Karnataka High Court

Sri Kayamada N Kariyappa vs Sri.M.A.Uthappa on 16 June, 2025

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF JUNE, 2025

                       BEFORE
         THE HON'BLE MS JUSTICE J.M.KHAZI
    CRIMINAL REVISION PETITION NO.999 OF 2016
BETWEEN:

   SRI KAYAMADA.N.KARIYAPPA
   S/O LATE NANJAPPA,
   AGED ABOUT 42 YEARS,
   R/OF THINDLU MAIN ROAD,
   K.V.K.TIMBER, VIDYARANYAPURA,
   BANGALORE-560090

                                         ...PETITIONER

(BY SMT.ARCHANA.K.M, AMICUS CURIAE)

AND:

  SRI.M.A.UTHAPPA
  S/O LATE ACHAPPA
  AGED ABOUT 67 YEARS,
  R/OF M.B.HOUSE,
  NALVATHOKALU VILLAGE,
  VIRAJPET TALUK
  KODAGU DISTRICT-571218

                                         ...RESPONDENT

(BY SRI.K.S.BHEEMAIAH, ADVOCATE)

    THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT DATED 19.10.2015 IN C.C.NO.767/2012
PASSED BY THE CIVIL JUDGE AND J.M.F.C., VIRAJPET,
CONVICTING AND SENTENCING THE PETITITONER TO
UNDERGO SIMPLE IMPRISONMENT FOR A TERM OF SIX
MONTHS AND TO PAY A FINE OF RS.5,000/- AND IN DEFAULT
TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 3
MONTHS AND TO PAY COMPENSATION OF RS.4,50,000/- AND
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 THE JUDGMENT DATED 7.06.2016 PASSED BY THE II ADDL.
 DISTRICT AND SESSIONS JUDGE, KODAGU-MADIKERI,
 SITTING AT VIRAJPET IN CRL.A.NO.39/2015 CONFIRMING THE
 JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE
 CIVIL JUDGE AND J.M.F.C., VIRAJPET THEREBY ALLOWING
 THIS    PETITION    CONSEQUENTLY     DISMISSING    THE
 C.C.NO.767/2012 FILED BY THE RESPONDENT WITH COSTS.

     THIS PETITION HAVING BEEN HEARD AND RESERVED
 FOR ORDERS ON 24.04.2025, THIS DAY ORDER WAS
 PRONOUNCED THEREIN AS UNDER:
 CORAM:      HON'BLE MS JUSTICE J.M.KHAZI


                           CAV ORDER


     In this petition filed under Section 397 r/w 401 Cr.P.C,

accused has challenged his conviction and sentence for the

offence     punishable   under    Section      138     of     Negotiable

Instruments Act ('N.I Act' for short).


       2.     For the sake of convenience, parties are referred

to by their ranks before the trial Court.


       3.     Complainant filed the complaint under Section

200 Cr.P.C against the accused alleging that he and accused

are known to each other since many years. During the first

week of April 2009, accused requested for financial help of

₹4,25,000/-, to meet his financial emergency and promised

to   repay    the   same   within      short   time.        Accordingly,
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complainant paid a sum of ₹2,50,000/- through cheque and

balance of ₹1,75,000 by way of cash. Though initially

accused went on postponing repayment, on 30.12.2011, he

issued    cheque      for   ₹4,25,000/-    with     an   assurance   of

payment on presentation. However, when complainant

presented the cheque to the bank through his account, it

was dishonoured for want of sufficient funds. In this regard

complainant got issued legal notice dated 11.01.2012. It

was returned for 'Want of correct address'. Therefore,

complainant      served     the    legal   notice   to   the    accused

personally on 28.01.2012. Accused has neither paid the

amount due nor sent any reply and hence, the complaint.


         4.   After     due    service     of    summons,       accused

appeared and contested the case. He pleaded not guilty and

claimed trial.


         5.   In   order      to   prove   the    allegations   against

accused, complainant examined himself as PW-1 and got

marked Exs.P1 to 6.
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         6.    During the course of his statement under Section

313 Cr.P.C, the accused has denied the incriminating

evidence led by the complainant.


         7.    Accused has also given evidence as DW-1. He

also examined one witness as DW-2. However, since he is

not tendered for cross-examination, his evidence came to

be discarded by the trial Court.


         8.    The trial Court on appreciation of oral and

documentary evidence led by both parties, accepted the

case of the complainant and convicted the accused and

sentenced to pay fine of ₹5,000/- and compensation in a

sum of ₹4,50,000/- with the default sentence.


         9.    Aggrieved by the same, accused approached the

Sessions Court in Crl.A.No.39/2015. It also came to be

dismissed by confirming the judgment and order of the trial

Court.


         10.    Aggrieved by the concurrent findings of the

trial Court and Session Court, accused has filed this revision

petition, contending that the judgment and order of the trial
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Court   and    Sessions   Court   are   illegal,   arbitrary   and

capricious. They are liable to be set aside. Both Courts have

failed to appreciate that accused has borrowed only a sum

of ₹2,50,000/- which was paid to him through cheque. Out

of this, he has repaid ₹1,40,000/- and due to pay was only

₹1,10,000/-. At the time of borrowing loan of ₹2,50,000/-,

accused had given three blank cheques by way of security.

Misusing one of them, complainant has filed this complaint.


        10.1   Complainant has not proved the existence of a

legally enforceable debt or liability. Unless and until he

prove the same, presumption under Section 118 and 139 of

the N.I Act is not attracted. The Courts below have not

assessed the evidence placed on record in right perspective

and therefore their findings are perverse. During the

dependency of proceedings before the trial Court, the

parties arrived at a settlement for ₹3 lakhs and before the

settlement, accused has paid ₹50,000/- in cash to the

complainant.


        11.    On the other hand supporting the impugned

judgment and order passed by the Courts below, the
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learned counsel for complainant would submit that having

regard to the fact that the cheque in question is drawn on

the account of the accused and it bears his signature and on

presentation, it was dishonoured for want of sufficient

funds, the presumption under Section 139 of N.I Act is

operating in favour of the complainant, placing the initial

burden on the accused to rebut the same by establishing

that the cheque was not issued towards repayment of any

legally recoverable debt or liability. Only after that the

burden would shift on the complainant to prove his case. He

would further submit that complainant has proved the basic

facts to enable the shifting of burden on the accused, but

accused has failed to rebut the presumption and therefore

both   trial   Court   and   Sessions   Court   are   justified   in

convicting and sentencing in him and pray to dismiss the

petition.

       12.     Heard arguments and perused the record.


       13.     As rightly submitted by the learned counsel for

accused, having regard to the fact that the cheque is drawn

on the account of accused and it bears his signature and on
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presentation, it is dishonoured for want of sufficient funds

and legal notice is duly served on the accused, presumption

under Section 139 of N.I Act is operating in favour of the

complainant, placing the initial burden on the accused to

rebut the same. The defence taken by the accused is that

he has borrowed only a sum of ₹2,50,000/- which was paid

to him by the complainant through cheque and at that time

he had taken three blank signed cheques. The accused has

also claimed that complainant is running a finance business

and he has repaid a total sum of ₹1,40,000/- to the

complainant in cash in 14 instalments of ₹10,000/- each.

Admittedly, accused has not received any receipts for

having paid 14 instalments of ₹10,000/- each. In fact, he

has claimed that complainant is having a finance office

opposite to Chandrika hotel, Vasanthnagar and some of the

payments were made to an employee working there. If at

all complainant is running a finance and also employed

persons to manage the same, it would be reasonable to

expect the accused to collect receipts for having made the

payment. If the complainant was not issuing receipts for

having received the payments, there was no impediment for
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the accused to pay the said amount through cheques or

account transfer to the account of complainant.


      14.      In fact, accused choose examine one C Umesh

as DW-2 and he has stated that the complainant is running

a   finance    business,   opposite    to   Chandrika    Hotel,

Vasanthnagar and loan taken by complainant was only

₹2,50,000/- and out of it he has repaid ₹1,40,000/- by way

of cash in instalments at ₹10,000 each/-. However, accused

has not chosen to tender him for cross-examination. As a

result, the testimony of DW-2 is discarded. Consequently,

except the interested testimony of accused, there is nothing

on record to prove that the loan borrowed by accused was

only ₹2,50,000/- and out of it he has already repaid

₹1,40,000/. Admittedly, accused has also not instructed the

bank to stop payment of the cheques issued to the

complainant.


      15.     In the light of the same, the trial Court as well

as the Sessions Court are justified in not accepting the

defence of the accused and on the other hand, accepting

the case of the complainant and convicting and sentencing
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him. There is no perversity in the conclusions arrived at and

findings given by them, calling for interference by this

Court. In the result, petition fails and accordingly the

following:

                                ORDER

(i) Petition filed by the accused under Section

397 r/w 401 Cr.P.C is hereby dismissed.

(ii) The impugned judgment and order dated

19.10.2015 in C.C.No.767/2012 on the file

of Civil Judge and JMFC, Virajpet and

judgment and order dated 07.06.2016 in

Crl.A.No.39/2015 on the file of II Addl.

District and Sessions Judge, Kodagu-

Madikeri, sitting at Virajpet are confirmed.

(iii) The Registry is directed to send back the

trial court and Sessions Court records along

with copy of this order forthwith.