- 1 - HC-KAR NC: 2026:KHC:8663 CRL.RP No. 671 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY CRIMINAL REVISION PETITION NO. 671 OF 2017 BETWEEN: MR. DINESH KUMAR AGED 54 YEARS S/O K BABU, R/A "ANU DEEKSHA" BISHOP VICTOR ROAD, ATTAVAR MANGALURU - 575 002. …PETITIONER (BY SRI P.P. HEGDE, SR. COUNSEL FOR SRI GAURAV G.K, ADV) AND: MR. CHANDRAHASA ULLALA S/O ISHWARA ULLALA, AGED 61 YEARS PERMANENT ADDRESS "KANNANS NILAYA" ANANGOOR,KASARAGOD TALUK AND DISTRICT,NOW R/AT THOKKOTTU,PERMANNUR VILLAGE MANGALURU TALUK DAKSHINA KANNADA DISTRICT 505 017. …RESPONDENT (BY SRI G. RAVISHANKAR SHASTRY, ADV.) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 24.03.2015 PASSED BY THE JMFC-V, MANGALORE IN C.C.NO.2093/2012, WHICH IS CONFIRMED AS PER THE JUDGMENT DATED 31.05.2017 PASSED BY THE PRL. S.J., D.K., MANGALORE IN CRL.A.NO.100/2015 AND ACQUIT THE PETR. HEREIN IN C.C.NO.2093/2012 ON THE FILE OF THE V-JMFC, MANGALORE. Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:8663 CRL.RP No. 671 of 2017 THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. Accused is before this Court in this revision petition filed under Sections 397 read with 401 of Cr.PC with a prayer to set aside the judgment and order of conviction and sentence dated 24.03.2015 passed in CC.No.2093/2012 by the Court of JMFC-V, Mangaluru, D.K., and the judgment and order dated 31.05.2017 passed in Crl.A.No.100/2015 passed by the Court of Prl. Sessions Judge, D.K. Mangaluru. 2. Heard the learned Counsel for the parties. 3. It is the case of the respondent that petitioner had borrowed a sum of Rs.5 lakhs from him and towards repayment of the said amount, the cheque in question bearing No.0177476 dated 27.12.2005 drawn on Union Bank of India, Hampanakatte Branch, D.K. Mangaluru, was issued in his favour for a sum of Rs.5 lakhs. The said cheque on presentation for realization was dishonoured by the drawee bank. Thereafter, a legal notice was issued on behalf of the - 3 - HC-KAR NC: 2026:KHC:8663 CRL.RP No. 671 of 2017 complainant which was duly served on the petitioner. Since the petitioner had failed to repay the amount covered under the cheque in question, respondent had initiated proceedings against him for the offence punishable under Section 138 of the N.I.Act in CC.No.2093/2012. 4. In the said proceedings, respondent had examined himself as PW-1 and got marked five documents as Exs.P-1 to P-5. On behalf of the defence, petitioner had got himself examined as DW-1 and got marked three documents as Exs.D-1 to D-3. The Trial Court after hearing the arguments on both sides and on appreciation of oral and documentary evidence available on record, convicted the petitioner for the offence punishable under Section 138 of the Act, and sentenced the petitioner to pay fine of Rs.5 lakhs and in default to undergo simple imprisonment for a period of three months. The said judgment and order of conviction and sentence passed by the Trial Court in CC.No.2093/2012 has been confirmed by the Appellate Court in Crl.A.No.100/2015 by judgment and order dated 31.05.2017. It is under these circumstances, petitioner is before this Court. - 4 - HC-KAR NC: 2026:KHC:8663 CRL.RP No. 671 of 2017 5. Learned Senior Counsel for the petitioner submits that the statutory legal notice was not issued within a period of 30 days from the date of receipt of information about dishonour of the cheque in question from the bank. He submits that legal notice as provided under Section 138(b) of the N.I.Act is required to be issued within 30 days from the date of receipt of information from the bank, which is not done in the present case. Complaint filed beyond the period of 30 days is not maintainable in view of the judgment of the Hon'ble Supreme Court in the case of SIVAKUMAR VS NATARAJAN - (2009)13 SCC 623. He submits that the defence raised by the petitioner before the Trial Court has not been properly appreciated in the present case and the courts below have erred in convicting the petitioner for the offence punishable under Section 138 of the N.I.Act. Accordingly, he prays to allow the petition. 6. Per contra, learned Counsel for the respondent submits that the information about dishonour of the cheque was received from the bank on 31.12.2005 vide Ex.P-3. Legal notice dated 28.01.2006 has been dispatched from the post office on 30.01.2026 which was received by the petitioner on - 5 - HC-KAR NC: 2026:KHC:8663 CRL.RP No. 671 of 2017 01.02.2006. He has placed reliance on the judgment of the Hon'ble Supreme Court in the case of ECON ANTRI LTD. VS ROM INDUSTRIES LTD. - LAWS(SC)-2013-8-58, and submits that for the purpose of calculating the period of one month prescribed under Section 142(1)(b) of N.I.Act for filing the complaint from the date on which the cause of action arises needs to be excluded. He submits that petitioner had filed a private complaint before the jurisdictional Court of Magistrate alleging that cheque in question was misused by the respondent and in the said case, police after investigation have filed a 'B' final report and closed the case. The courts below after appreciating the oral and documentary evidence, have rightly convicted and sentenced the petitioner for the offence punishable under Section 138 of the N.I.Act. Accordingly, he prays to dismiss the petition. 7. Complainant has examined himself before the Trial Court as PW-1 and has got marked five documents as Exs.P-1 to P-5. According to PW-1, respondent had borrowed a sum of Rs.5 lakhs from him and towards repayment of the said amount, the cheque in question Ex.P-1 dated 27.12.2005 was issued in his - 6 - HC-KAR NC: 2026:KHC:8663 CRL.RP No. 671 of 2017 favour. The said cheque on presentation for realization was dishonoured and Ex.P-3 dated 31.12.2005 is the bank memo under which the dishonoured cheque was received by PW-1. 8. Section 138 of the N.I.Act reads as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 4 [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; - 7 - HC-KAR NC: 2026:KHC:8663 CRL.RP No. 671 of 2017 (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, 5 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.—For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability." 9. Section 138(b) of the N.I.Act provides that notice in writing is required to be given to drawer of the cheque within 30 days of the receipt of information by the payee or the holder in due course of the cheque from the bank regarding return of cheque as unpaid. 10. The legal notice dated 28.01.2006 has been dispatched from the post office in the present case to the address of the petitioner undisputedly on 30.01.2006. According to the learned Counsel for the petitioner, the date of receipt of - 8 - HC-KAR NC: 2026:KHC:8663 CRL.RP No. 671 of 2017 information from the bank about the dishonour of cheque is required to be taken into consideration for calculating the period of 30 days as provided under Section 138 of the N.I.Act to issue the notice in writing to the drawer of the bank. In support of this contention, learned Senior Counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Siva Kumar's case supra, wherein in paragraphs 10 to 12, it is observed as under: "10. We may, however, at the outset notice that both clauses (a) and (b) of the proviso appended to Section 138 of the Act employed the term "within a period". Whereas clause (a) refers to presentation of the cheque to the bank within a period of six months from the date on which it is drawn, clause (b) provides for issuance of notice "to the drawer of the cheque, within thirty days of the receipt of information". The words "within thirty days of the receipt of information" are significant. Indisputably, intimation was received by the respondent from the bank on 3-12-2003. 11. Parliament advisedly did not use the words "from the date of receipt of information" in Section 138 of the Act. It is also of some significance to notice that in terms of Section 9 of the General Clauses Act, 1897, whereupon reliance has been placed by the High Court, the statute is required to use the word "from" and for the purpose of including the last in a series of days or any - 9 - HC-KAR NC: 2026:KHC:8663 CRL.RP No. 671 of 2017 other period of time, to use the word "to". The departure made from the provisions of Section 9 of the General Clauses Act by Parliament, therefore, deserves serious consideration. 12. Indisputably, the notice was issued on the 31st day and not within a period of thirty days from the date of receipt of intimation from the bank. If Section 9 of the General Clauses Act is not applicable, clause (b) of the proviso appended to Section 138 of the Act was required to be complied with by the respondent for the purpose of maintaining a complaint petition against the appellant." 11. In the case on hand, 30th day from the date of receipt of information from the bank about the dishonour of the cheque falls on 29.01.2006 which was a Sunday. Legal notice - Ex.P-4 has been dispatched on the next date i.e., 30.01.2006 and in view of Section 10 of the General Clauses Act, it is required to be held that legal notice - Ex.P-4 was issued on the next working day is within 30 days as provided under Section 138(b) of the N.I.Act. Therefore, the contention urged by the learned Senior Counsel on behalf of the petitioner that since statutory legal notice was not issued within the prescribed period of 30 days as provided under Section 138(b) of the N.I.Act, the complaint was not maintainable, is liable to be rejected. - 10 - HC-KAR NC: 2026:KHC:8663 CRL.RP No. 671 of 2017 12. The signature of the petitioner and the seal of his construction firm found in the cheque in question is not in dispute. It is also not in dispute that the cheque in question was drawn on the bank account of the petitioner maintained by him in Union Bank of India, Hampanakatte Branch, D.K. Mangaluru. Therefore, the presumption arises against the petitioner as provided under Section 139 read with 118 of the N.I.Act. According to the petitioner, he had issued the blank signed cheque to Mr. Arun Samson, and he had handed over the said cheque to the complainant, who had misused the cheques to initiate proceedings for the offence punishable under Section 138 of the N.I.Act. 13. Petitioner who had examined himself as DW-1, has produced documents at Exs.D-1 to D-3. Ex.D-1 is the copy of the complaint filed by the petitioner against the complainant and the aforesaid Arun Samson alleging misuse of the cheque in question. Learned Senior Counsel for the petitioner during the course of arguments has admitted that FIR which was registered pursuant to the complaint at Ex.D-1 has been closed by the police after investigation. Therefore, the defence raised - 11 - HC-KAR NC: 2026:KHC:8663 CRL.RP No. 671 of 2017 by the petitioner was not probablized by him and since the presumption that arose against the petitioner stood unrebutted, the Trial Court was fully justified in convicting and sentencing the petitioner for the offence punishable under Section 138 of the N.I.Act. The Appellate Court having re-appreciated the oral and documentary evidence available on record, has confirmed the impugned judgment and order of conviction and sentence passed by the Trial Court. Under the circumstances, I do not find any good ground to interfere with the impugned judgment and order of conviction and sentence passed by the courts below which are just and proper. Accordingly, the following order: 13. Criminal revision petition is dismissed. Sd/- (S VISHWAJITH SHETTY) JUDGE KK