Karnataka High Court

G Nagarajappa vs Umesh K V on 15 July, 2025

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                       CRL.RP No. 1090 of 2021


                      HC-KAR




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 15TH DAY OF JULY, 2025

                                              BEFORE
                      THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
                          CRIMINAL REVISION PETITION No. 1090 OF 2021
                      BETWEEN:

                         G NAGARAJAPPA
                         S/O GURUSIDDAPPA
                         AGED ABOUT 48 YEARS
                         NO OCCUPATION
                         INSOLVENT
                         R/O NITTUVALLI
                         DAVANAGERE - 577 002.
                                                                 ...PETITIONER

Digitally signed by
                      (BY SRI REVANNA BELLARY, ADVOCATE)
LAKSHMINARAYANA
MURTHY RAJASHRI       AND:
Location: HIGH
COURT OF
KARNATAKA                UMESH K V
                         S/O K VEERABHADRAPPA
                         AGED ABOUT 49 YEARS
                         AGRICULTURIST
                         R/O EACHGATTA VILLAGE
                         DAVANAGERE TALUK AND DISTRICT - 577 002.
                                                             ...RESPONDENT

                      (BY SRI VIJAYAKUMAR, ADVOCATE)


                           THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
                      SECTION 401 Cr.P.C PRAYING TO SETTING ASIDE THE JUDGMENT
                      DATED 30.11.2020 IN CRL.A.No.131/2018 OF I APPELLATE
                      COURT, I ADDL.DISTRICT AND SESSIONS JUDGE COURT
                      DAVANAGERE AND DATED 16.11.2018 IN C.C.No.1120/2017 OF
                      TRIAL COURT, III ADDL.SENIOR CIVIL JUDGE AND JMFC COURT,
                      DAVANAGERE AND PRAYS FOR ACQUIT THE PETITIONER FOR THE
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                                        NC: 2025:KHC:26095
                                  CRL.RP No. 1090 of 2021


HC-KAR




OFFENCE PUNISHABLE UNDER SECTION 138 OF THE N.I ACT AND
ETC.,

    THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

CORAM:   HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR




                       ORAL ORDER

This criminal revision petition is directed against the

judgment dated 30.11.2020 passed in Crl.A.No.131/2018 by

the I Additional District and Sessions Judge, Davanagere

where under the judgment of conviction dated 16.11.2018

passed in C.C.No.1120/2017 by the III Additional Senior Civil

Judge and JMFC, Davanagere convicting the petitioner for the

offence punishable under Section 138 of the N.I.Act and

sentencing him to undergo simple imprisonment for a period

of six months and to pay a fine of Rs.2,05,000/- and in

default, to undergo simple imprisonment for six months has

been affirmed.

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2. Heard learned counsel for the petitioner and learned

counsel for respondent.

3. The case of the respondent - complainant before the

trial Court was that the accused is the Proprietor of Chandana

Enterprises. The accused was acquainted with the

complainant and he approached the complainant for loan for

his family necessities. On 04.03.2015 complainant lent

Rs.2,00,000/- to the accused and he has issued post dated

cheque bearing No.378183 for Rs.2,00,000/- drawn on

Canara Bank, K.B.Extension, Davanagere. The complainant

presented the said cheque on 07.04.2015 and the same

came to be dishonoured with endorsement as "insufficient

funds." The complainant got issued legal notice on

28.04.2015 demanding payment of cheque amount. The said

notice has been served on the accused. The accused has not

paid the amount of the said cheque nor sent any reply.

Therefore, the complainant had initiated proceedings against

petitioner - accused under Section 138 of the N.I.Act.

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4. The complainant has been examined as PW.1 and got

marked Ex.P1 to P5. The statement of the accused has been

recorded under Section 313 of Cr.P.C. The accused has not

lead any defence evidence. The learned Magistrate after

hearing arguments on both sides has convicted the

petitioner-accused for the offence under Section 138 of the

N.I.Act and sentenced him to undergo simple imprisonment

for six months and to pay of Rs.2,05,000/- with default

sentence. The said judgment of conviction has been

challenged by the petitioner - accused before the Sessions

Court in Crl.A.No.131/2018. The said appeal came to be

dismissed on merits affirming the conviction of the petitioner

for the offence under Section 138 of the N.I.Act and sentence

passed thereon.

5. Learned counsel for the petitioner would contend that

the petitioner has taken up defence that he had given cheque

to one Naganna, LIC agent for security while borrowing

Rs.10,000/- and the said Naganna has demanded higher

interest and did not return the cheque and the said cheque

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has been misused through this complainant. The said defence

has been suggested to PW.1 in his cross-examination. The

complainant being a LIC agent is not having capacity to lend

Rs.2,00,000/-. Without considering this aspect the learned

Magistrate erred in convicting the petitioner and the learned

Sessions Judge has erred in affirming the judgment of

conviction and order of sentence passed by the trial Court.

6. Learned counsel for the respondent has supported

the reasons assigned by the trial Court and the appellate

Court and prayed for dismissal of revision petition.

7. Having heard learned counsels this Court has

perused the impugned judgments and trial Court records and

appellate Court records.

8. It is the specific case of the respondent - complainant

that petitioner-accused borrowed Rs.2,00,000/- on 4.3.2015

and issued post dated cheque for making repayment of the

amount borrowed and the said cheque on presentment has

been dishonoured. The petitioner - accused has admitted his

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signature on the cheque and therefore, the presumption

under Section 139 of the N.I.Act arises that the cheque is

issued for discharge of debt. The said presumption is

rebuttable presumption. The standard of proof for rebutting

the said presumption is that of preponderance of probability.

9. The petitioner - accused has taken up defence that

he had given cheque - Ex.P1 to one Naganna who was LIC

agent at the time of borrowing Rs.10,000/- and he has

misused the same through this complainant. The said

defence has been put to PW.1 in his cross-examination by

way of suggestion. PW.1 has denied the suggestion. Except

the said suggestion, there is no other material placed on

record to establish the said defence, more so, petitioner -

accused has not sent reply to the legal notice even though it

is served on him. Considering the said aspect, the petitioner

- accused has failed to rebut the presumption drawn under

Section 139 of the N.I.Act. What is the consequence of non

rebuttable presumption has been considered by the Hon'ble

Apex Court in the case of Kalamani tex and Another Vs.

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P Balasubramanian, reported in 2021 (5) SCC 283

wherein it is held as under:

"13. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat in the following words:

"18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the

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onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant accused."

10. The Hon'ble Apex Court in the case of Rajesh

Jain Vs. Ajay Singh reported in AIR Online 2023 SC

807 has held as under:

"55. As rightly contended by the appellant, there is a fundamental flaw in the way both the Courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the

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Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly."

11. Learned counsel for the petitioner has placed

reliance on the decision of the Hon'ble Apex Court in the case

of Rangappa Vs. Sri Mohan (Crl.A.No.1020/2010

disposed on 07.05.2010). In the said case, the Hon'ble

Apex Court has held that the accused has to prove his

probable defence in order to rebut the presumption drawn

under Section 139 of the N.I.Act. The said decision is not of

any help to the petitioner-accused as the petitioner-accused

has failed to rebut the presumption by establishing his

probable defence.

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