Karnataka High Court
Yuvarajanaika vs G Gopala on 3 July, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.RP No. 1136 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL REVISION PETITION NO. 1136 OF 2017
BETWEEN:
YUVARAJANAIKA
S/O LAKSHMANANAIKA
AGED ABOUT 50 YEARS
AGRICULTURIST
R/AT MASTHAMBA TEMPLE
MURTHYHALU, KADUR TOWN
CHIKKAMAGALURU DISTRICT-577 548.
...PETITIONER
(BY SRI HEMANTH.T.C, FOR
SRI SATHISH CHANDRA R, ADVOCATES)
Digitally signed by
LAKSHMINARAYANA AND:
MURTHY RAJASHRI
Location: HIGH
COURT OF G GOPALA
KARNATAKA
S/O GUNDABHOVI
AGED ABOUT 47 YEARS
AGRICULTURIST
R/AT SUBASH NAGR, KADUR TOWN
CHIKKAMAGALURU DISTRICT-577 548.
...RESPONDENT
(BY SRI M.MADHUSUDAN FOR
SRI V. VISWANATH SETTY, ADVOCATES)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER PASSED IN CRL.A.No.118/2016 ON THE FILE OF THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU
DATED 19.10.2017 AND SET ASIDE THE JUDGMENT AND ORDER IN
C.C.No.177/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, KADUR DATED 30.06.2016.
THIS PETITION COMING ON FOR REPORTING SETTLEMENT
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 1136 of 2017
HC-KAR
CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
1. This revision petition is directed against the
judgment dated 19.10.2017 passed in Crl.A. No. 118/2016
by the Principal District and Sessions Judge,
Chikkamagaluru whereunder the judgment of conviction
and order on sentence dated 30.06.2016 passed in C.C.
No. 177/2012 by Principal Civil Judge and JMFC at Kadur
convicting the petitioner - accused for offence punishable
under Section 138 of Negotiable Instruments Act
(hereinafter for the sake of brevity referred to as the `N.I.
Act') and sentencing him to pay fine of Rs.1,45,000/- and
in default, to undergo simple imprisonment for a period of
3 months has been confirmed.
2. Heard learned counsel for petitioner - accused
and learned counsel for respondent - complainant.
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3. It is the case of respondent - complainant that
he and accused were known to each other. Petitioner -
accused had availed loan of Rs.1,00,000/- from
respondent - complainant for financial assistance to
discharge the hand loan availed by him for purchase of
landed properties. Towards repayment of the same, he
had issued cheque dated 04.05.2011 bearing No. 566995
drawn on State Bank of India, Bharath Nagar Branch,
Bengaluru, for a sum of Rs.1,00,000/-. Respondent -
complainant presented the said cheque for encashment
and it came to be dishonoured for the reason `funds
insufficient'. Respondent - complainant got issued legal
notice on 14.10.2011 and the same has been served on
petitioner - accused on 15.10.2011. Petitioner - accused,
inspite of service of notice, has not paid the cheque
amount. Therefore, respondent - complainant had initiated
proceedings under Section 138 of the N.I. Act. Respondent
- complainant has been examined as P.W.1 and got
marked Ex.P.1 to Ex.P.13. Statement of petitioner -
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accused has been recorded under Section 313 of Cr.P.C.
Petitioner - accused has been examined as D.W.1 and got
marked Ex.D.1 to Ex.D.4. The trial Court, after hearing
arguments on both sides and on appreciation of evidence
on record, has convicted petitioner - accused for offence
under Section 138 of N.I. Act. Said judgment of conviction
was challenged by petitioner - accused before the Sessions
Court in Crl.A. No. 118/2016. Said appeal came to be
dismissed on merits confirming the judgment of conviction
passed by the trial Court.
4. Learned counsel for petitioner - accused would
contend that respondent - complainant is a real estate
agent and on his mediation petitioner - accused purchased
property under sale deed - Ex.D.1 and regarding the same
P.W.1 has admitted that he is one of the signatory to the
said sale deed as a witness. He further submits that
cheque has been issued as a security for payment of
commission for the said sale transaction to the respondent
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- complainant and subsequently said amount has been
paid by cash, but respondent - complainant has not
returned the said cheque and he has misused the same.
He further submits that petitioner - accused has filed a
complaint against respondent - complainant and others
and FIR is registered against him. Petitioner - accused, in
order to prove his defence, has also let in evidence and
stated his defence in his chief-examination. Without
considering all these aspects learned Magistrate has erred
in convicting petitioner - accused for offence punishable
under Section 138 of N.I. Act. The Appellate Court has
erred in confirming said judgment of conviction passed by
the trial Court.
5. Learned counsel for respondent - complainant
would contend that the trial Court, appreciating the
evidence on record, has rightly convicted the petitioner
and the appellate Court has rightly re-appreciated the
evidence confirming the conviction passed by the trial
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Court. He has supported the reasons assigned by the trial
Court and appellate Court.
6. Having heard learned counsel for the parties
this Court has perused the impugned judgments and trial
Court records.
7. It is the specific case of respondent -
complainant that he has lent Rs.1,00,000/- to petitioner -
accused as hand loan for purchase of property and for
making repayment of the same he has issued the cheque
- Ex.P.1. Petitioner - accused who has been examined as
D.W.1 has admitted his signature on the cheque - Ex.P.1
and it is drawn on his bank account. Petitioner - accused
has admitted his signature on the cheque - Ex.P.1 and it is
drawn on his bank account. As petitioner - accused has
admitted his signature on the cheque - Ex.P.1 a
presumption has to be drawn under Section 139 of N.I.
Act that the cheque is issued for discharge of debt. Said
presumption is a rebuttable presumption. Stand of proof
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for rebutting the said presumption is that of
preponderance of probability.
8. Petitioner - accused even after service of notice
issued by respondent - complainant for dishonour of
cheque has not got issued any reply putting forth his
defence. Petitioner - accused has taken up the defence in
the cross-examination of P.W.1 that there was a sale
transaction as per sale deed (Ex.D.1) and for the said sale,
respondent - complainant and one Sri. Mahesh were
mediators. Respondent - complainant has admitted that he
is one of the signatory to Ex.D.1 - sale deed as a witness.
P.W.1 has denied that cheque is issued as a security
towards payment of his commission and petitioner -
accused has paid commission of Rs.50,000/- in cash to
him. D.W.1 has stated his defence in his chief examination
and it has been denied by respondent - complainant in the
cross-examination. Petitioner - accused has not let in
other evidence to establish that he has paid commission
of Rs.50,000/- to respondent - complainant by cash and
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he has sought for return of cheque given as security for
payment of commission amount. D.W.1 has also admitted
that - complaint filed by him against respondent -
complainant and others has been stated to be false by the
Police report. Considering all these aspects petitioner -
accused has failed to establish his defence and failed to
rebut the presumption drawn under Section 139 of N.I.
Act. As the petitioner has failed to rebut the presumption,
respondent - complainant need not prove the transaction.
9. The Hon'ble Apex Court in the case of
Kalamani tex and Another Vs. P
Balasubramanian, reported in 2021 (5) SCC 283
has 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.
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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 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."
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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 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."
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11. Considering all these aspects, there are no
grounds made out to set aside the impugned judgments
and acquit the petitioner - accused.
12. In the result, petition is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
