Karnataka High Court
A V Bhavya vs T P Drakshayani on 11 July, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.RP No. 302 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL REVISION PETITION No. 302 OF 2021
BETWEEN:
A.V. BHAVYA
W/O RAVI KUMAR
AGED ABOUT 38 YEARS
3RD MAIN ROAD, WARD No.7
SARASWATHI PURAM
TURUVEKERE TOWN - 572 227.
...PETITIONER
(BY SRI PAVAN KUMAR G, ADVOCATE)
Digitally signed by AND:
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH T.P. DRAKSHAYANI
COURT OF W/O MOHAN
KARNATAKA
AGED ABOUT 35 YEARS
R/AT OPPOSITE I.T.I COLLEGE
VIDYANAGAR
TUMAKURU DISTRICT - 572 101.
...RESPONDENT
(BY SMT. RUSHAB A.R, ADVOCATE FOR
SRI H.V. PRAVEEN GOWDA, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF
CONVICTION PASSED BY HONBLE SENIOR CIVIL JUDGE JMFC AT
TURUVEKERE IN CC.No.103/2016, JUDGMENT DATED
25.11.2017, WHICH GOT CONFIRMED BY THE HON'BLE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT TIPTUR IN
CRL.A.No.10036/2017, DATED 06.07.2020 AND ETC.,
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 302 of 2021
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CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
This revision petition is directed against the judgment
dated 06.07.2020 passed in Crl.A.No.10036/2017 by V Addl.
District and Sessions Judge, Tiptur, wherein the judgment of
conviction dated 25.11.2017 passed in C.C.No.103/2016 by
Sr.Civil Judge and JMFC, Turuvekere convicting the
petitioner /accused for the offences punishable under
Section 138 of N.I.Act has been confirmed.
2. Heard the learned counsel for the petitioner and
learned counsel for the respondent.
3. The case of the respondent/complainant before the
trial court was that the petitioner/accused borrowed a sum
of Rs.2,50,000/- from the respondent/complainant on
01.07.2015 and agreed to repay the same with interest at
the rate of 18% p.a. within three months. Pursuant to the
said transaction, the accused has issued a cheque bearing
No.120838 dated 01.05.2015 for a sum of Rs.2,50,000/-
drawn on State Bank of Mysore, Turuvekere Branch on
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01.07.2015 to the complainant, who presented the said
cheque for encashment on 01.10.2015. But it came to be
dishonoured for the reason "Funds Insufficient" under memo
dated 3.10.2015. The complainant got issued a legal notice
to the accused on 08.10.2015 demanding payment of the
cheque amount, but the said notice has been returned with a
shara "not claimed" on 19.10.2015. As the accused has not
paid the cheque amount within fifteen days, the complainant
initiated proceedings against the accused/petitioner for the
offence under Section 138 of N.I.Act. The
complainant/respondent has been examined as PW.1 and
got marked Ex.P1 to Ex.P7. The statement of the accused
has been recorded under section 313 Cr.P.C. The accused
has not led any defence evidence. The learned Magistrate
after hearing the arguments of both sides and appreciating
the evidence on record, convicted the accused/petitioner for
the offence under Section 138 of N.I.Act and sentenced to
undergo simple imprisonment for six months and awarded
compensation of Rs.2,60,000/-, out of which a sum of
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Rs.2,50,000/- is payable to the complainant and Rs.10,000/-
to the State as fine. The said judgment of conviction and
order of sentence has been challenged by the accused
before the Sessions Court in Crl.A.No.10036/2017 and the
same came to be dismissed affirming the judgment of
conviction and order of sentence passed by the trial court.
4. Learned counsel for the petitioner contended that
the respondent/complainant is a housewife and she has not
established her capacity to lend Rs.2,50,000/-. The trial
court and the appellate court have not considered the said
aspect. Learned counsel for the respondent supported the
reasons assigned by the trial court and the appellate court
and prays for dismissal of the revision petition.
5. Having heard the learned counsel for the petitioner,
this court has perused the impugned judgment and trial
court records.
6. It is a specific case of respondent/complainant that
the petitioner/accused borrowed Rs.2,50,000/- on
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01.07.2015 agreeing to repay the same within three months
and issued post dated cheque as per Ex.P.1 dated
01.10.2015 for Rs.2,50,000/-. The petitioner/accused has
not disputed issuance of cheque as per Ex.P.1 to the
respondent/complainant. As the cheque Ex.P.1 has not been
disputed, a presumption has to be drawn under section 139
of N.I.Act that the cheque has been issued for discharge of
debt. The said presumption is a rebuttable presumption, a
standard of proof for rebutting the said presumption is that
of preponderance of probability.
7. The petitioner has not got issued any reply to the
demand notice issued by the respondent / complainant. On
perusal of cross-examination of PW1, no defence has been
taken up by the petitioner/accused except denying the fact
that she has borrowed money from the complainant. How
the cheque of petitioner/accused reached the hands of
respondent/complainant has not been stated by accused or
suggested to PW1 in cross-examination. Therefore the
presumption drawn under Section 139 N.I. Act that the
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cheque is issued towards discharge of debt remain un-
rebutted. The consequences of non-rebuttal of the
presumption drawn under Section 139 of N.I.Act has been
considered by the Hon'ble Apex Court in the case of Rajesh
Jain Vs. Ajay Singh reported in AIR Online 2023 SC 807
wherein it is observed thus:
"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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8. The Hon'ble Apex Court also considered the same
aspect in the case of Kalamani tex and Another Vs. P.
Balasubramanian reported in (2021) 5 SCC 283 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
crystallized 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
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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."
9. In view of non-rebuttal of the presumption drawn
under Section 139 of N.I.Act, if other ingredients of offence
under Section 138 of N.I.Act are established, the court has
to straight away convict the accused/petitioner for the
offence under Section 138 of N.I.Act. Considering the said
aspect, the learned Magistrate has rightly convicted the
petitioner for offence under Section 138 of N.I.Act and the
appellate court has rightly re-appreciated the evidence on
record and affirmed the judgment of conviction passed by
the trial court.
10. Learned counsel for the petitioner submits that
there is a sentence of imprisonment, as the petitioner being
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a lady having husband and children and as she faced trial for
nine years, the said sentence of imprisonment be modified
into enhancement of fine/compensation amount.
Considering the fact that the petitioner is a woman having
husband and children, faced trial for nine years, the
sentence of imprisonment requires to be modified to
sentence of fine. The trial court has ordered payment of
compensation of Rs,2,60,000/- under Section 357 Cr.P.C.,
and out of that Rs.2,50,000/- has to be paid as
compensation to the complainant and remaining Rs.10,000/-
to the State exchequer as fine. Considering the fact that the
transaction has taken in the year 2015, i.e., nearly 10 years
ago, the respondent/complainant requests to be
compensated by enhancing fine/compensation amount as
the sentence of imprisonment requires to be modified into
fine / compensation. Therefore this court deems it fit to
enhance the fine / compensation by a sum of Rs.1,00,000/-.
For the aforesaid reasons, the following :
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ORDER
i. The revision petition is allowed in part.
ii. The conviction of the petitioner/accused for
the offence under Section 138 of N.I.Act passed by
the Trial Court and affirmed by the Appellate Court
is confirmed.
iii. The sentence of imprisonment for a
period of six months is modified to sentence of
fine/compensation by enhancing the compensation
already awarded by the trial court by a sum of
Rs.1,00,000/-. The petitioner/accused shall pay a
total fine of Rs.3,60,000/- and in default to
undergo simple imprisonment for a period of six
months. Out of the said fine amount, a sum of
Rs.3,50,000/- is ordered to be paid as
compensation to the respondent/complainant and
remaining amount of Rs.10,000/- is to be defrayed
to the State.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
SD
CT: BHK
