Karnataka High Court
Sri. Jagadish. K. C vs Sri. Harish on 1 April, 2025
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CRL.RP No. 954 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2025
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO. 954 OF 2022
(397(Cr.PC) / 438(BNSS))
BETWEEN:
SRI. JAGADISH.K.C
S/O CHIKKANNA,
AGED ABOUT 35 YEARS,
KANUVANAHALLI VILLAGE,
SOLADEVANAHALLI POST,
NELMANGALA TALUK,
BANGALORE RURAL DISTRICT-562 127.
...PETITIONER
(BY SRI. BASAVARAJA H T, ADVOCATE)
AND:
Digitally
signed by
REKHA R
SRI. HARISH
Location:
High Court S/O BASAVARAJU,
of
Karnataka AGED ABOUT 35 YEARS,
R/AT NO. 108/4, 4TH 'E' CROSS,
2ND MAIN ROAD,
SOLLAPURADAMMA LAYOUT,
SUNKADAKATTE,
BENGALURU-560 091.
...RESPONDENT
(BY SRI. VENKATESH C R, ADVOCATE)
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CRL.RP No. 954 of 2022
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY
THE ADVOCATE FOR THE PETITIONER PRAYING TO SET
ASIDE THE CONVICTION AND SENTENCE PASSED BY THE
COURTS BELOW i.e THE LXIX ADDL.CITY CIVIL AND
SESSIONS COURT (CCH-70) BENGALURU IN
CRL.A.NO.468/2019 DATED 07.06.2022 AND THE XXII
A.C.M.M., NRUPATHUNGA ROAD, BENGALURU CITY IN
C.C.NO.21197/2015, DATED 28.01.2019 AND ALLOW THE
PETITION BY ACQUITTING THE RP/ACCUSED.
THIS PETITION, COMING ON FOR HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
ORAL ORDER
In this petition filed under Section 397 r/w 401
Cr.P.C, petitioner who is accused has challenged his
conviction and sentence for the offence punishable under
Section 138 of N.I. Act, passed by the trial Court, which
came to be confirmed by the Sessions Court by dismissing
the appeal filed by him.
2. For the sake of convenience, parties are
referred to by their ranks before the trial Court.
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3. Complainant filed the complaint alleging that he
and accused are friends since 7-8 years. Accused is
working as a lorry driver and also doing sand business.
Complainant is also doing sand business and owning a
lorry. During 2014-2015 accused suffered loss. In the last
week of May 2015, he requested the complainant for hand
loan of Rs.6,00,000/-. However, complainant was able to
lend him only Rs.5,00,000/- i.e., on 01.06.2015,
complainant withdrew Rs.2,50,000/- and by collecting
Rs.50,000/- from his friend, complainant lent
Rs.3,00,000/- to the accused on 01.06.2015. In the 3rd
week of June 2015 at the request of accused, complainant
withdrew Rs.2,00,000/- on 22.06.2015 from his account
and paid the same to the accused.
3.1 Accused assured complainant that he will repay
the first loan within one month and second loan within 15
days. However, after expiry of the said time, when
complainant requested and demanded accused to return
the money, he avoided and ultimately issued 2 cheques
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dated 08.07.2015 for Rs.3,00,000/- and Rs.2,00,000/-
with an assurance of encashment. However, when
complainant presented them for realization, they were
returned dishonoured for "funds insufficient". Complainant
got issued legal notice dated 04.08.2015. It is served on
the accused on 12.08.2015. Despite the same, accused
has neither paid the amount due nor sent any reply and
hence, the complaint.
4. After due service of summons, accused
appeared before the trial Court and resisted the complaint
by pleading not guilty.
5. In support of his case, complainant got himself
examined as PW-1 and one witness as PW-2 and got
marked Exs.P1 to 13.
6. During the course of his statement under
Section 313 Cr.P.C, accused has denied the incriminating
evidence led by the complainant.
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7. Accused has also led defence evidence by
examining himself as DW-1 and got marked Exs.D1 to 3.
8. At the first instance, vide judgment and order
dated 06.10.2016, though the trial Court convicted the
accused, it sentenced him to pay fine of Rs.5,000/- and
awarded compensation in a sum of Rs.25,000/- with
interest at 6% p.a.
9. Aggrieved by the same, the complainant
approached Sessions Court in Crl.A.No.1340/2016. It was
allowed and the case was remanded to the trial Court for
fresh disposal in accordance with law.
10. After remand, the trial Court convicted the
accused and sentenced him to pay fine with default
sentence of imprisonment. Accused challenged the same
before the Sessions Court in Crl.A.no.468/2019, which
came to be dismissed, thereby confirming the judgment
and order of the trial Court.
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11. Aggrieved by the concurrent findings, accused
has filed this petition contending that the impugned
judgment and order of trial court as well as Sessions Court
are not only erroneous, illegal, but an outcome of non
application of mind and are liable to be set aside. Accused
had availed hand loan of Rs.25,000/- from the
complainant during 2011 for admission of his children to
school. At that time, he had given blank signed cheques.
Though he repaid the said amount with interest, accused
failed to return the cheques. Misusing the same,
complainant has filed the complaint. Legal notice was not
sent to the address of the accused and as such it is not
served on him.
11.1 After the remand to improve his case, the
complainant has examined PW-2. The evidence of PWs-1
and 2 are contradict each other. Accused was working as a
driver and he was never in need of huge amount of
Rs.5,00,000/-. The trial Court and Sessions Court have not
appreciated the evidence in proper perspective. The
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complainant has failed to prove his financial capacity to
lend such huge sum. Viewed from any angle, the
impugned judgment and order are not sustainable and
hence, the petition.
12. On the other hand, learned counsel for
complainant supported the impugned judgment and order
passed by the trial Court as well as the Sessions Court and
sought for dismissal of the petition.
13. In support of his argument, learned counsel has
relied upon the decision in Rajesh Jain Vs. Ajay Singh
(Rajesh Jain)1
14. Heard arguments of both sides and perused the
record.
15. Thus, complainant has prosecuted the accused
on the allegations that he borrowed a sum of
Rs.5,00,000/- from him by way of hand loan, and the
(2023) 10 SCC 148 : AIR Online 2023 SC 807
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cheques issued towards repayment of the same are
dishonored for want of sufficient funds. Accused admit that
the cheques in question are drawn on his account and they
bear his signature. However, he has disputed that he
borrowed Rs.5,00,000/- from the accused and issued the
subject cheques towards the payment of the same. On the
other hand, he has contended that during 2011, he had
borrowed a sum of Rs.25,000/- for the purpose of paying
fees of children and even though he has repaid the said
amount with interest complainant failed to return the
blank cheques and misusing the same he has filed this
complaint. He has also disputed that the legal notice is
served on him. On the other hand, he has claimed that
when the legal notice was sent, he was not staying in the
address to which it is sent. He has also disputed the
financial capacity of the complainant to lend him
Rs.5,00,000/-.
16. Having regard to the fact that the cheques are
drawn on the account of the accused maintained with his
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banker and they bear his signature, presumption and
Section 139 of the N.I Act comes to play, placing the initial
burden on the accused to establish that the cheques were
not issued towards repayment of any legally recoverable
debt or liability and on the other hand, the circumstances
in which they have reached the hands of accused. Only
after he is able to rebut the presumption, the burden shifts
on the complainant to prove his case, including his
financial capacity.
17. At the outset, it is necessary to examine
whether legal notice is served on the accused. It is
pertinent to note that the legal notice is sent to the same
address of the accused as specified in the complaint. In
fact, the summons is served on the accused to the same
address. The order passed by the trial Court indicate that
on 30.10.2015, summons was issued to the accused
returnable by 13.11.2015. The order sheet dated
13.11.2015 states that summons served on the accused
through RPAD and acknowledgement is received. Since on
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that day, accused failed to appear before the Court, a
Non-bailable warrant was issued returnable by
11.12.2015. Before the warrant could be executed, on
11.12.2015 accused voluntarily appeared before the Court
and secured bail.
17.1 Only in Crl.A.No.468/19 and present petition
filed by him, the accused has given his address as a
resident of Kanuvanahalli, Soladevanahalli Post,
Nelamangala. In fact, the legal notice sent to the accused
to the address given in the complaint is served as per the
acknowledgement at Ex.P7. The legal notice is not
returned on the ground that the address is not residing in
the said address. The acknowledgement bears the LTM of
Bettamma. During his cross-examination, the accused has
stated that Bettamma is his grandmother. Complainant
has relied upon Exs.P11 and 13 to show that the address
given therein is that of the father-in-law the accused and
he was staying in the house of his father-in-law in the
address to which the legal notice was sent and it is
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received by his grandmother. The accused has relied upon
Exs.D1 and D2 which are Aadhar card of accused and rent
agreement. In Ex.D1, his address is given as
Kanuvanahalli whereas in Ex.D2, the address of the
property lent is given as Guddemaranahalli, Magadi.
Except these two documents, the accused has not
produced any other documents such as rent receipt or any
postal correspondence to show that when the legal notice
was sent, he was residing in these addresses.
17.2 Moreover, under Section 27 of the General
Clauses Act, when any Central Act or Regulation made
after the commencement of the General Clauses Act,
authorizes or requires any document to be served by post,
whether the expression service or either of the
expressions give or send, or any other expression is used,
then, unless a different intention appears, the service shall
be deemed to be effected by properly addressing, pre-
paying and posting by registered post, a letter containing
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the document, and, unless the contrary is proved, to have
been effected at the time at which the letter would be
delivered in the ordinary course of the post.
17.3 In the light of the presumption under Section
27 of the General Clauses Act, the burden is on the
accused to prove that the notice is not served on him.
Accused could have examined the postman to rebut the
presumption that there is due service of notice. Thus the
complainant has proved that there is due service of legal
notice. Admittedly, the accused has not sent any reply to
the legal notice coming up with a specific defence at the
earliest available opportunity.
18. In order to rebut the presumption under Section
139 of the N.I. Act, the accused has taken a defence that
during 2011, he had borrowed a sum of Rs.25,000/- from
the complainant and had issued 2 signed blank cheques by
way of security and even though he repaid the said loan
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with interest, accused did not return the cheques and has
misused them to file this complaint. During the cross-
examination of PW-1 a suggestion is made to complainant
that accused had borrowed Rs.25,000/- in 2010. In
support of this defence, the accused has relied upon Ex.D3
which is copy of application dated 03.08.2016 given under
Karnataka Right to Education Act. In this document, the
date of birth of the child is given as 10.11.2011. If the
child was admitted to the school as per Ex.D3 in 2016,
how can it be accepted that he had borrowed loan of
Rs.25,000/- in 2010 or 2011 for admitting the child to
school in the year 2016. He has not produced any
documents such as fees receipt, etc to show that during
2011, he borrowed Rs.25,000/- and spent the same for
admission of his child to the school in 2016. This Court has
no hesitation to hold that accused has taken up a false
defence and has failed to prove the same.
19. However, even if it is accepted that the cheques
were issued by the accused as a security for the loan of
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Rs.25,000/- taken in 2010 or 2011 and that he had repaid
the same, there was no impediment for the accused to
take back the cheques. Even where it is accepted that,
complainant had intentionally not returned the cheques,
there was no impediment for the accused to instruct the
bank to stop payment, specifying the reasons. The
accused has not availed this option.
20. At the same time, the accused has also
challenged the financial capacity of complainant to lend
him Rs.5,00,000/-. In order to discharge this burden, the
complainant has produced his account extracts at Exs.P8
and 9, according to which he has withdrawn Rs.2.5 lakhs
on 01.06.2015 and Rs.2 lakhs on 22.06.2015.
Complainant has specifically claimed that he borrowed
remaining Rs.50,000/- from his friend i.e., PW-2,
Gangaraju and paid in all Rs.5,00,000/- to the accused.
PW-2 has deposed to this effect. Despite lengthy cross-
examination of PWs-1 and 2, the accused has failed to
convince the Court that the evidence of PWs-1 and 2 is not
reliable.
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21. While the accused has failed to rebut the
presumption through oral and documentary evidence on
record, the complainant has proved that accused had
borrowed Rs.5,00,000/- and the cheques were issued
towards repayment of the said loan. Appreciating the oral
and documentary evidence placed on record, the trial
Court as well as the Session Court have come to a correct
conclusion and accepted the case of the complainant and
rejected the defence of the accused. The conclusions
arrived at and findings given by them are consistent with
the evidence on record and this Court finds no perversity
calling for interference. In the result, the petition fails and
accordingly the following:
ORDER
1. Petition filed by the accused under
Section 397 r/w 401 Cr.P.C is hereby
dismissed.
2. The impugned judgment and order dated
28.01.2019 in CC.No.21197/2015 on the
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file of XXII ACMM, Bengaluru and
judgment and order dated 07.06.2022 in
Crl.A.No.468/2019 on the file of LXIX
Addl.City Civil and Sessions Judge (CCH-
70), Bengaluru, are confirmed.
3. The Registry is directed to return the trial
Court as well as Sessions Court records
along with a copy of this order forthwith.
Sd/-
(J.M.KHAZI)
JUDGE
RR
