Karnataka High Court
S Ramchandrappa vs N Srinivasa Murthy on 1 July, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.RP No. 1020 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL REVISION PETITION No. 1020 OF 2017
BETWEEN:
S RAMCHANDRAPPA
S/O LATE SONNAPPA
AGED ABOUT 73 YEARS,
R/AT No.56, KATTERAMA TEMPLE STREET
THANISANDRA, SHIVARAMA
KARANTHA NAGAR POST
BENGALURU - 560 077.
(DIED ON 11.11.2021)
SINCE DEAD BY HIS LR
R. PRAKASH,
S/O LATE S. RAMACHANDRAPPA
AGED ABOUT 55 YEARS,
R/O No. 156, KATTERAMMA TEMPLE STREET
THANISANDRA, SHIVARAMA KARANTHA
NAGAR POST
BENGALURU - 560 077.
Digitally signed by (AMENDED AS PER THE ORDER DATED 11/11/2022)
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH ...PETITIONER
COURT OF
KARNATAKA
(BY SRI J S HALASHETTI, ADVOCATE)
AND:
N SRINIVASA MURTHY
S/O LATE NAWRASAPPA
AGED ABOUT 71 YEARS
R/AT No.1246, 7TH "B" CROSS
YELAHANKA NEW TOWN
BENGALURU - 560 064.
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CRL.RP No. 1020 of 2017
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SINCE DEAD BY HIS LR
DR. SANJAY S
S/O LATE SRINIVASA MURTHY
AGED ABOUT 48 YEARS
R/O No.47/1, VEERASAGARA
BYLAKERE MAIN ROAD, ATTURU POST
YELAHANKA - 560 064.
...RESPONDENT
(BY SRI ABHILASH H S, ADVOCATE)
THIS CRL.RP IS FILED UNDER 397 READ WITH SECTION
401 Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED
26.3.2015 PASSED BY THE XVIII A.C.M.M., BENGALURU IN
C.C.No.2430/2009 CONVICTING THE PETITIONER FOR THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE
INSTRUMENTS ACT AND SENTENCING HIM TO PAY A FINE OF
RS.25,30,000/- (RUPEES TWENTY FIVE LAKHS AND THIRTY
THOUSAND ONLY) AND IN DEFAULT TO UNDERGO S.I. FOR 1
YEAR AND JUDGMENT DATED 24.8.2017 PASSED BY THE LXVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGES, BENGALURU
CITY (CCH-67) IN CRL.A.No.608/2015 THAT CONFIRMED THE
ORDER OF TRIAL COURT AND ETC.,
THIS PETITION COMING ON FOR DICTATING ORDER
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
This revision petition is directed against the
judgment dated 24.08.2017 passed in Crl.A.No.608/2015
by the LXVI Additional City Civil and Sessions Judge,
Bangalore City where under the judgment of conviction
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dated 26.03.2015 passed in C.C.No2430/2009 by the
XVIII ACMM, Bengaluru convicting the petitioner for the
offence punishable under Section 138 of the N.I.Act and
sentenced to pay fine of Rs.25,30,000/- and in default to
undergo simple imprisonment for one year has been
affirmed.
2. Heard learned counsel for the petitioner and
learned counsel for the respondent.
3. It was the case of respondent - complainant
before the trial Court that petitioner - accused has
negotiated with the respondent - complainant to purchase
the complainant's property situated at Kattigenahalli
Village, Jala Hobli, Bangalore North Taluk for a total
consideration of Rs.1.10 Crores. In pursuance of the
contract, an agreement of sale was got executed and
registered on 05.07.2007 and the complainant has
executed power of attorney in favour of sons of accused
R.Prakash and R.Somesh. At the time of execution of
GPA, the petitioner - accused has expressed his financial
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constraints and sought for hand loan of Rs.35,00,000/-
from the complainant. Accused promised to repay the said
amount within 23 months. The complainant believed the
words of accused and advanced Rs.35,00,000/- as hand
loan to the accused. In order to repay the amount
borrowed the accused said to have issued four post dated
cheques in favour of the complainant dated 05.09.2007 for
Rs.10,00,000/- and Rs.5,00,000/- and another two
cheques dated 05.10.2007 for Rs.10,00,000/- each drawn
on State Bank of Mysore, HRBR Layout Branch, Bangalore.
During August 2007 the accused had requested the
complainant to present the cheques in the month of march
2008. The complainant presented cheque Nos.954076 and
954077 issued for Rs.10,00,000/- and Rs.5,00,000/- and
as per memo dated 04.03.2008, both the cheques were
returned with endorsement "funds insufficient." The
complainant has also presented other two cheques bearing
Nos.954078 and 954079 dated 05.10.2007 and the said
cheques were returned unpaid as per memo dated
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15.03.2008 with endorsement "funds insufficient." The
accused has requested the complainant to re-present the
cheque No.954078 for Rs.10,00,000/- and agreed to pay
remaining cheque amount by cash. The complainant got
issued legal notice to the accused dated 31.03.2008 calling
upon him to pay the amount of cheques. The said notice
has been returned to the complainant with an
endorsement "unclaimed." The accused has not paid the
amount of cheques within 15 days. Therefore, the
complainant initiated proceedings against the petitioner for
the offence punishable under Section 138 of the N.I.Act.
4. The complainant has been examined as PW.1.
Thereafter he did not appear for cross-examination due to
his ill-health. Thereafter, the complainant has executed
special power of attorney in favour of his daughter-in-law
and she has been examined as PW.2 and got marked
Exs.P1 to P13. The statement of the accused has been
recorded under Section 313 of Cr.P.C. Exs.D1 to D8 have
been got marked in the cross-examination of PW.2. The
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accused has not entered the witness box to lead defence
evidence. The learned Magistrate after hearing both sides
and appreciating the evidence on record has convicted the
petitioner for the offence under Section 138 of the N.I.Act
and sentenced to pay fine of Rs.25,30,000/- and in default
to undergo simple imprisonment for one year. The said
judgment of conviction has been challenged by the
petitioner-accused before the Sessions Court in
Crl.A.No.608/2015. The Sessions Court dismissed the said
appeal on merits and affirmed the judgment of conviction
and order of sentence passed by the trial Court.
5. Learned counsel for the petitioner contended that
PW.2, the special power of attorney holder of the
complainant has no personal knowledge of the transaction.
PW.2 has not stated in her chief examination regarding her
personal knowledge of the transaction. The contents of
affidavit filed in lieu of examination-in-chief are same to
that of contents of affidavit of PW.1. There is no mention
in Ex.P13, the special power of attorney regarding
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knowledge of special power of attorney holder of the
transaction. The said power of attorney has been executed
on 18.10.2012 and thereafter the complainant has filed
written statement in O.S.No.3878/2014 on 29.10.2014
(Ex.D3), that itself indicate that complainant was hale and
healthy to give evidence. The complainant under Ex.D4 -
sale agreement has received Rs.40,00,000/- by way of
cash from the petitioner-accused. The execution of Ex.D4
- sale agreement has been admitted by PW.2 in her cross-
examination. Lending of Rs.40,00,000/- on the same day
of agreement i.e. on 05.07.2007 and a sum of
Rs.35,00,000/- by cash is doubtful since on the same day
accused has paid cash of Rs.40,00,000/- to the
complainant. Apart from that the complainant has
received Rs.10,00,000/- by way of cheque bearing
No.954078 and the same has been mentioned in receipt -
Ex.D6 dated 06.06.2008. In the said Ex.D6, there is
mention regarding transaction pertaining to land bearing
Sy.No.28. The suit filed by the petitioner - accused in
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O.S.No.3878/2014 has been decreed for a sum of
Rs.50,00,000/- against the respondent - complainant.
6. Learned counsel on the point of power of attorney
holder has placed reliance on the decision of Hon'ble Apex
Court in the case of A.C.Narayanan and others vs.
State of Maharashtra and others (AIR 2014 SC 630).
Learned counsel for the petitioner placing reliance on the
cross-examination of PW.2 has contended that he has
rebutted the presumption drawn under Section 139 of the
N.I.Act. On the point of presumption he has placed
reliance on the decision of Hon'ble Apex Court in the case
of Basalingappa vs. Mudibasappa (2019) 5 SCC 418
and Kumar Exports vs. Sharma Carpets (AIR 2009 SC
1518). He further contended there was a written sale
agreement on 05.07.2007 which is at Ex.D4 and on the
same day borrowing hand loan of huge amount of
Rs.35,00,000/- in cash without any documents is
unbelievable. Even on the same day, i.e. on 05.07.2007,
the complainant has executed the registered power of
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attorney in favour of two sons of complainant and the
same has been admitted by PW.2 in her cross-examination
and there is also averment of the same in the complaint.
He contends that as the legal notice has not been
personally served on the petitioner - accused, he could
not give any reply to the same. He contends that as the
presumption is rebutted, it is for the complainant to prove
the transaction by giving cogent evidence. The evidence
on record does not establish the transaction of borrowing
of Rs.35,00,000/- by this petitioner - accused from the
complainant. Without considering all these aspects, the
learned trial Judge has convicted the petitioner and the
learned Sessions Judge has not re-appreciated the
evidence on record properly.
7. Learned counsel for the respondent would contend
that notice has been sent to petitioner by RPAD and also
under certificate of posting. Even though notice sent by
RPAD returned as "unclaimed", the notice sent under
certificate of posting has been served on the petitioner-
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accused and there is no reply to the said notice. The
petitioner - accused has admitted cheques Exs.P1 to P3.
Against the decretal of the suit filed by the petitioner -
accused, respondent has filed miscellaneous case seeking
setting aside the exparte decree. Along with Ex.P13, the
special power of attorney, medical certificate of
complainant has been enclosed wherein it is stated that
complainant due to accident is not able to take delicate
decisions. PW.2 - the special power of attorney holder of
complainant is his daughter-in-law and she has personal
knowledge. On perusal of cross-examination of PW.2 it
indicates that she was present at the time of transaction
and she has personal knowledge of the transaction. If the
complainant is sick or he dies, his LRs can prosecute the
complaint. He submits that power of attorney holder has
personal knowledge and she can give evidence on behalf
of the complainant. He has placed reliance of Hon'ble Apex
Court in A.C.Narayanan (supra) on that point. He also
placed reliance on the decision of the co-ordinate Bench of
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this Court in the case of H.N.Nagaraj vs. Suresh Lal
Hiralal (MANU/KA/4604/2022). On the same point
he has placed reliance of the Division Bench of this Court
in the case of Jimmy Jahangir Madan vs. Mrs.Bolly
Cariyappa Hindley and others (ILR 2001 KAR 5401).
As the issuance of cheques is admitted, the presumption
has to be drawn under Section 139 of the N.I.Act that
cheques are issued for discharge of debt. The said
presumption has not been rebutted by the petitioner -
accused. There is no mention of issuing cheques as
security in the sale agreement - Ex.D4 and that itself
indicate that defence is false. The fact that accused has
got one of four cheques among four dishonoured cheques
on second presentment itself indicate that all the four
cheques are issued for making repayment of money
borrowed. On the point of presumption, the learned
counsel has placed reliance on the decision of Hon'ble
Apex Court in Bir Singh vs. Mukesh Kumar
(MANU/SC/0154/2019). He submits that considering
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all these aspects the learned Magistrate has rightly
convicted the petitioner for the offence under Section 138
of the N.I.Act and the Sessions Judge rightly dismissed the
appeal filed by the petitioner - accused.
8. Having heard the learned counsels, this Court has
perused the impugned judgments and the trial Court
records.
9. The Hon'ble Apex Court in A.C.Narayanan
(supra) has held as under:
"19. As noticed hereinabove, though Janki
Vashdeo Bhojwani (supra), relates to powers of Power
of Attorney holder under Code of Civil Procedure but it
was concluded therein that a plaint by a Power of
Attorney holder on behalf of the original plaintiff is
maintainable provided he has a personal knowledge of
the transaction in question. In a way, it is an exception
to a well settled position that criminal law can be put
in motion by anyone [vide Vishwa Mitter (supra)] and
under the Statute, one stranger to transaction in
question, namely, legal heir etc., can also carry
forward the pending criminal complaint or initiate the
criminal action if the original complainant dies [Vide
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Ashwin Nanubhai Vyas vs. State of Maharashtra
MANU/SC/0101/1966(1967) 1 SCR 807]. Keeping in
mind various situations like inability as a result of
sickness, old age or death or staying abroad of the
payee or holder in due course to appear and depose
before the Court in order to prove the complaint, it is
permissible for the Power of Attorney holder or for the
legal representative(s) to file a complaint and/or
continue with the pending criminal complaint for and
on behalf of payee or holder in due course. However, it
is expected that such power of attorney holder or legal
representative(s) should have knowledge about the
transaction in question so as to able to bring on record
the truth of the grievance/offence, otherwise, no
criminal justice could be achieved in case payee or
holder in due course, is unable to sign, appear or
depose as complainant due to above quoted reasons.
Keeping these aspects in mind, in MMTC (supra), this
Court had taken the view that if complaint is filed for
and on behalf of payee or holder in due course, that is
good enough compliance with Section 142 of N.I. Act.
26) While holding that there is no serious conflict
between the decisions in MMTC (supra) and Janki
Vashdeo Bhojwani (supra), we clarify the position and
answer the questions in the following manner:
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(i) Filing of complaint petition under Section 138 of N.I Act
through power of attorney is perfectly legal and competent.
(ii) The Power of Attorney holder can depose and verify on
oath before the Court in order to prove the contents of the
complaint. However, the power of attorney holder must
have witnessed the transaction as an agent of the
payee/holder in due course or possess due knowledge
regarding the said transactions.
(iii) It is required by the complainant to make specific
assertion as to the knowledge of the power of attorney
holder in the said transaction explicitly in the complaint and
the power of attorney holder who has no knowledge
regarding the transactions cannot be examined as a witness
in the case.
(iv) In the light of Section 145 of N.I Act, it is open to the
Magistrate to rely upon the verification in the form of
affidavit filed by the complainant in support of the
complaint under Section 138 of the N.I Act and the
Magistrate is neither mandatorily obliged to call upon the
complainant to remain present before the Court, nor to
examine the complainant of his witness upon oath for
taking the decision whether or not to issue process on the
complaint under Section 138 of the N.I. Act.
(v) The functions under the general power of attorney
cannot be delegated to another person without specific
clause permitting the same in the power of attorney.
Nevertheless, the general power of attorney itself can be
cancelled and be given to another person."
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10. The co-ordinate Bench of this Court in
H.N.Nagaraj (supra) has held as under:
12. Answer to Point No.2: Whether the sworn
statement of the Special Power of Attorney holder
could be recorded in a proceeding under Section
138 of N.I.Act?
12.1. Para 33 of the decision of the Hon'ble
Apex Court in A.C.Narayanan's
MANU/SC/0934/2013 : (2014) 11 SCC 790 case
has been reproduced hereinabove.
12.2. In terms of Para 33.1 of
A.C.Narayanan's MANU/SC/0934/2013 : (2014) 11
SCC 790 case, it is clear that a complaint under
Section 138 of N.I.Act can be filed through a power
of attorney. In the present case, the complaint has
been filed by a Special Power of Attorney, which is
sufficient compliance.
12.3. In terms of para 33.2 of
A.C.Narayanan's MANU/SC/0934/2013 : (2014) 11
SCC 790 case, a power of attorney could depose
and verify on oath and prove the contents of the
complaint which has been done.
12.4. The power of attorney holder being a
witness to the transaction as an agent is a matter
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which has been averred in the complaint but the
veracity of the same would always be subject to
cross-examination in the proceedings. In the event
of the accused being able to establish that the
power of attorney does not know the transactions
and/or that the deposition given is not correct or
false, the accused could always succeed in the said
matter. At the stage of filing of an affidavit or
recordal of sworn statement it cannot be said or
decided as to whether the power of attorney is
aware of or not of the transactions.
12.5. In terms of para 33.3 of
A.C.Narayanan's MANU/SC/0934/2013 : (2014) 11
SCC 790 case, what is required is for a specific
assertion to be made that the power of attorney is
aware of the transactions. In the present case, such
an assertion has been made. Be that as it may,
during the course of cross-examination if it is
established that the power of attorney holder has
no knowledge regarding the transaction, then the
complaint itself would fail and it is the risk which
has been taken by the complainant by appointing
power of attorney holder.
12.6. In view of the above, I answer Point
No.2 by holding that a power of attorney could file
a complaint, could depose to an affidavit as also
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record his sworn statement in a proceedings under
Section 138 of N.I.Act.
11. The Division Bench of this Court Jimmy
Jahangir Madan (supra) has held as under:
"15. In our opinion, a probate is not
necessary to prosecute a criminal complaint as L.Rs
of the complainant. The question is who is
competent to prosecute the complaint after the
death of the complainant and whether the L.Rs are
entitled to prosecute the complaint. In these cases,
applications were made by the power of attorney
under Section 302(1) Cr.P.C. only and the main
objection was that the application was not filed
under Section 302(2) Cr.P.C. After perusal of
various provisions of the Code and Section 142 of
the N.I.Act, we answer the points referred to us as
follows:
(1) The complaint filed under Section 200 Cr.P.C. or
under Section 142 of the N.I.Act would not
ipso facto terminate or abate upon the death
of the complainant.
(2) In a proceeding initiated under Section 142 of
the N.I.Act, on the death of the complainant,
his L.Rs. their agents or power of attorney
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holder could be permitted to prosecute the
complaint under Section 302(2) Cr.P.C. or
under Section 142 of the N.I.Act.
(3) An agent or a power of attorney holder of payee
of cheque or holder in due course may be
permitted to prosecute the complaint unless
there is a specific bar in the Code for such
persons to lodge the complaint. But once the
complaint is filed by the aggrieved persons,
the prosecution can be continued by the
interested persons or persons named above.
16. Before parting with this case, we may add that
no provision of law should be construed so as to
defeat the purpose of the Act on technicalities. It is
desirable in a case of this nature for L.Rs of the
deceased to come on record and prosecute the
complaint in person, if possible. In the event of any
disability, they may seek the permission of the
Court to prosecute such complaint through their
agent or power of attorney. If such applications are
made, the Criminal Courts shall consider it on
merits and pass appropriate orders as required
under Section 302(2) Cr.P.C. or under Section 142
of the N.I.Act.
12. Considering the law laid down in the aforesaid
decision it is clear that if a power of attorney is having
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personal knowledge of the transaction can give evidence
on the behalf of complainant. It is also clear that if the
complainant is disabled/sick, the complaint can be
prosecuted through the agent or power of attorney holder.
On close reading of cross-examination of PW.2, it is clear
that she is having personal knowledge of the transaction
as averred in the complaint. Considering the said aspect
PW.2, special power of attorney holder can give her
evidence on behalf of respondent - complainant.
13. The Hon'ble Apex Court in Basalingappa
(Supra) has held as under:
25. We having noticed the ratio laid down by
this Court in above cases on Sections 118(a) and
139, we now summarise the principles enumerated
by this Court in following manner:-
25.1. Once the execution of cheque is
admitted Section 139 of the Act mandates a
presumption that the cheque was for the discharge
of any debt or other liability.
25.2. The presumption under Section 139 is a
rebuttable presumption and the onus is on the
accused to raise the probable defence. The
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standard of proof for rebutting the presumption is
that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for
the accused to rely on evidence led by him or
accused can also rely on the materials submitted by
the complainant in order to raise a probable
defence. Inference of preponderance of probabilities
can be drawn not only from the materials brought
on record by the parties but also by reference to
the circumstances upon which they rely.
25.4. That it is not necessary for the accused
to come in the witness box in support of his
defence, Section 139 imposed an evidentiary
burden and not a persuasive burden.
25.5. It is not necessary for the accused to
come in the witness box to support his defence.
14. The Hon'ble Apex Court in Bir Singh (Supra)
has held as under:
"36. The proposition of law which emerges
from the judgments referred to above is that the
onus to rebut the presumption under Section 139
that the cheque has been issued in discharge of a
debt or liability is on the accused and the fact that
the cheque might be post dated does not absolve
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the drawer of a cheque of the penal consequences
of Section 138 of the Negotiable Instruments Act."
15. Considering the above decisions, it is clear that
if the cheque is admitted presumption has to drawn under
Section 139 of the N.I.Act that cheque is issued for
discharge of debt. The said presumption under Section
139 is rebuttable presumption. The standard of proof for
rebutting the said presumption is that of preponderance of
probability.
16. It is the defence of petitioner - accused that four
cheques are issued as a security for payment of balance
amount under sale agreement dated 05.07.2007 (Ex.D4).
PW.2 in her cross-examination has admitted that there
was a transaction between the complainant and accused
on 05.07.2007 and the complainant has executed sale
agreement on 05.07.2007. PW.2 has also admitted that
on 05.07.2007 complainant has executed power of
attorney in favour of two sons of accused. Ex.D4 has been
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marked in the cross-examination of PW.2 when she
admitted that her father-in-law - complainant and accused
have entered into an agreement on 05.07.2007. Even
PW.2 has admitted that her husband and one Siddesh
have affixed their signature on Ex.D4. Under Ex.D4 - sale
agreement there is mention of payment of Rs.40,00,000/-
by cash as earnest money towards purchase of schedule
property. The said sale agreement is dated 05.07.2007.
The transaction in the present case is also on 05.07.2007.
As per the averments in Ex.D4 - sale agreement, the
petitioner - accused has paid cash of Rs.40,00,000/- as
earnest money towards purchase of schedule property to
the respondent - complainant and there was balance of
sale consideration of Rs.78,12,500/-. The date of
borrowing as per complainant is 05.07.2007 and date of
sale agreement-Ex.D4 is also 05.07.2007. It is not the
case of complainant that on 05.07.2007 he entered into
agreement with the accused and received Rs.40,00,000/-
and as accused pleaded his financial difficulty he lent
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Rs.35,00,000/- out of it to the accused. On the very same
day i.e. 05.07.2007 complainant has executed special
power of attorney in favour of sons of accused and the
same has been stated in the averments of complaint and
evidence of PW.2. The value of four cheques stated to
have been issued by the petitioner - accused is
Rs.35,00,000/-. The balance sale consideration to be paid
by the accused under Ex.D4 - sale agreement is
Rs.78,12,500/-. The trial Court and the appellate Court
have disbelieved the said defence of the accused only on
the ground that when there is balance of Rs.78,12,500/-,
the four cheques are issued only for Rs.35,00,000/-. Even
though there is balance of Rs.78,12,500/-, the agreement
holder may issue cheques for lesser amount than the
balance due as a security for payment of balance amount.
PW.2 has admitted that her husband Dr.Sanjay is a
witness in Ex.D4 - sale agreement. The said Dr.Sanjay,
husband of PW.2 and son of complainant ought to have
been examined as he was having full knowledge of
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transaction between the complainant and the accused. In
Ex.D6-receipt issued by the complainant it is stated that
he received Rs.10,00,000/- towards cheque No.954078
dated 05.10.2007. In Ex.D6 there is a mention that the
amount of Rs.10,00,000/- received by the complainant is
regarding land No.(survey) 28 (450)P6. The complainant
has disputed receipt of Rs.10,00,000/- from the accused
which is the amount under cheque No.954078. There is
another Deed of conveyance stated to have been executed
by the complainant in favour of two sons of accused dated
14.10.2007 which is at Ex.D5. To the said Deed of
Conveyance Dr.Sanjay, husband of PW.2 and son of
complainant is a witness and the same has been admitted
by PW.2. The said Sanjay has not been examined. Ex.D7
and D8 indicate that owner of property bearing Sy.No.28
measuring two acres have initiated proceedings against
the complainant under PTCL Act for restoring the land sold
by them to the complainant and the same has been
allowed by order dated 01.04.2008. It is the said property
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bearing Sy.No.28 which is the subject matter of sale
agreement - Ex.D4 and Deed of Conveyance - Ex.D5.
Considering all these aspects it is clear that the defence
set up by the petitioner - accused is probable. Even
though huge amount of Rs.35,00,000/- is stated to be lent
by way of cash on 05.07.2007, there is no document in
that regard even though on that day there was registered
GPA executed by the complainant in favour of sons of
accused and sale agreement Ex.D4. Considering these
aspects the petitioner has rebutted the presumption drawn
under Section 139 of the N.I.Act. As the presumption is
rebutted, the complainant has to establish the transaction.
Except the said three cheques no other materials are
placed on record to establish the transaction of the
accused borrowing Rs.35,00,000/- from the complainant
on 05.07.2007. Considering these aspects, the learned
Magistrate has erred in convicting the petitioner - accused
for the offence punishable under Section 138 of the
N.I.Act. The appellate Court also has not re-appreciated
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HC-KAR
the evidence on record properly and erred in confirming
the conviction passed by the trial Court. Considering all
these aspects, the impugned judgment passed by the trial
Court and the appellate Court requires to be set-aside and
accused is required to be acquitted for the offence
punishable under Section 138 of the N.I.Act. In view of
the above, the following:
ORDER
i) The revision petition is allowed.
ii) The impugned judgment of conviction and order
of sentence dated 26.03.2015 passed in
C.C.No2430/2009 passed by the XVIII ACMM,
Bengaluru is set-aside.
iii) The judgment dated 24.08.2017 passed in
Crl.A.No.608/2015 by the LXVI Additional City
Civil and Sessions Judge, Bangalore City
affirming the judgment of conviction passed by
the trial Court is also set-aside.
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iv) The petitioner - accused is acquitted for the
offence under Section 138 of the N.I.Act.
v) The petitioner/his LRs are entitled to refund of
amount deposited by them.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DKB
