examined on behalf of the respondent- complainant. Signature of PW-2 is marked as Ex.P-10(b) and this witness has deposed about the petitioner borrowing an amount of Rs.7,50,000/- from the respondent and also executing Ex.P-10 in his presence. The evidence of PW-1 is corroborated with the evidence of PW-2 who has spoken about the execution of Ex.P-10 by the petitioner. Therefore, it cannot be said that the respondent has failed to produce any document with regard to the transaction between the petitioner and the respondent. 11. The petitioner has not disputed her signature found in the cheque in question, nor has she disputed the cheque that was drawn on the bank account maintained by her in Vijaya Bank, Sanjaynagar Branch, Bengaluru. The said cheque on presentation for realization was dishonoured with a shara 'insufficient funds'. Therefore, there is a presumption against the petitioner under Section 139 read with 118 of N.I.Act, and - 7 - HC-KAR NC: 2026:KHC:4356 CRL.RP No. 1366 of 2016 unless the said presumption is probablized, she is liable to be convicted for the offence punishable under Section 138 of the N.I.Act. The petitioner has taken a specific defence in the present case that the cheque in question was issued to Chudamani who is the friend of the respondent and the said cheque was misused by the respondent. Except the oral testimony of DW-1, there is no other material to substantiate this defence of the petitioner, and on the other hand, the respondent has produced Ex.P-10 and also has examined PW-2 to prove the transaction between him and the petitioner. Therefore, it cannot be said that petitioner had successfully rebutted the presumption to probablize the defence. Unless the petitioner probablizes the defence put forward by her by producing necessary oral and documentary evidence before the Trial Court, she is liable to be convicted for the offence punishable under Section 138 of the N.I.Act. 12. The Hon'ble Supreme Court in the case of K.N.BEENA VS MUNIYAPPAN & ANOTHER - (2001)8 SCC 458, has observed that the defence put forward by the accused so as to successfully rebut the presumption that arises against him - 8 - HC-KAR NC: 2026:KHC:4356 CRL.RP No. 1366 of 2016 under Section 139 of N.I.Act, is required to be probable. A plausible defence is not sufficient to rebut the presumption. 13. Though a submission is made by the learned Counsel for the petitioner that the statutory notice issued after the cheque in question was dishonoured was not served on the petitioner, the material on record would go to show that the statutory notice was issued on behalf of the respondent on three different addresses of the petitioner and one of the notice was served and Ex.P-9 is the postal acknowledgment for having received the legal notice. In addition to the same, one of the legal notice was returned with an endorsement 'unclaimed'. Therefore, the Trial Court in the light of Section 27 of the General Clauses Act, has held that notice issued to the petitioner was deemed to have been served. 14. In view of the aforesaid aspects of the matter, I am of the opinion that the courts below were fully justified in convicting the petitioner for the offence punishable under Section 138 of the N.I.Act. Even the order of sentence passed against the petitioner is just and proper which does not call for any interference. Therefore, I do not find any good ground to - 9 - HC-KAR NC: 2026:KHC:4356 CRL.RP No. 1366 of 2016 entertain this petition. Accordingly, revision petition is dismissed. 15. Registry is directed to send back the Trial Court records, forthwith. Sd/- (S VISHWAJITH SHETTY) JUDGE KK