Karnataka High Court
R. Dinesh vs B.K.Roopesh Kumar @ B.K.Ranganath on 5 January, 2024
-1-
NC: 2024:KHC:638
CRL.RP No. 394 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL REVISION PETITION NO.394 OF 2020
BETWEEN:
R. DINESH
S/O M. RAMAIAH
AGED ABOUT 53 YEARS
R/AT NO.59, 4TH 'A' CROSS
HOSAHALLI, VIJAYANAGARA
PIPE LINE
BENGALURU-560 040.
AND ALSO AT
R. DINESH
C/O SURAKSHITH CONSTRUCTIONS,
NO.214, 8TH MAIN, BHAVANI NAGAR
RAILWAY HOUSING LAYOUT, NEAR RTP OFFICE
MALLATHAHALLI
BENGLAURU-560 056.
...PETITIONER
(BY SRI KARTHIK YADAV U., ADVOCATE)
Digitally
signed by AND:
VINUTHA M
Location: B.K.ROOPESH KUMAR @ B.K.RANGANATH
HIGH AGED ABOUT 61 YEARS
COURT OF R/AT NO.234, 14TH CROSS
KARNATAKA M.C. LAYOUT, VIJAYANAGAR
BENGALURU-560 040.
...RESPONDENT
(BY SRI H.S. SOMNATH, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SEC.401 CR.P.C PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 16.07.2018 PASSED IN C.C.NO.17098/2015 BY THE XXIII
A.C.M.M., BENGALURU AND JUDGMENT DATED 10.02.2020, PASSED
IN CRL.A.NO.1581/2018 BY THE LXIV ADDITIONAL CITY CIVIL AND
-2-
NC: 2024:KHC:638
CRL.RP No. 394 of 2020
SESSIONS JUDGE (CCH-65), BENGALURU BY ALLOWING THIS
REVISION PETITION AND CONSEQUENTLY DISMISS THE COMPLAINT
AND CONSEQUENTLY ACQUIT THE ACCUSED/PETITIONER OF THE
CHARGE LEVELLED AGAINST HIM IN C.C.NO.17098/2015 ON THE
FILE OF THE XXIII A.C.M.M., BENGALURU.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 19-12-2023, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
Heard Sri. Karthik Yadav. U, learned counsel for the
petitioner and Sri. H.S. Somanath, learned counsel for the
respondent.
2. The petitioner- accused has preferred this criminal
revision petition under Section 397 read with Section 401 of the
Code of Criminal Procedure, 1973 praying to set aside the
judgment of conviction and order of sentence dated 16.07.2018
passed by the XXIII ACMM, Bengaluru in C.C.No.17098/2015
and judgment dated 10.02.2020 passed by the LXIV Additional
City Civil and Sessions Judge, Bengaluru(CCH-65) in
Crl.A.No.1581/2018, wherein both the Courts passed
concurrent findings against the petitioner/accused and
convicted the accused for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as 'N.I. Act' for short).
NC: 2024:KHC:638
3. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court. The
petitioner is the 'accused' and the respondent is the
'complainant' before the trial Court.
4. The brief facts of the complainant's case are as
under:-
The complainant filed a private complaint under Section
200 of Cr.P.C. for the offence punishable under Section 138 of
the N.I. Act contending that the accused and complainant are
known to each other. During the month of January 2015, the
accused and his wife Smt. Saroja approached the complainant
and his wife for financial assistance as the accused was in dire
necessity of money and he also intended to sell his house, thus,
the accused offered the complainant and his wife to purchase
his property, accordingly, the complainant and his wife agreed
to purchase the property. However, prior to execution of the
sale agreement, the accused insisted the complainant and his
wife to pay a sum of Rs.13.00 lakhs to him as he was bound to
discharge certain financial liabilities. Accordingly, the
complainant and his wife paid a sum of Rs.13.00 lakhs towards
NC: 2024:KHC:638
advance sale consideration, out of which, a sum of Rs.1.00 lakh
was paid through cheque bearing No.47553 dated 13.01.2015
drawn on Corporation Bank, Nrupathunga Road Branch,
Bengaluru in favour of the accused and a sum of
Rs.5.00 lakh and Rs.7.00 lakh respectively dated 24.01.2015
and 25.01.2015 drawn on Corporation Bank, RPC Layout
Branch, Bengaluru in favour of wife of the accused. Later, the
accused and his wife failed to execute the agreement of sale in
favour of the complainant inspite of several requests and
reminders and finally the accused declined to execute the sale
agreement in favour of the complainant and also did not return
the advance sale consideration. Finally, on 10.05.2015, the
accused issued a cheque for a sum of Rs.1.00 lakh drawn on
Janatha Seva Cooperative Bank Limited, Vijaynagar, Bengaluru
and on being presentation of the cheque, it was returned with a
shara 'funds insufficient' in the account of the accused. On
26.05.2015, the complainant issued a legal notice calling upon
the accused to pay the amount due under the cheque. Inspite
of service of notice, the accused failed to pay the amount due
under the cheque. Hence, the complainant filed a private
NC: 2024:KHC:638
complaint under Section 200 of Cr.P.C., against the accused for
the offence punishable under Section 138 of the N.I. Act.
5. After institution of the complaint, the trial Court
recorded the sworn statement of the complainant, took
cognizance under Section 190(1)(a) of Cr.P.C., secured the
presence of the accused and recorded the plea of the accused;
accused pleaded not guilty and claimed to be tried.
6. The complainant in order to prove his case examined
himself as PW-1 and got marked nine documents as per Exs.P1
to P9. In order to rebut the claim of the complainant, the
accused examined himself on oath as DW-1.
7. On the basis of the oral and documentary evidence,
the trial Court convicted the accused for the offence punishable
under Section 138 of the Act and sentenced him to pay a fine of
Rs.1,00,000/- with interest at 18% p.a. from 23.06.2015 till its
realization with default imprisonment for six months.
8. Aggrieved by the judgment of conviction and order of
sentence passed by the trial Court, the accused preferred an
appeal in Crl.A.No.1581/2018 before the learned LXIV
Additional City Civil and Sessions Judge, Bengaluru. In turn,
NC: 2024:KHC:638
the First Appellate Court dismissed the appeal filed by the
accused and thereby, confirmed the judgment and conviction
passed by the trial Court.
9. Aggrieved by the concurrent findings passed by the
trial Court as well as First Appellate Court, the accused has filed
this petition.
10. It is contended by learned counsel for the petitioner
that the judgment of conviction and order of sentence passed
by both the Courts is against the settled principles of law; both
the Courts have failed to understand and appreciate the
provisions of law as required under Section 138 of N.I. Act; the
complainant failed to prove beyond reasonable doubt that the
cheque in question was issued towards legally enforceable debt
or liability in order to attract Section 138 of the Act. It is
further contended that the accused and the complainant
entered into an agreement of sale in respect of purchase of
house of the accused and in the agreement, there was
forfeiture clause viz., in case if the complainant fails to
purchase the house property, the accused would be at liberty to
forfeit the advance sale consideration; as the complainant failed
NC: 2024:KHC:638
to perform his part of the contract, the accused forfeited the
advance sale consideration as agreed between the parties, and
hence, the accused is not liable to pay any amount due under
the cheque and therefore, there was no legally recoverable
debt. Hence, prayed to allow the petition.
11. Learned counsel for the respondent contended that
both the courts have given concurrent findings and the
petitioner is convicted for the offence under section 138 of N.I.
Act. The complainant has proved his case beyond doubt; hence,
both the courts have drawn presumption under section 139 of
N.I. Act. It is contended that if agreement of sale was
executed between the parties, the accused ought to have
placed the same before the trial court and he ought to have
forfeited the amount. But, the accused has not placed any such
agreement to substantiate that there was forfeiture clause in
the agreement to forfeit the advance amount. Hence, learned
counsel justified the judgment of conviction and sentence
passed by both the courts and prayed for dismissal of the
revision petition.
NC: 2024:KHC:638
12. On the basis of the submissions made by the parties
to the lis, the following points would arise for consideration of
this court:-
1. Whether the accused proved that the judgment
of conviction and order of sentence passed by
the trial Court as well as First Appellate Court
is perverse and calls for interference by this
Court?
2. What order?
My answer to the above points is as under:
Point No.1: In the negative
Point No.2: As per the final order for the following reasons:
Point Nos.1 and 2: It was the case of complainant that,
accused borrowed a sum of Rs.13.00 lakhs from him in order to
discharge his financial needs and when the accused failed to
perform his obligation, the complainant insisted him to return
the amount or to execute the agreement of sale and when
accused neither executed the agreement of sale nor returned
the sum of Rs.13.00 lakhs, the accused issued a cheque for a
NC: 2024:KHC:638
sum of Rs.1.00 lakh as per Ex.P1, and on being presented, it
was dishonored. On the other hand, the accused has denied
the allegations made in the complaint. The complainant, in
order to establish his claim, examined himself on oath as PW-1
and got marked in all 09 documents as per Exs.P1 to P9. Ex.P1
is the Cheque, Ex.P2 is the Bank endorsement, Ex.P3 is the
legal notice, Exs.P4 and P5 are the postal receipts, Ex.P6 is the
postal acknowledgement, Ex.P7 is the unserved RPAD cover,
Ex.P8 is the receipt and Ex-P9 is the certified copy of
statement.
13. On perusal of the oral testimony of PW-1, contents of
Ex.P1 - cheque and Ex.P3 - legal notice, it appears that the
accused offered the complainant to purchase his house and
there was an oral agreement between the parties, accordingly,
the accused borrowed a sum of Rs.13.00 lakhs for his urgent
needs in order to discharge his financial needs and later the
accused failed to perform his obligation, accordingly, the
complainant insisted him to return the amount or to execute
the agreement of sale in respect of house property, but, the
accused neither executed the agreement of sale nor returned
the sum of Rs.13.00 lakhs, hence, he issued a cheque for a
- 10 -
NC: 2024:KHC:638
sum of Rs.1.00 lakh and instructed him to present the cheque
on a particular date and accordingly on 25.05.2015, the
complainant presented the cheque, the same was returned with
a shara 'insufficient funds' in the account of the accused,
therefore a legal notice was issued to the accused and inspite
of issuance of legal notice, the accused failed to pay the
amount due under the cheque. The accused has not disputed
the issuance of cheque and his signature found in Ex-P1. To
substantiate such contention, the accused examined himself as
DW-1 and denied the transaction.
14. On perusal of the material available on record, it
appears that the accused does not dispute the issuance of
cheque and nature of the transaction. However, he has taken
up the contention that there was forfeiture clause in the
agreement to forfeit the advance amount paid by the
complainant, which goes to show that the accused has
admitted the transaction and the issuance of cheque.
Therefore, the complainant has complied the legal requirements
of section 138 of N.I. Act. Now the burden shifts on the accused
to disprove the case of the complainant, but to rebut the
burden, the accused has not placed any material to
- 11 -
NC: 2024:KHC:638
substantiate his contention. Again the fact remains that the
accused has not discharged the transaction amount borrowed
from the complainant and he has not placed any material to the
effect that he has discharged the loan or forfeited the amount
received from the complainant. The accused has not placed any
material to show that the cheque was not issued towards
legally enforceable debt. On the contrary, the complainant has
proved that Ex-P1 cheque was issued by the accused towards
discharge of legally enforceable debt i.e., towards purchase of
house property by him. In this regard, the accused has not
placed any contra evidence to disbelieve the case of the
complainant.
15. In this regard, learned counsel for the petitioner
relied upon the decision in the case of RAJESH JAIN v. AJAY
SINGH reported in Spl. Leave petition No.12802/2022 dated
09.10.2023 wherein at paras 34, 40 to 45, it is held as under:-
34. The NI Act provides for two presumptions:
Section 118 and Section 139. Section 118 of the Act
inter alia directs that it shall be presumed, until the
contrary is proved, that every negotiable instrument
was made or drawn for consideration. Section 139 of
the Act stipulates that 'unless the contrary is proved,
it shall be presumed, that the holder of the cheque
received the cheque, for the discharge of, whole or
- 12 -
NC: 2024:KHC:638
part of any debt or liability'. It will be seen that the
'presumed fact' directly relates to one of the crucial
ingredients necessary to sustain a conviction under
Section 138.
xxxxxxxxx
40. The standard of proof to discharge this evidential
burden is not as heavy as that usually seen in
situations where the prosecution is required to prove
the guilt of an accused. The accused is not expected
to prove the non-existence of the presumed fact
beyond reasonable doubt. The accused must meet the
standard of 'preponderance of probabilities', similar to
a defendant in a civil proceeding. [Rangappa vs.
Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to
the contrary, it is open to the accused to raise a
probable defence wherein the existence of a legally
enforceable debt or liability can be contested. The
words 'until the contrary is proved' occurring in
Section 139 do not mean that accused must
necessarily prove the negative that the instrument is
not issued in discharge of any debt/liability but the
accused has the option to ask the Court to consider
the non-existence of debt/liability so probable that a
prudent man ought, under the circumstances of the
case, to act upon the supposition that debt/liability
did not exist. [Basalingappa Vs. Mudibasappa (AIR
2019 SC 1983) See also Kumar Exports Vs. Sharma
Carpets (2009) 2 SCC 513]
42. In other words, the accused is left with two
options. The first option-of proving that the
debt/liability does not exist-is to lead defence
evidence and conclusively establish with certainty that
the cheque was not issued in discharge of a
debt/liability. The second option is to prove the non-
existence of debt/liability by a preponderance of
probabilities by referring to the particular
circumstances of the case. The preponderance of
probability in favour of the accused's case may be
- 13 -
NC: 2024:KHC:638
even fifty one to forty nine and arising out of the
entire circumstances of the case, which includes: the
complainant's version in the original complaint, the
case in the legal/demand notice, complainant's case
at the trial, as also the plea of the accused in the
reply notice, his 313 statement or at the trial as to
the circumstances under which the promissory
note/cheque was executed. All of them can raise a
preponderance of probabilities justifying a finding that
there was 'no debt/liability'. [Kumar Exports and
Sharma Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the
evidential burden need not necessarily be direct
evidence i.e., oral or documentary evidence or
admissions made by the opposite party; it may
comprise circumstantial evidence or presumption of
law or fact.
44. The accused may adduce direct evidence to prove
that the instrument was not issued in discharge of a
debt/liability and, if he adduces acceptable evidence,
the burden again shifts to the complainant. At the
same time, the accused may also rely upon
circumstantial evidence and, if the circumstances so
relied upon are compelling the burden may likewise
shift to the complainant. It is open for him to also rely
upon presumptions of fact, for instance those
mentioned in Section 114 and other sections of the
Evidence Act. The burden of proof may shift by
presumptions of law or fact. In Kundanlal's case-
(supra) when the creditor had failed to produce his
account books, this Court raised a presumption of fact
under Section 114, that the evidence, if produced
would have shown the non-existence of consideration.
Though, in that case, this Court was dealing with the
presumptive clause in Section 118 NI Act, since the
nature of the presumptive clauses in Section 118 and
139 is the same, the analogy can be extended and
applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the
accused adduces evidence to the satisfaction of the
- 14 -
NC: 2024:KHC:638
Court that on a preponderance of probabilities there
exists no debt/liability in the manner pleaded in the
complaint or the demand notice or the affidavit-
evidence, the burden shifts to the complainant and
the presumption 'disappears' and does not haunt the
accused any longer. The onus having now shifted to
the complainant, he will be obliged to prove the
existence of a debt/liability as a matter of fact and his
failure to prove would result in dismissal of his
complaint case. Thereafter, the presumption under
Section 139 does not again come to the complainant's
rescue. Once both parties have adduced evidence, the
Court has to consider the same and the burden of
proof loses all its importance. [Basalingappa vs.
Mudibasappa, AIR 2019 SC 1983; See also, Rangappa
vs. Sri Mohan (2010) 11 SCC 441] Our Analysis."
16. In view of the facts, circumstances and the decision
cited supra, it appears that, the case set up by the accused is
riddled with contradictions. It is apparent on the face of the
record that there is not the slightest of credibility perceivable in
the defence set up by the accused. Further, nothing significant
has been elicited in the cross examination of the complainant to
raise any suspicion in the case set up by the complainant.
Other than some minor inconsistencies, the case of the
complainant has been consistent throughout, as can be noticed
from perusal of the complaint, demand notice and the affidavit
evidence. In the absence of rebuttal evidence, the accused has
failed to prove the non-existence of liability.
- 15 -
NC: 2024:KHC:638
17. When the execution of Negotiable instrument, passing
of consideration and signature found on Ex-P1 is admitted, the
court may draw presumption under section 118 of N.I. Act and
the court shall draw presumption under section 139 of N.I. Act
in favour of holder of the Negotiable Instrument.
18. In the instant case, the transaction and the issuance
of cheque is not in dispute. On the contrary, the accused has
taken up the contention that he has forfeited the advance
amount paid by the complainant on account of failure on the
part of the complainant, but, he has not placed any documents
to substantiate his contention.
19. If the cheque is issued in relation to legally
recoverable debt, it is to be construed that the same is issued
towards legally enforceable debt or liability. There is
presumption that if the Negotiable Instrument is supported by
consideration, the court shall draw presumption under the
provisions of N.I. Act. It was in this connection, that the cheque
in question was issued and when it was dishonoured, the
complainant had to initiate action under section 138 of N.I. Act.
Therefore, the cheque was issued in connection with legally
- 16 -
NC: 2024:KHC:638
enforceable debt. The argument of Sri. Karthik Yadav, for these
reasons cannot be accepted and therefore, this petition fails
and it is liable to be dismissed.
Hence, I proceed to pass the following:-
ORDER
1. The revision petition filed by the petitioner is
dismissed.
2. The judgment of conviction and order of sentence
dated 16.07.2018 passed in C.C.No.17098/2015 by
XXIII Addl. CMM, Bengaluru as well as first
appellate court in Crl.A.No.1581/2018 dated
10.02.2020 is confirmed.
Sd/-
JUDGE
MN
