S H Yuvaraj vs K.Hemachandra
2025 Latest Caselaw 992 Kant

Karnataka High Court

S H Yuvaraj vs K.Hemachandra on 14 July, 2025

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                       CRL.RP No. 1388 of 2021


                      HC-KAR




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 14TH DAY OF JULY, 2025

                                              BEFORE
                      THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
                         CRIMINAL REVISION PETITION No. 1388 OF 2021
                      BETWEEN:

                         S H YUVARAJ
                         S/O HANUMANTHAPPA
                         AGED 44 YEARS
                         PROPRIETOR
                         MARUTHI ELECTRICALS
                         R/AT No. 3733, 6TH CROSS
                         M.C.C. 'B' BLOCK
                         KUVEMPU NAGARA
                         DAVANAGERE - 577 002.
                                                                ...PETITIONER

                      (BY SRI B K MANJUNATH, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA       AND:
MURTHY RAJASHRI
Location: HIGH
COURT OF                 K HEMACHANDRA
KARNATAKA
                         S/O LATE KEMPAIAH
                         AGED ABOUT 46 YEARS
                         R/AT 3RD MAIN ROAD
                         VALMIKI NAGAR
                         "POORNA CHANDRA NILAYA"
                         TUMKUR TOWN
                         TUMKUR - 572 102.
                                                               ...RESPONDENT

                      (BY SRI RAGHU PRASAD B S, ADVOCATE)

                           THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
                      SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT
                      DATED 30.10.2021 PASSED BY THE VI ADDITIONAL DISTRICT
                      AND SESSIONS JUDGE, TUMAKURU IN CRL.A.No.37/2019
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                                          CRL.RP No. 1388 of 2021


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CONFIRMING THE JUDGMENT AND ORDER DATED 20.06.2019
PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C-1,
TUMAKURU IN C.C.No.2551/2017 AND ETC.,

    THIS PETITION COMING ON FOR 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

judgment dated 30.10.2021 passed in Crl.A. No. 37/2019

by VI Additional District and Sessions Judge at Tumakuru

whereunder the judgment of conviction dated 20.06.2019

passed in C.C. No. 2551/2017 by the Principal Civil Judge

and JMFC - I, Tumakuru, convicting petitioner - accused

for offence under Section 138 of Negotiable Instruments

Act (hereinafter for the sake of brevity referred to as the

`N.I. Act') and sentencing him to undergo simple

imprisonment for a period of 1 year and to pay fine of

Rs.32,00,000/- has been affirmed.

2. Heard learned counsel for petitioner - accused

and learned counsel for respondent - complainant.

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3. Case of the respondent - complainant before

the trial Court was that respondent - complainant and

petitioner - accused were working as electrical contractors

for 20 years and had been carrying on contract work

within the State of Karnataka. They were working for KEB

and its allied corporations, namely, BESCOM, CHESCOM

and MESCOM. Petitioner - accused was allotted tender

from BESCOM on 07.04.2016 to do some work. Petitioner

- accused after getting the contract work from BESCOM,

contacted respondent - complainant to carry out the

contract work on his behalf by investing money. After

negotiations they entered into terms and conditions but

written agreement was not entered into between petitioner

- accused and respondent - complainant as there was

precondition in the agreement entered into between

petitioner - accused and BESCOM that petitioner - accused

shall not re-entrust the contract work to any third party.

Respondent - complainant invested huge money for the

project to the tune of more than Rs.3,00,00,000/- by

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borrowing from private persons as well as Sneha Sangama

Co-operative Bank, Tumakuru. Every month contract

amount was paid to petitioner - accused by the

department. Petitioner - accused was not regularly making

payment to respondent - complainant towards the work

completed by him. Petitioner - accused was due in a sum

of Rs.1,10,00,000/-. After repeated requests and

persistent demand petitioner - accused issued cheuqe in

favour of respondent - complainant for Rs.30,00,000/-

bearing No. 916365 dated 16.03.2017 drawn on State

Bank of India, Davanagere branch. On instructions of

petitioner - accused, respondent - complainant presented

the said cheque for encashment on 21.03.2017 through

ECO Bank, Tumakuru. Said cheque was returned with

endorsement `stop payment' and endorsement was issued

on 22.03.2017. Respondent - complainant got issued legal

notice to petitioner - accused by RPAD dated 27.03.2017

calling upon him to pay the amount covered under the

cheque. Said notice was served on petitioner - accused on

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03.04.2017. Petitioner - accused has not paid the cheque

amount within 15 days. Therefore, respondent -

complainant initiated proceedings against petitioner -

accused for offence under Section 138 of N.I. Act. Prior to

initiating proceedings against petitioner - accused for

offence under Section 138 of N.I. Act respondent -

complainant had also filed a suit in O.S. No. 2331/2017 on

the file of City Civil Court, Bengaluru, for recovery of

Rs.1,10,00,000/- against petitioner. Respondent -

complainant, in order to prove his case, has examined

himself as P.W.1 and got marked Ex.P.1 to Ex.P.15.

Statement of petitioner - accused has been recorded under

Section 313 of Cr.P.C. Petitioner - accused has not lead

any defence evidence. Learned Magistrate, after hearing

arguments on both sides, convicted petitioner - accused

for offence under Section 138 of N.I. Act by order dated

20.06.2019 and sentenced him to undergo simple

imprisonment for a period of 1 year and to pay fine of

Rs.32,00,000/-. Said judgment of conviction and order on

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sentence had been challenged by petitioner - accused

before the Sessions Court in Crl.A. No. 37/2019. Said

appeal came to be dismissed by affirming the judgment of

conviction and order on sentence passed by the trial

Court.

4. Learned counsel for petitioner would contend

that the alleged contract entered into by respondent -

complainant with petitioner - accused is not legally

enforceable since there was restriction on petitioner -

accused not to re-entrust the work allotted to him under

tender by the BESCOM to any third party. Therefore,

alleged liability is not legally enforceable. Petitioner -

accused could not send his reply to the legal notice as his

counsel advised him that suit filed by respondent -

complainant is pending and it can be agitated there.

Document stated to be Ex.P.9 has been created by

respondent - complainant in collusion with employees of

petitioner - accused. Said letter was not produced earlier

in the case and it was produced subsequently. Respondent

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- complainant has not placed on record any evidence to

show that he had capacity to invest huge sum of

Rs.3,00,00,000/- in the alleged work. Defence of

petitioner - accused is that respondent - complainant was

employee under him, cheque was issued to him for making

payment of salary/wages of his employees, subsequently

he had paid the amount in cash, but said cheque was not

returned and has been misused. Said defence has been

put to P.W.1 in his cross-examination. Defence of

petitioner - accused has been established on the basis of

material placed on record and therefore, there is no

necessity for petitioner - accused to lead any defence

evidence. In the appeal, petitioner - accused has filed

application under Section 91 read with Section 311 Cr.P.C.

along with memo and documents seeking permission of

the Court to produce those documents and said application

has not been considered. The appellate Court has not

passed any orders on the said application. He has placed

reliance on the decision of the Hon'ble Supreme Court in

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the case of Yelahanka Merchants Finance Company

Vs. Savitha reported in 2024 (2) Kar.L.R. 65. If an

application is filed under Section 391 of Cr.P.C. for

adducing additional evidence, the matter requires to be

remanded. He further contended that as capacity and

source of income is not established said aspect will rebut

the presumption and on that point he placed reliance on

the decision of the Hon'ble Apex Court in the case of John

K. Abraham Vs. Simon C. Abraham and another

reported 2014 (2) SCC 236, K. Subramani Vs. K.

Damodara Naidu reported in 2015 (1) SCC 99,

Charlies Harry Vs. Praveen Jain reported in 2023 (4)

AKR 638 and N. Padmavathi Vs. Rajanna reported in

2024 (3) KCCR 2256. He also placed reliance on the

following decisions on the points urged by him.

I. S.N. Lakshmipathi Vs. M. Suresh, 2024 (4)

Kar.L.R. 221

II. K.S. Ranganath Vs. Vittal Shetty, 2022 (1) KCCR

1 (SC)

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III. Dattatraya Vs. Sharanappa, (2024) 8 SCC 418

IV. Basalingappa Vs. Mudibasappa, 2019 (5) SCC

V. H.R. Sheshadri Vs.U.V.Nataraj, 2024 (4) KCCR

VI. Jalaja alias Jalajakshi Vs. G. Venkta Durga

Sarojini, 2023 (1) AKR 433

On these grounds, he prayed to allow the revision petition

and acquit petitioner - accused.

5. Learned counsel for respondent - complainant

would contend that Ex.P.9 - letter of petitioner - accused

is on his letterhead and it bears his signature and in the

said letter cheque number, amount, date etc., are all

mentioned. Said letter Ex.P.9 has been sent by petitioner -

accused through post from Davanagere to Tumakuru to

the address of respondent - complainant and postal cover

is at Ex.P.10. Petitioner - accused had taken up the

defence that the cheque was given to respondent -

complainant for making payment of employees working

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under him, subsequently he paid cash, cheque had not

been returned to him and cheque had been misused. Said

defence has not been established. Suggestion put to P.W.1

in that regard has been denied by him. Petitioner -

accused has not entered the witness box to establish the

said defence. Petitioner - accused who has simply denied

Ex.P.9 letter has not chosen to examine any of his

employees to prove that it is created one. Even petitioner

- accused has not entered into witness box to prove that

said letter is created. Petitioner - accused has not denied

his signature on Ex.P.9 - letter and that letter is on his

letterhead. Ex.P.11 is a document whereunder respondent

- complainant has availed loan of Rs.50,00,000/- which

itself establishes that he had money for carrying out the

work entrusted by petitioner - accused to him. Decisions

relied upon by learned counsel for petitioner - accused

with regard to financial capacity of respondent -

complainant are in the matters wherein loan had been lent

by complainant to accused. But, in the case on hand there

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is no such lending by complainant to accused. Petitioner -

accused has not filed any complaint against respondent -

complainant or any other persons for misusing the cheque

issued by him or for creation of the letter - Ex.P.9.

Petitioner - accused who had filed application under

Section 91 Cr.P.C. (for summoning documents) and

Section 311 Cr.P.C. (recalling of witnesses or issuance of

summons to persons) but it is not filed under Section 391

of Cr.P.C. for leading additional evidence. Even documents

produced along with the said application are taken into

consideration, they will not prove the case of petitioner -

accused. As no proper application was filed, the appellate

Court has not considered the said application. He placed

reliance on the following decisions.

I. S.N. Jyothi Vs. M.S. Subramani, 2025 (2) AKR

II. Smt. B.l. Lolakshmma Vs. Srikanth S.D.

Lakshminarayana, 2025 (2) AKR 313

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III. M/s. Eminence Build Tech Pvt. Ltd., Bangalore

and others Vs. V. Vijayakumar, 2025 (1) AKR

IV. H.G. Suman Vs. Vincent Pinto, 2025 (2) AKR 45

V. R.K. Surendra Babu Vs. C. Ashoka, 2025 (1) AKR

6. Having heard learned counsel for the parties

this Court has perused the impugned judgments, trial

Court records and appellate Court records.

7. It is the specific case of respondent -

complainant that petitioner - accused who had got

contract work from BESCOM had entrusted the contract

work to the complainant to carry out in the name of

accused and therefore, there were no documents in that

regard as there was restriction in the contract not to

entrust the work to third parties. It is further case of

respondent - complainant that petitioner - accused paid

some amount due by him to respondent - complainant for

the work carried out and he was due in a sum of

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Rs.1,10,00,000/- and for making part payment of the

same he had issued cheque - Ex.P.1 and sent it to

respondent - complainant by post along with letter -

Ex.P.9. Petitioner - accused has not disputed his signature

on the cheque - Ex.P.1. As signature on the cheque is not

disputed, a presumption has to be drawn under Section

139 of N.I. Act that the cheque is issued for discharge of

liability. Said presumption is a rebuttable presumption.

Standard of proof for rebutting the said presumption is

that of preponderance of probability. The Hon'ble Apex

Court in the case of 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 standard of proof for

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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."

8. As per the ratio laid down in the said decision it

is not necessary for the accused to lead defence evidence

to prove his defence and he can rebut the presumption

based on the materials brought on record by the parties.

Petitioner - accused has not produced any documents in

support of his contention. Defence of petitioner - accused

is that he had given cheque - Ex.P.1 to respondent -

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complainant in order to make payment of salary/wages to

his employees through his managers Basavaraju S.M. and

N. Jagadeeshwaraiah, subsequently he got cash, he paid

cash but, respondent - complainant has not returned the

said cheque. Said defence had been suggested to P.W.1 in

his cross-examination, but, P.W.1 has denied the said

suggestion. In order to establish the said defence, except

the said suggestion, no other material has been brought

on record. Staff of petitioner - accused, namely

Basavaraju S.M. and N. Jagadeeshwaraiah have not been

examined. Even said defence has not been stated initially

while sending reply to legal notice - Ex.P.3 which is served

on petitioner - accused as per postal acknowledgement -

Ex.P.5 on 03.04.2017. It is the contention of petitioner -

accused that he has not issued reply notice as suit was

pending as on the date of service of notice and his counsel

had advised him that matter can be agitated in the

pending suit. In his written statement - Ex.P.8 filed in

O.S. No.2331/2017 petitioner - accused has stated that he

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has been served with legal notice during first week of May,

2017. Considering Ex.P.5 - postal acknowledgement said

contention that notice was served during May, 2017 is

false. Even though suit in O.S. No. 2331/2017 was filed on

01.04.2017, petitioner - accused who was defendant in

that said suit was not aware of pendency of the said suit

since summons/notice was not served on him as on the

date when legal notice was served on him.

9. Decisions relied upon by learned counsel for

petitioner - accused that the complainant has to prove his

capacity are rendered in cases where in cheques were

issued for repayment of money borrowed. In the case on

hand there is no such loan transaction between

complainant and accused. Document produced at Ex.P.11

- memorandum of deposit of title deed executed by

respondent - complainant in favour of Sneha Sangama

Souharda Pattina Sahakari Niyamita, Tumakuru establish

that respondent - complainant had borrowed

Rs.50,00,000/- loan on 30.04.2015 and Ex.P.2 indicates

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that he availed mortgage loan of Rs.25,00,000/- and O.D.

loan of Rs.25,00,000/- from Sneha Sangama Souharda

Pattina Sahakari Niyamita, Tumakuru on 28.04.2015. Said

documents establish that respondent - complainant had

funds for carrying out the work entrusted to him by

petitioner - accused.

10. It is submitted that the suit filed by respondent

- complainant against petitioner - accused for recovery of

Rs.1,10,00,000/- in O.S. No. 2331/2017 has been decreed

and execution case filed by respondent - complainant to

execute the decree passed in the said suit is pending. It is

also submitted that petitioner - accused has challenged

the judgment and decree passed in O.S. No. 2331/2017

and appeal is pending before this Court. Said aspect itself

indicates that the claim of respondent - complainant

against petitioner - accused is legally enforceable liability.

11. Petitioner - accused, in the appeal filed before

the Sessions Court, had filed an application under Section

91 read with Section 311 of Cr.P.C. seeking permission to

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produce documents with a memo. Under the said memo

following documents were sought to be produced:

II. Written Statement filed in OS.

III. Affidavit filed by Jagadeeshwaraiah in

IV. Counter affidavit filed by Jagadeeshwaraiah in MFA . 5866/2017 V. Objection to counter affidavit filed by Hemachandra in MFA. 5866/2017 VI. Affidavit filed in MFA. No.5866/2017 by K.G.Sadashivaiah VII. Order passed in MFA.5866/2017.

12. On perusal of the said documents it is clear that

even if those documents were taken on record, they will

not establish the case/defence of petitioner - accused.

More so, the application filed by petitioner - accused is not

under the correct provision of law. Therefore, the appellate

Court might not have taken the said application into

consideration. Even if the said application was allowed and

documents produced along with the said application were

taken on record, the same would not have established the

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defence of petitioner - accused. Considering all these

aspects learned Magistrate has rightly appreciated the

evidence on record and convicted the petitioner - accused

for offence under Section 138 of N.I. Act. The appellate

Court also rightly re-appreciated the evidence on record

and affirmed the conviction of petitioner - accused for

offence under Section 138 of N.I. Act.

13. Sentence passed by the trial Court and affirmed

by the appellate Court is, simple imprisonment for a period

of 1 year and fine of Rs.32,00,000/-.

14. Purpose and object of offence under Section

138 of N.I. Act is to see that the negotiable

instrument/cheque is to be honoured and the drawee gets

back his amount due under the cheque. Purpose and

object of the said provision is not to send the accused to

the prison to suffer sentence of imprisonment. Therefore,

sentence of imprisonment passed by the trial Court and

affirmed by the appellate Court requires to be set aside by

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maintaining the fine/compensation amount as awarded by

the trial Court.

15. For the reasons stated above, I proceed to pass

the following;

ORDER

I. Revision petition is allowed in part.

II. Conviction of petitioner - accused for offence

under Section 138 of N.I. Act passed by the trial

Court and affirmed by the appellate Court is

affirmed.

III. Sentence of simple imprisonment for one year

passed by the trial Court and affirmed by

appellate Court is set aside.

IV. Imposition of fine and award of compensation

are maintained and affirmed.

Sd/-

(SHIVASHANKAR AMARANNAVAR) JUDGE LRS