- 1 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 1315 OF 2022 BETWEEN: SRI RUSSEL RAJ S/O MR. THANGANADAR AGED ABOUT 61 YEARS R/AT NO.47, OLD NO. 21, NEW AVADI ROAD, KILPAUK GARDENS CHENNAI 600 010. .. PETITIONER (BY SRI. HARISH H V., ADVOCATE) AND: SRI ABDUL ALEEM S/O LATE ABDUL RASHEED AGED ABOUT 55 YEARS R/AT NO. 42/7, AT NO. SKYLINE MANOR APARTMENTS FLAT NO. 003, NO.7, BRIDE STREET, LANGFORD ROAD, RICHMOND TOWN BENGALURU 560002. .. RESPONDENT (BY SMT. ASHA, ADVOCATE FOR SRI. SRINIVASAN V., ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY THE XXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 BANGALORE IN CRL.A.NO.25046/2016 DATED 24.08.2022 WHEREIN THE LEARNED JUDGE OF FIRST APPELLATE COURT HS CONFIRMED THE JUDGMENT AND SENTENCE PASSED BY THE XIV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, MAYO HALL UNIT, BANGALORE IN C.C.NO.26934/2012 DATED 27.07.2016 BY ALLOWING THE ABOVE REVISION PETITION IN ITS ENTIRETY AND DISMISS THE COMPLAINT FILED BY THE COMPLAINANT. 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. H. V. Harish, learned counsel for the petitioner and Smt. H. V. Asha on behalf of V. Srinivasan, learned counsel for the respondent. 2. Accused who suffered an order of conviction for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, "NI Act") in C.C.No.26934/2012, confirmed in Criminal Appeal No.25046/2016, is the revision petitioner. 3. Facts in the nutshell which are utmost necessary for disposal of the present petition are as under: - 3 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 3.1. A private complaint came to be lodged under Section 200 of the Code of Criminal Procedure (Cr.P.C.) alleging the commission of an offence punishable under Section 138 of the NI Act by contending that the complainant and accused are friends and the accused approached the complainant seeking a hand loan of Rs.5,00,000/- for business expenses. The same was lent by the accused. 3.2. In the month of January 2011, the accused had agreed to repay the same within eight months. Towards the repayment, the accused issued a cheque bearing No.147030 dated 25.08.2011 drawn on AXIS Bank Ltd., Mogappair, Chennai, which on presentation came to be dishonored with an endorsement "Account closed." 3.3. A Legal notice was issued calling upon the accused to pay the amount covered under the cheque. Notice sent through RPAD as well as DTDC courier service is served on the accused. Accused failed to comply with the callings of notice, and therefore, action was sought. 4. Learned Trial Magistrate, after completing the necessary formalities, summoned the accused and recorded the - 4 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 plea. The accused pleaded not guilty. Therefore, a trial was held. 5. In order to prove the case of the complainant, he got examined himself as P.W.1 and placed on record 11 documents, which are exhibited and marked as Exhibits P1 to P11 comprising a dishonoured cheque, bank endorsement, copy of the legal notice, postal acknowledgement, speed post acknowledgement, courier receipt, DTDC courier receipt, reply notice, RPAD cover, and demand promissory note. 6. Detailed cross-examination of P.W.1 suggesting that the accused is a stranger to the complainant and cheque which had been issued in favour of Sri.Uday Kumar has been misused by the complainant in active collusion with Uday Kumar is denied by the complainant. 7. The complainant, having enjoyed the presumption under Section 139 of the NI Act, which was rebuttable in nature, stepped into the witness box and got examined himself as DW1 and placed on record 8 documents, which were exhibited and marked as Exhibits D1 to D8. Among the exhibits that is marked on behalf of the accused, Exhibits D1 to D4 are - 5 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 the receipts, wherein the cheque number marked at Exhibit P1 finds a place and certified copy of the complaint and order in C.C.No.4113 of 2011, which came to be dismissed for default and certified copy of the complaint filed by Uday Kumar, which also got dismissed on account of the death of said Uday Kumar and death certificate is marked as Exhibit D8. 8. Thereafter, learned trial Magistrate heard the arguments of the parties and on cumulative consideration of oral and documentary evidence on record, rejected the defence of the accused, appreciated the case of the complainant and convicted the accuse sentenced him to pay a fine of Rs.7,25,000/- inter alia holding in paragraph Nos.17 to 21 as under: "17. As argued by the learned counsel for the accused, no doubt the accused has given reply notice to the notice of the complainant and he has taken specific stand at the earliest available opportunity to him. It is also noticed that the contents of Ex.D1 to D4 are looked into, there is reference with regard to the Ex.P1-cheque in question. But it is pertinent to note that the accused has not examined the author of Ex.D1 to D4 to substantiate his contention. Apart from that as argued by the learned counsel for the complainant, it is not the case of the accused that the said Udayakumar was running Cosmo Enterprises as found in Ex.D1 to D4. Absolutely there is no convincing and acceptable evidence to link the Ex.D1 to D4 with said Udayakumar as put up by the accused. In this regard, even in the evidence of the accused himself is looked into, in his cross-examination he has specifically stated that he does not know what is the nature of Cosmo Enterprises. - 6 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 The complainant has specifically denied the very existence of Cosmo Enterprises itself. But the accused has not produced any document to show the existence of Cosmo Enterprises and it is related to Udayakumar from whom he stated to availed the loan. No doubt as argued by the learned counsel for the accused, there is reference in Ex.D1 to D4 as to the Ex.P1-cheque. But only on the basis of said Ex.D1 to D4 it cannot be said that the cheque in question was given to one Udayakumar and the same was misused by Vinod Kumar as put up by the accused. 18. The contents of Ex.D5 and D6 disclose that one A.R.Vinod Kumar filed complaint U/s.138 of N.I. Act against the accused and the same was dismissed as steps not taken. The contents of Ex.D5 disclose that the said case was relating to cheque bearing No.147024 dated 1.6.2011 for Rs.6 lakhs. The said cheque number is also found in Ex.D1 to D4, but on the basis of said document, it cannot be held that the complainant of the said case Mr.A.R.Vinod Kumar filed the present case through the present complainant by misusing the cheque as contended by the accused. The contents of Ex.D7 disclose that Mr.A.R.Vinod Kumar filed complaint against one T.Johnson for the offence punishable U/s.138 of N.1. Act. But the said document is no way helpful to the accused in any manner to establish his cse in the present case. Ex.D8 disclose as to death of Udayakumar and in that regard there is no dispute. Thus the contents of Ex.D1 to D8 are looked into, it is found that they are no way helpful to the accused prove his defence as contended. 19. It is also noticed from the evidence available on file that though the accused has contended that he had given cheque in question to one Udayakumar, the suggestion put to the mouth of PW.1 during the corss-examination goes against to the said contention. During the Cross- examination of PW.1, it is specifically suggested that Ex.P1-cheque was given to the complainant himself stating that it was given to him in blank. PW.1 has specifically stated that when Ex.P1-cheque was given to him it was filled up. This suggestion is exactly contrary to the defence taken by the accused. At this stage, it is also to be noted that the evidence of DW.1 himself makes it clear that he was in need of finance in the year 2010. It is also noticed that the accused is found to be an advocate and well educated. If at all the cheque was misused either by Vinod Kumar or by the complainant herein, he should have taken appropriate legal steps in that regard, but he has not taken any such steps. This again creates doubt as to the - 7 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 genuineness and probability of the defence taken by the accused. 20. As argued by the learned counsel for accused, the complainant has not stated as the date of availment of loan, rate of interest and who had introduced the accused to him. But only on the basis of said aspect, the case of the complainant cannot be suspected. The accused has utterly failed to prove how the complainant got Ex.P1- cheque as put up by him. Further as argued by the learned counsel for accused, the evidence of PW.1 during cross-examination disclose that the complainant had documents to show that he had five lakhs to lend, but he has not produced the said documents before this Court. But in this regard it is pertinent to note that now where the accused had denied the financial capacity of the accused either in the reply notice or in his own evidence. Further if the accused is able to rebut the presumption available in favour of the complainant with all probabilities, then only onus of proof shifts on the complainant to prove the said fact. But in this case as discussed earlier the defence taken by the accused himself bound to be doubtful. Under this attending circumstances, this court found no much water in the argument of the learned counsel for the accused. Further as argued by the learned counsel for the accused, the contents of Ex.P11 and Ex.D8 are looked into, it is clear that S.Udayakumar and A.R. Vinod Kumar were in the same address. Further the complainant has stated that he does not know A.R. Vinod Kumar who is residing at Chennai. But Ex.P11 disclose that said A.R. Vinod Kumar himself is one of the witnesses to Ex.P11. However on the basis of the said aspects, defence of the accused cannot be accepted in the absence of convincing and acceptable evidence on behalf of the accused, so as to probabilize the contention taken by him. Hence in this angle also this court did not find any substance to accept the defence of the accused. 21. Thus considering the entire oral and documentary evidence, this court is of the considered view that the defences taken by the accused are not acceptable one and it is too remote to accept even probability of the defence as put up by the accused. On the other hand, the complainant has placed sufficient materials to establish his case has put up by him. Thus viewed from any angles, the accused has absolutely failed to prove his defence and thereby to rebut the presumption available in favour of the complainant. Therefore, the materials placed before this court are sufficient to accept the contention of the complainant that the accused had issued cheque in - 8 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 question towards discharge of legally recoverable debt and the complainant has proved all the requirements of Sec.138 of N.I. Act, so as to constitute the offence against the accused as put up by him. Therefore Point Nos. 1 & 2 are required to be answered in affirmative and answered accordingly." 9. Being aggrieved by the same, the accused filed an appeal before the District Court in Criminal Appeal No.25046/2016. 10. 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, by considered judgment dated 24.08.2022 dismissed the appeal of the accused. 11. Being further aggrieved by the same, accused is before this Court. 12. Sri. H.V.Harish, learned counsel for the revision petitioner reiterating the grounds set in the revision petition, vehemently contended that both the Courts have not properly appreciated the defence taken by the accused, that the complainant is a stranger to the accused, and that the cheque which was issued to Uday Kumar, which finds place in Exhibit D1 to D4, is not properly appreciated by both the Courts, - 9 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 resulting in miscarriage of justice and sought for allowing the revision. 13. He would further contend that when there is no transaction at all between the complainant and accused, no preventive value or presumptive value could be attached to Exhibit P1. Therefore, conviction of the accused for the offence under Section 138 of the NI Act in the absence of a legally recoverable debt that existed between the complainant and accused has resulted in a grave miscarriage of justice, and he sought to allow the revision of the petition. 14. Per contra, Smt. Asha representing the counsel for respondents supports the impugned judgments. 15. Having heard the arguments of both sides, this Court perused the material on record meticulously. 16. On such perusal of the material on record, Exhibit P1 is the dishonored cheque, which belongs to the accused. The signature found therein is that of the accused. 17. Admittedly, cheque came to be dishonored with an endorsement "account closed." Why the accused kept that - 10 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 cheque and handed it over to Uday Kumar in a closed account is a question that remains unanswered on behalf of the accused. Further, if it is the case of the accused that the cheque was given to Uday Kumar, the accused, being an advocate, should have taken proper action against Uday Kumar as well as the complainant. 18. No doubt after filing of the case, Uday Kumar died, which could be seen from Exhibit D8. But what prevented the accused from filing a criminal case against the complainant if there was a misuse of the cheque, that too in a sum of Rs.5,00,000/- and the complainant being a stranger is a question that remains unanswered. 19. Taking note of these aspects of the matter, the learned trial Magistrate has discussed at length the probative value of each and every document that is placed on record and has noted that the authors of Exhibits D1 to D4 have not been examined and the dismissal of the two criminal cases filed by Uday Kumar and Anil Kumar is of no consequence while appreciating the case of the parties, especially that which is - 11 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 sought to be the defence of the accused, that the cheque has been misused, which would not be defence of the accused. 20. 20. At any rate, the learned trial Judge formed a definite opinion that the material evidence placed on record in the form of oral testimony of DW1 coupled with the probative value of Exhibit D1 to D8 was not sufficient to rebut the presumption available to the complainant under Section 139 of the NI Act and the complainant having established that there is a loan transaction between the complainant and the accused resulting in issuance of cheque, which came to be dishonored, conviction of the accused for the offence under Section 138 of the NI Act is just and proper. The same has been rightly re- appreciated by the learned Judge in the First Appellate Court. 21. Having regard to the limited revisional powers, this Court does not find any good reasons to revisit into the factual aspects of the matter in upsetting the finding of conviction, finding of the guilt of the accused for the offence under Section 138 of the NI Act and accordingly, conviction is upheld. 22. This would take this Court to the neck limb of argument addressed on behalf of the accused that the - 12 - HC-KAR NC: 2026:KHC:22804 CRL.RP No. 1315 of 2022 imposition of fine of Rs.7,25,000/-, of which, a sum of Rs.7,20,000/- is ordered to be paid as compensation to the complainant is on the higher side, cannot also be countenanced in law as the transaction is of the year 2011 and the matter is now disposed of in the year 2026. No doubt a sum of Rs.5,00,000/- is deposited before the trial Court which has been withdrawn by the complainant in the year 2016. 23. Nevertheless, from the year 2011 to 2016 complainant was denied the benefit of the repayment of the loan amount under Exhibit P1. Therefore, taking note of the interest rate prescribed under Sections 79 and 80 of the NI Act and imposition of fine by Rs.7,25,000/- is just and proper. Accordingly, the following: ORDER Revision Petition is meritless and thereby, dismissed. Sd/- (V SRISHANANDA) JUDGE GJM List No.: 2 Sl No.: 27