Karnataka High Court
Sri Kishan T C vs M/S Sri Venkatesh Enterprises on 4 June, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:18830
CRL.RP No. 423 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL REVISION PETITION No. 423 OF 2024
BETWEEN:
SRI KISHAN T C
S/O LATE T .G. CHUNDAIA
AGED ABOUT 47 YEARS
RESIDING AT NO.16
3RD CROSS
SAPTHAGIRI LAYOUT
NEAR ZOY SCHOOL
VIDYARANYAPURA
BENGALURU 560 097
Digitally signed
by NIRMALA ...PETITIONER
DEVI
Location: HIGH (BY SRI. PARAMESHWARAPPA M V, ADVOCATE)
COURT OF
KARNATAKA AND:
M/S SRI VENKATESH ENTERPRISES
NO. 48/4, 1ST MAIN
1ST FLOOR, 8TH CROSS
SUDHAMANAGAR
BENGALURU 560 027
REPRESENTED BY ITS MANAGING
OPERATIONS
SRI. T.V. VENKATESH
...RESPONDENT
(BY SRI. BEERESHA H.S, ADVOCATE)
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CRL.RP No. 423 of 2024
HC-KAR
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 OF CR.P.C PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 05.01.2024 PASSED IN
CRL.A.NO.129/2023 PASSED BY THE LXI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-62) AND
ORDER DATED 30.12.2022 PASSED BY THE XX ADDITIONAL
SMALL CAUSES JUDGE AND A.C.M.M. AND MACT, BENGALURU
(SCCH-22) IN C.C.NO.3516/2021 AND ETC.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
1. This revision petition is filed challenging the
impugned judgment dated 05.01.2024 passed in Crl.A. No.
129/2023 by the LXI Additional City Civil and Sessions
Judge, Bengaluru city whereunder the appeal filed by the
petitioner challenging the judgment of conviction dated
30.12.2022 passed in C.C. No. 3516/2021 by the XX
Additional Small Causes Judge and Additional Chief
Metropolitan Magistrate and MACT, Bengaluru (SCCH-22)
for offence under Section 138 of the Negotiable
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Instruments Act (hereinafter referred to as `N.I. Act') has
been dismissed.
2. Heard learned counsel for petitioner and
learned counsel for respondent.
3. Issuance of the cheques has been admitted by
the petitioner - accused. Contention of the petitioner -
accused was that the cheques Ex.P.1 and Ex.P.2 are
issued as security for the transaction between the
petitioner and respondent. As the cheques are admitted a
presumption has been drawn under Section 139 of the N.I.
Act that the cheques are issued for payment of legally
enforceable liability. Said presumption is a rebuttable
presumption. Standard of proof for rebutting the said
presumption is preponderance of probability. Petitioner -
accused has to rebut the said presumption. Except
suggesting that the cheques are issued as a security for
the transaction of the year 2017, there is no other
evidence brought on record to prove the defence. D.W.1
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himself has admitted in his chief-examination that there
was transaction between the petitioner and the
respondent. As the presumption drawn under Section 139
of the N.I. Act has not been rebutted, the trial Court has
rightly convicted the petitioner - accused for offence under
Section 138 of the N.I. Act as other ingredients of the said
offence are established. Even the appellate Court,
considering the grounds raised, has dismissed the appeal
filed by the petitioner - accused challenging the judgment
of conviction.
4. 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
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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 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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5. 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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6. Considering all these aspects there is no
illegality in the impugned judgments passed by the trial
Court and the appellate Court. In the result, revision
petition is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
