Karnataka High Court
Sri M Madhavan vs Sri S Dasarath Naidu on 11 July, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.RP No. 702 of 2018
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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. 702 OF 2018
BETWEEN:
SRI M MADHAVAN
S/O LATE MAYANDI
AGED 84 YEARS
R/AT No.507(&3) 10TH A CROSS,
MUNESHWARA LAYOUT
II MAIN ROAD, LAGGERE
BANGALORE - 560 058.
...PETITIONER
(BY SRI M M ASHOKA, ADVOCATE)
Digitally signed by AND:
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH SRI S DASARATH NAIDU
COURT OF S/O K.R.SUNDARAM NAIDU
KARNATAKA
R/AT No.63/A, 13TH CROSS
MAHALAKSHMI LAYOUT
BENGALURU - 560 086.
...RESPONDENT
(BY SRI SUNIL S RAO, FOR
SRI T SESHAGIRI RAO, ADVOCATES
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT
PASSED IN CRL.A.No.1133/2016 DATED 19.06.2018, ON THE
FILE OF THE LXVI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BANGALORE CITY. (CCH-67) AND ALSO SET ASIDE THE
ORDER PASSED IN C.C.No.1603/2015, DATED 09.09.2016, ON
THE FILE OF THE XIX A.C.M.M., AT BANGALORE CITY AND
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CRL.RP No. 702 of 2018
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ACQUIT THE PETITIONER FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF THE N.I ACT.
THIS PETITION COMING ON FOR FURTHER HEARING
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
1. This Revision Petition is directed against the
judgment dated 19.06.2018 passed in Crl.A. No.
1133/2016 by LXVI Additional City Civil and Sessions
Judge, Bengaluru, whereunder the judgment of conviction
dated 09.09.2016 passed in C.C. No. 1603/2015 by XIX
Additional Chief Metropolitan Magistrate, Bengaluru,
convicting the petitioner - accused for offence under
Section 138 of the Negotiable Instruments Act (hereinafter
referred to as the N.I. Act) and sentence to pay fine of
Rs.2,45,000/- and in default to undergo simple
imprisonment for a period of 6 months has been affirmed.
2. Heard learned counsel for petitioner and
learned counsel for respondent.
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3. Case of the respondent - complainant before
the trial Court is, that the petitioner - accused is his friend
and out of friendship petitioner - accused approached the
respondent - complainant in the month of June 2013 and
requested hand loan of Rs.2,00,000/- for his financial
commitments. Respondent - complainant considering the
request of petitioner - accused had advanced a sum of
Rs.2,00,000/- in the month of June 2013 by way of cash
and petitioner - accused after receipt of the said loan
amount had agreed to repay the same within October
2013. Petitioner - accused, towards payment of loan
amount, had issued a cheque bearing No. 464101 dated
15.10.2013 for a sum of Rs.2,00,000/- drawn on Janatha
Co-operative Bank Limited, Malleshwaram Bangalore with
a request to present the same after 20.10.2013.
Respondent - complainant presented the said cheque on
21.10.2013 and it came to be dishonored with an
endorsement `payment stopped by the drawer' under
memo dated 22.10.2013. Respondent - complainant got
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issued demand notice to petitioner - accused and the same
has been served on him. Petitioner - accused, in spite of
service of notice, has not repaid the cheque amount but
has sent reply. Therefore, respondent - complainant has
initiated proceedings against the petitioner - accused for
offence 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.7. Statement of petitioner - 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.8. Learned Magistrate after hearing
arguments on both sides and on appreciating evidence on
record has convicted petitioner - accused for offence under
Section 138 of the N.I. Act. Said judgment of conviction
had been challenged by petitioner - accused before the
Sessions Court in Crl.A. No. 1133/2016 and the same
came to be dismissed on merits, affirming the judgment of
conviction passed by the trial Court.
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4. Learned counsel for petitioner - accused would
contend that the date of loan has not been mentioned in
the legal notice, complaint and examination-in-chief of
P.W.1. Petitioner - accused was aged more than 75 years
and respondent No. 1 was aged about 37 years as on the
date of the complaint. Considering the age gap between
them, it cannot be said that there was friendship between
them. Petitioner - accused has sent reply to the demand
notice as per Ex.P.6 = Ex.D.4 and taken up the defence
that he had not borrowed any loan from respondent -
complainant and the cheque has been issued for the
purpose of contract work for construction of his house as
advance and same has not been acted upon since
respondent - complainant stated that he will construct only
ground and first floor and not second floor, as agreed
earlier, for Rs.20,00,000/-. Therefore petitioner - accused
has issued intimation to the banker for stop payment of
Ex.P.1 - cheque. As on the date of dishonor of the cheque
there was sufficient balance in the account of petitioner -
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accused to honour the cheque and it can be seen from
Ex.D.8 - bank account statement of petitioner - accused.
Respondent - complainant who has been examined as
P.W.1 has admitted that he knows one Sri.
Dakshinamurthy and on his mediation respondent -
complainant had agreed to construct ground + 2 floors of
house of petitioner - accused for Rs.20,00,000/- and
towards the same Ex.P.1 - cheque has been issued as
security. Petitioner - accused had received Rs.5,00,000/-
under sale agreement entered into by him with one Sri.
Jayakumar during June 2013 and subsequently sale deed
has been executed on 10.10.2013 wherein he has received
the balance amount. Said balance sale consideration has
been credited to the bank account of petitioner - accused
on 12.10.2013 in a sum of Rs.16,43,400/-. As on the date
of the cheque - Ex.P.1, there was sufficient balance in the
account of petitioner - accused and there was no necessity
for petitioner - accused to ask respondent - complainant to
present after 20.10.2013. Considering all these aspects,
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petitioner - accused has rebutted the presumption drawn
under Section 138 of the N.I. Act. As the presumption is
rebutted, onus shifted on respondent - complainant to
prove the alleged transaction of hand loan and issuance of
Ex.P.1 - cheque towards repayment of the said hand loan.
Respondent - complainant has not established borrowing
of hand loan of Rs.2,00,000/- by petitioner - accused.
Without considering all these aspects, learned Magistrate
has erred in convicting petitioner - accused for offence
under Section 138 of N.I. Act. The appellate Court has also
erred in affirming the judgment passed by the trial Court.
On these grounds, he prayed to allow the revision petition
and acquit petitioner - accused.
5. Learned counsel for respondent - complainant
would contend that petitioner - accused has admitted the
cheque and its contents in his handwriting in his cross-
examination. As cheque is admitted, a presumption has to
be drawn under Section 139 of N.I. Act. Petitioner -
accused has taken up the defence in his reply notice
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Ex.P.6. He has not established the said defence. The bank
account of petitioner - accused did not have sufficient
balance to honour the cheque prior to 12.10.2013 and the
same can be seen from Ex.D.8 - bank account statement.
The balance in the said bank account, as per Ex.D.8 itself
indicates that petitioner - accused was in need of money
and he borrowed hand loan from respondent -
complainant. Sri. Dakshina Murthy and Sri. Jayakumar
have not been examined by petitioner - accused.
Respondent - complainant has not filed any complaint
against petitioner - accused and Sri. Dakshina Murthy for
misuse of the cheque. Considering all these aspects,
learned Magistrate has rightly convicted petitioner -
accused and the appellate Court has rightly affirmed the
judgment of conviction passed by the trial Court.
6. Having heard learned counsel for the parties,
this Court has perused the impugned judgments and trial
Court records.
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7. It is the specific case of respondent -
complainant that he and petitioner - accused were friends
and petitioner - accused had borrowed a sum of
Rs.2,00,000/- as hand loan during June 2013 agreeing to
repay the same within October 2013 and issued cheque
dated 15.10.2013 for Rs.2,00,000/- in favour of
respondent - complainant for making repayment of the
amount borrowed and requested to present the cheque
after 20.10.2013. Petitioner - accused has admitted the
cheque Ex.P.1 and therefore, a presumption has to be
drawn under Section 139 of N.I. Act that the cheque is
issued for discharge of the debt. Said presumption is a
rebuttable presumption. Standard of proof for rebutting
the said presumption is preponderance of probability.
8. Petitioner - accused has sent his reply to the
demand notice as per Ex.P.6 equivalent to Ex.D.4. putting
forth his defence. The defence taken up by petitioner -
accused in reply notice Ex.P.6 is as under:
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3. My client informs that soon after entering into agreement
to sell in the month of June 2013, my client had expressed his
intention to put up construction in a portion of the property
belonging to my client at Muneshwara Layout, Laggeri,
Bangalore and coming to know of the same, Sri.
Dakshinamurthy requested my client to give the construction
contract to your client and immediatly your client demanded
my client to give advance amount of Rs.2,00,000/-(rupees
Two Lakhs) only to commence the construction work and also
agreed that he would take care of obtaining the sanction plan
etc and also assured for a sum of Rs.20,00,000/-( rupees
Twenty Lakhs) your client would put up construction of
Ground, First and Second Floors measuring approximately 14-
15 squares and believing your client based on the
representations and promises made by him, on 11/10/2013
my client had issued the subject matter of the cheque without
date, as your client informed that he would write the date
after consulting the manager of Janatha Co-operative Bank
Ltd., and your client along with my client went to the bank
and since there was no huge cash in the Branch, the branch
manager informed to collect the cash on 15/10/2013, since
there bank was continuous general holidays and the said
cheque issued by my client was only a bearer cheque and not
crossed at the time of handing over the cheque to your client.
4. Further soon after receipt of the cheque from my client for
Rs.2,00,000/- (rupees Twenty Lakhs)only, your client started
informing that he would construct only the Ground and First
Floor and not Second Floor as promised earlier for the sem of
Rs.20,00,000/-(rupees Twenty Lakhs) only agreed to be paid
to your client and my client got suspicious about the conduct
of your client as he had changed the promise in the initial
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state itself after receipt of advance cheque and on enquiry
with others learnt that your client had no good reputation in
construction and hence demanded your client through
Dakshinamurthy to return back the cheque, as my was not
interested to give the construction contract to your client and
on the refusal of your client, instructed the banker to stop
payment of the cheque,
5. Further, Dakshninamurthy informed my client to pay
Rs.50,000/- to your client in order to take back the cheque
and my client refused to do the same and continuously,
Dakshniamurthy and your client visited my client 3-4 times
and requested to honour the cheque and again your client
assured that he would under take the contract of construction
of Ground, First and Second floors for the earlier agreed
amount, but my client refused to agree and your client and
Dakshinamurthy have also criminally intimidated to cause hurt
and threatened with gree consequences and on informing that
my client would lodge police complaint, Dakshinamurthy
persuaded my client to pay Rs.50,000/- to collect back the
cheque and your client informed that he would bring the
cheque and thereafter, on 4/12/2013, my client was shocked
to receive the notice issued by you on behalf of your client
giving a different story.
6. My client informs that your client and Dakshinamurthy
taking advantage of the advanced age of my client and also
after coming to know of the money received by my client
towards the sale of Bovipalya house by my client, your client
and Dakshnamurthy entered into criminal conspiracy with
each other with a common dishonest intention to cheat my
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client falsely represented and promised that your client would
construct Ground, First and Second floors house for
Rs.20,00,000/- and after receipt of the cheque, started
bargaining that your client would only construct the Ground
and First floor and even after informing your client to return
back the cheque by my client, sine yhour client in collusion
with Dakshinamurty have stared extortion to return back the
cheque."
9. Said defence taken up by petitioner - accused
in reply notice Ex.P.6 has been put as a suggestion to
P.W.1 in his cross examination. P.W.1 has denied the said
suggestion. P.W.1 has admitted that he is doing real
estate business. He has also admitted that he is
acquainted with Sri. Dakshinamurthy. P.W.1 in his cross-
examination has stated that earlier to the present
transaction petitioner - accused had once borrowed
money from him and thereafter he had executed a letter
and the same has been taken back by petitioner - accused
at the time of giving the cheque. Said aspect has not been
stated by respondent - complainant in his complaint. In
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the complaint there is no mention of petitioner - accused
borrowing any money prior to June 2013.
10. In the legal notice - Ex.P.3, complaint and
examination-in- chief of P.W.1 there is no mention of
specific date on which petitioner - accused borrowed hand
loan from respondent - complainant. What is stated is that
petitioner - accused borrowed hand loan during the month
of June 2013. P.W.1 has stated in his cross-examination
that petitioner - accused has borrowed money from him on
07.06.2013. P.W.1 has admitted that he has not stated
the date of borrowing either in the notice or in the
complaint and he has stated the same for the first time.
11. Cheque - Ex.P.1 is dated 15.10.2013. As per
the complainant, it is presented on 21.10.2013 and it is
dishonored on 22.10.2013. Respondent - complainant in
the complaint and legal notice has stated that petitioner -
accused had requested him to present the cheque after
20.10.2013. Ex.D.8 is bank account statement of the
account of petitioner - accused. There was sufficient
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balance to honour the cheque - Ex.P.1 as on 12.10.2013.
There was balance of Rs.16,68,884.43 as on 12.10.2013.
The cheque - Ex.P.1 is dated 15.10.2013. As on the date
of the cheque also there was sufficient balance in the
account of petitioner - accused to honour the cheque.
When there was sufficient balance to honour the cheque,
the contention of respondent - complainant that petitioner
- accused requested him to present the cheque only after
20.10.2013 is unbelievable. As per Ex.D.8, petitioner -
accused had given information to the bank to stop
payment of the cheque bearing number 464101 on
21.10.2013. As per petitioner - accused, he had given
cheque on 10.10.2013 to petitioner - accused towards part
payment of the contract for construction of house of
ground + 2 floors as agreed by respondent - complainant.
Subsequently, respondent - complainant intimated
petitioner - accused that he cannot construct the second
floor for a sum of Rs.20,00,000/-, that too, after receipt of
cheque - Ex.P.1 and that made petitioner - accused to
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cancel the said contract and issue stop payment intimation
to his banker on 21.10.2013. Said intimation issued on
21.10.2013 and dishonor of the cheque - Ex.P.1 on
22.10.2013 itself probabilises the defence of petitioner -
accused. The fact that the complainant - PW1 is doing real
estate business and on his mediation along with the Sri.
Daksinamurthy, the property of petitioner - accused has
been sold to one Sri. Jayaumar during June, 2013, and
petitioner - accused has paid commission of Rs.55,000/- to
respondent - complainant and Sri. Dakshinamurthy has
been stated by D.W.1 in his chief-examination. D.W.1 in
his cross-examination has stated that he had told Sri.
Dakshinamathy that he intended to sell the house situated
by Bhovipalya. He also stated that on 10.10.2013 he had
given Rs.55,000/- to Sri. Dakshinamurthy as commission.
D.W.1 has stated that he had received Rs.5,00,000/-
under the sale agreement from Sri. Jayakumar during
June 2013 and the same has not been denied in the cross-
examination and that itself shows that he had money
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during June 2013 and he was in no need of money to be
borrowed from others. Considering all these aspects,
petitioner - accused has taken the probable defence and
rebutted the presumption drawn under the N.I. Act. As the
presumption is rebutted, it is for respondent - complainant
to establish the transaction of borrowing and issuance of
cheque for making payment of amount borrowed.
Respondent - complainant has not stated the exact date of
borrowing in his legal notice, complaint and cross-
examination. What is stated therein is regarding borrowing
during June 2013. But, P.W.1 in his cross-examination has
stated that petitioner - accused borrowed money on
07.06.2013.
12. Age of petitioner - accused was about 75 years
and that of complainant about 37 years as on the date of
complaint. There is huge gap between the age of
petitioner - accused and respondent - complainant.
Considering the huge gap in the age, the contention of
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respondent - complainant that petitioner - accused is his
friend is unbelievable.
13. P.W.1 has not placed any document to show
that he had cash of Rs.2,00,000/- during June 2013 to
lend it to petitioner - accused. Income of respondent -
complainant per month was Rs.20,000/- and he had
household expenses of Rs.8,000/- per month. That itself
indicates that he had no capacity to lend Rs.2,00,000/- to
petitioner - accused. Apart from the cheque - Ex.P.1,
respondent - complainant has not placed any document or
evidence on record to establish that petitioner - accused
borrowed Rs.2,00,000/- from him. Even the said Sri.
Dakshinamurthy has not been examined by respondent -
complainant. Considering all these aspects, respondent -
complainant has failed to establish that petitioner -
accused has borrowed Rs.2,00,000/- from him during June
2013 and for making payment of the same he had issued
the cheque - Ex.P.1. Without considering the above
aspects and without appreciating the evidence on record
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properly, learned Magistrate has convicted petitioner -
accused for offence under Section 138 of N.I. Act. Learned
Magistrate has erred in convicting petitioner - accused for
offence under Section 138 of N.I. Act. Learned Sessions
Judge did not re-appreciate the evidence on record
properly and erred in affirming the judgment of conviction
passed by the trial Court. Therefore, the judgment of the
trial Court and the appellate Court requires to be set aside
and the petitioner - accused is required to be acquitted.
14. In the result, the following;
ORDER
I. Revision petition is allowed.
II. Judgment of the trial Court dated 09.09.2016
passed in C.C. No. 1603/2015 by XIX Additional
Chief Metropolitan Magistrate, Bengaluru is set
aside.
III. Judgment passed by the appellate Court dated
19.06.2018 in Crl.A. No. 1133/2016 by LXVI
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Additional City Civil and Sessions Judge,
Bengaluru, is also set aside.
IV. The petitioner - accused is acquitted for offence
under Section 138 of N.I. Act.
V. Amount in deposit, if any, deposited by the
petitioner is ordered to be refunded to him.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
Ct.sm
