Karnataka High Court

Mr S Dhananjaya Naidu vs Mr J Dhamodhara Naidu 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.152 OF 2021
                         C/W
   CRIMINAL REVISION PETITION NO.160 OF 2021,
    CRIMINAL REVISION PETITION NO.749 OF 2021


IN CRL.RP NO.152/2021
BETWEEN:

   MR. S DHANANJAYA NAIDU
   S/O VENKATARAMANA NAIDU,
   AGED ABOUT 53 YEARS,
   R/AT NO. 222, 3RD MAIN,
   MANASA RESIDENCY, BOB COLONY,
   J P NAGAR, 7TH PHASE,
   BENGALURU - 560 078

                                          ...PETITIONER

(BY SRI.SRIDHARA K, ADVOCATE)

AND:

   MR J DHAMODHARA NAIDU
   S/O J GANGAM NAIDU,
   AGED ABOUT 60 YEARS,
   R/AT NO. 25, RAM MANDIR RD,
   KAVERI NAGAR, KATRIGUPPE
   BENGALURU - 560 085

                                          ...RESPONDENT

(BY SMT.MANJULA.N.TEJASVI, ADVOCATE A/W
SRI.RAGHAVENDRA.L.MISKIN, ADVOCATE)
                           -2-




      THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION PASSED IN
C.C.NO.15569/2017 DATED 05.03.2019 ON THE FILE OF THE
XII A.C.M.M., AT BENGALURU FOR THE OFFENCE P/U/S 138 OF
THE N.I ACT AND ALSO SET ASIDE THE JUDGMENT AND
ORDER DATED 10.02.2020 PASSED IN CRL.A.NO.884/2019 ON
THE FILE OF THE CITY CIVIL AND SESSIONS JUDGE (CCH-66)
BENGALURU AND ETC.,

IN CRL.RP NO.160/2021
BETWEEN:

   MR. S DHANANJAYA NAIDU
   S/O VENKATARAMANA NAIDU,
   AGED ABOUT 53 YEARS,
   R/AT NO. 222, 3RD MAIN,
   MANASA RESIDENCY, BOB COLONY,
   J P NAGAR, 7TH PHASE,
   BENGALURU - 560 078

                                          ...PETITIONER

(BY SRI.SHRIDHARA K, ADVOCATE-ABSENT)

AND:

   MR J DHAMODHARA NAIDU
   S/O J GANGAM NAIDU,
   AGED ABOUT 60 YEARS,
   R/AT NO. 25, RAM MANDIR RD,
   KAVERI NAGAR, KATRIGUPPE
   BENGALURU - 560 085

                                          ...RESPONDENT

(BY SRI.RAGHAVENDRA.L.MISKIN, ADVOCATE)

      THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION PASSED IN
C.C.NO.21066/2017 DATED 05.03.2019 ON THE FILE OF THE
XII A.C.M.M., AT BENGALURU FOR THE OFFENCE P/U/S 138 OF
THE N.I ACT AND ALSO SET ASIDE THE JUDGMENT AND
                           -3-




ORDER DATED 10.02.2020 PASSED IN CRL.A.NO.885/2019 ON
THE FILE OF THE LXV ADDL. CITY CIVIL AND SESSIONS JUDGE
(CCH-66) BENGALURU AND ETC.,

IN CRL.RP NO.749/2021
BETWEEN:

   MR. S DHANANJAYA NAIDU
   S/O VENKATARAMANA NAIDU,
   AGED ABOUT 53 YEARS,
   R/AT NO. 222, 3RD MAIN,
   MANASA RESIDENCY, BOB COLONY,
   J P NAGAR, 7TH PHASE,
   BENGALURU - 560 078

                                          ...PETITIONER

(BY SRI.SRIDHARA K, ADVOCATE)

AND:

   MR J DHAMODHARA NAIDU
   S/O J GANGAM NAIDU,
   AGED ABOUT 60 YEARS,
   R/AT NO. 25, RAM MANDIR RD,
   KAVERI NAGAR, KATRIGUPPE
   BENGALURU - 560 085

                                          ...RESPONDENT

(BY SMT.MANJULA.N.TEJASVI, ADVOCATE A/W
SRI.RAGHAVENDRA.L.MISKIN, ADVOCATE)

      THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION PASSED IN
C.C.NO.15568/2017 DATED 05.03.2019 ON THE FILE OF THE
XII A.C.M.M., AT BENGALURU FOR THE OFFENCE P/U/S 138 OF
THE N.I ACT AND ALSO SET ASIDE THE JUDGMENT AND
ORDER DATED 10.02.2020 PASSED IN CRL.A.NO.883/2019 ON
THE FILE OF THE CITY CIVIL AND SESSIONS JUDGE (CCH-66)
BENGALURU AND ETC.,
                               -4-




    THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 21.04.2025, THIS DAY ORDER WAS
PRONOUNCED THEREIN AS UNDER:
CORAM:    HON'BLE MS JUSTICE J.M.KHAZI


                        CAV ORDER


     In these petitions filed under Section 397 r/w Section

401 of Cr.P.C, accused has challenged his conviction and

sentence for the offence of punishable under Section 138

of Negotiable Instrument Act (for short "N.I.Act") by the

trial Court, which came to be confirmed by the Sessions

Court by dismissing the appeals filed by him.


     2.   In the criminal cases out of which these petitions

have arisen, the complainant and accused are common. In

all the cases the contention taken by the complainant and

defence of the accused are same. They also involve

common     discussion   and   findings.     Therefore,   all   the

petitions are taken together and disposed off by a common

order.


     3.    For the sake of convenience, parties are referred

to by their ranks before the trial Court.
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     4.    It is the case of the complainant that he and

accused entered into a sale agreement dated 26.11.2014,

by which, accused who is the owner of the flat agreed to

sell the same to the complainant for a total sum of ₹40

lakhs. By way of advance, complainant paid ₹15 lakhs and

he was required to pay balance consideration of ₹25 lakhs

on the date of registration. Accused agreed to complete

the construction and handover possession of the property

within 15 months from the date of agreement. However,

complainant paid balance consideration of ₹25 lakhs in five

instalments on the following dates .

     1) Rs.6,50,000/- on 21.12.2014,
     2) Rs.5,00,000/- on 28.12.2014,
     3) Rs.5,00,000/- on 13.01.2015,
     4) Rs.3,50,000/- on 20.01.2015,
     5) Rs.5,00,000/- on 15.04.2015.


     5. However, the accused failed to complete the

construction within 15 months and execute the sale deed.

On the repeated request and demand by the complainant,

accused made an endorsement on the sale agreement on

09.01.2017 that he would pay the entire sum of Rs.40

lakhs together with additional sum of Rs.14 lakhs towards
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compensation for the delay. He issued three post dated

25.02.2017 cheque for Rs.20 lakhs, dated 30.03.2017 for

Rs.4,00,000/- and cheque dated 28.04.2017 for Rs.30

Lakhs, with an assurance that they would be honoured on

presentation. However, when complainant presented the

cheques for encashment, they were returned dishonoured

for want of sufficient funds and got issued legal notices to

the accused. However, the accused has failed to comply

with the legal notice. On the other hand he sent evasive

reply and therefore, without any alternative complaint is

filed.


         6.   In respect of dishonour of three cheques, the

complainant has filed three separate complaints.


         7.   After due service of summons, accused has

entered appearance through counsel and contested the

case by pleading not guilty.


         8.   In order to prove the allegations against the

accused, in C.C.No.15568/2017 complainant examined

himself as PW-1 and got marked Exs.P1 to 7.
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     9.    In C.C.No.15569/2017, complainant is examined

as PW-1 and Exs.P1 to 6 are marked.


     10.    In    C.C.No.21066/2017,     complainant    is

examined as PW-1 and Exs.P1 to 5 are marked.


     11.    In all these cases, during the course of his

statement under Section 313 of Cr.P.C, accused has

denied the incriminating evidence led by the complainant.


     12.    In all these three cases, the accused has not

led any oral evidence. However, in C.C.No.15568/2017

accused got marked Exs.D1 to 3.


     13.    The trial Court accepted the case of the

complainant and convicted the accused and sentenced him

as detailed in order.


     14.    Accused challenged his conviction and sentence

before the Sessions Court. However, the appeal filed by

him came to be dismissed, confirming the judgment and

order of the trial Court.
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      15.    Aggrieved by the concurrent findings of the trial

Court as well as the Sessions Court, accused is before this

Court, contending that they are illegal, perverse, and bad

in   law.    Courts   below    have        committed     error   while

appreciating the evidence of complainant, since he has

failed to prove the existence of any legally recoverable

debt or liability and has suppressed material facts. At the

same time, the Courts below have failed to appreciate that

accused      has    successfully     rebutted     the    presumption

producing     the     documents          and   through   the     cross-

examination of complainant. When the complainant lost his

claim under Ex.D1, the question of accused having the

liability to pay the amount under cheques would not arise.


      15.1    The accused has established that complainant

extracted the cheques from the accused by exerting force

through his muscle man. Even though accused was ready

to perform his part of contract by executing the sale deed,

complainant was not ready. The complainant has managed

to collect the cheques forcefully from the accused. Though

the alleged liability of accused was Rs.40 lakhs, the
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complainant is not having any explanation as to why he

collected cheques for total sum of Rs.54 lakhs. Such being

the case, the Courts below have committed error in

drawing presumption under Sections 118 and 139 of

N.I.Act and holding that the accused has not rebutted the

presumption. The dispute between the parties is civil in

nature and the complainant has tried to give it criminal

colour. Viewed from any angle the impugned judgment

and orders are not sustainable and hence the petitions.


       16.     In support of his arguments, learned counsel

for accused has relied upon the following decisions:

       (i)     Indus Airways Pvt.Lts Vs. Magnum Aviation Pvt.
               Ltd. (Indus Airways)1

       (ii)    P.Venugopal    Vs.           Madan       P.Sarathi
               (P.Venugopal)2

       (iii)   M.S.Narayana Menon Vs.         State    of   Kerala
               (M.S.Narayana Menon)3


       17. On         the   other    hand    learned    counsel      for

complainant supported impugned judgments and orders.

He would submit that though there was sale agreement
1
  (2014) 12 SCC 539
2
  (2009) 1 SCC 492
3
  (2006) 6 SCC 39
                             - 10 -




between the parties according to which the accused was

supposed to complete construction within 15 months and

execute the sale deed. On account of inordinate delay in

completing the construction, the said agreement came to

an end and accused agreed to refund the amount paid by

the complainant with additional sum of Rs.14 lakhs and

accordingly issued three post dated cheques. When they

were dishonoured for want of sufficient funds and also

failure of the accused to comply with the legal notice,

without any other option, complainant filed the complaints.

Appreciating the oral and documentary evidence placed on

record, the trial Court as well as the First Appellate Court

have rightly convicted and sentenced him. There is no

perversity calling for interference by this Court in exercise

of the revisionary jurisdiction and pray to dismiss the

petitions.


     18.     Heard arguments and perused the record.


     19.     The undisputed facts are that accused offered

to sell a flat to the complainant for a sum of ₹40 lakhs and

entered into a sale agreement dated 26.11.2014. As per
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the terms of the sale agreement, complainant has paid ₹15

lakhs by way of advance and accused agreed to complete

the construction within 15 months and executed the sale

deed. In other words, the construction was supposed to be

completed within 25.02.2016. In the sale agreement, it is

agreed that balance sale consideration of ₹25 lakhs is to

be paid at the time of registration of the sale deed. As per

the terms of the sale agreement, if the complainant failed

to get the sale deed executed within time the advance of

₹15 lakhs would be forfeited.


     20.   Even though the complainant was not required

to pay balance sale consideration before the registration,

from the endorsement made on the sale agreement, it is

evident that for want of funds, the accused has collected

the entire balance sale consideration of ₹25 lakhs, and the

last payment was made on 15.04.2015. The accused has

not produced completion certificate to show that on or

before before 25.02.2016, the construction is completed

and he offered to execute the sale deed. Since already the

entire sale consideration was paid there was nothing to be
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done by the complainant as his part of contract. The

endorsement dated 09.01.2017 made on the flip side of

page 3, clearly indicate that accused has agreed to refund

advance together with compensation, the sum of ₹14 lakhs

and accordingly issued three post dated cheques for total

sum of ₹54 lakhs. Undisputedly, on presentation, the

cheques were dishonoured for want of sufficient funds.


      21.    Having regard to the fact that the cheques are

drawn on the account of accused and they bear his

signature and on presentation, they are dishonoured for

want of sufficient funds and on the failure of accused to

pay    the amount      due despite issue of          legal   notice,

presumption under Section 139 of N.I.Act is attracted,

placing the initial burden on the accused to rebut the

presumption and prove that the cheques were not issued

towards repayment of any legally recoverable debt on

liability   and   on   the   other      hand   to   establish   this

circumstances in which the cheques have gone into the

hands of complainant.
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     22.   In response to the legal notice, the accused

sent reply, contending that though he is ready to execute

the sale deed, complainant was not ready and with the

help of Gunda elements, he has forcefully taken the

cheques from him. Admittedly, the accused has not taken

any criminal action against complainant for having taken

the cheques from him forcefully with the help of Gunda

elements. If not filing any criminal complaint, at least

accused could have instructed his bank not to honour the

cheques by specifying the reasons. However, accused has

not opted to do so. When accused has utilised the sale

consideration of ₹40 lakhs paid by the complainant for

construction of the flat and after lapse of more than two

years, it would be reasonable for the complaint to expect

that his money would be returned along with some

interest. If really complainant had extracted the cheques

forcefully from the accused, the best option available to

him was to instruct the bank to stop payment. The conduct

of the accused is contrary to the defence taken by him.

Therefore, he has failed to rebut the presumption and

prove the defence taken by him and in the light of oral and
                                       - 14 -




documentary evidence, the complainant has proved his

case.


         23.    So far as Indus Airways, referred to supra,

though the Hon'ble Supreme Court held that a cheque

issued by way of security also attract presumption under

Sections 118 and 139 of N.I Act, on facts, it was held that

since the contract between the parties was cancelled, the

complainant was not justified in presenting the cheque and

proceeding           against       the         accused.   Similarly,   in

M.S.Narayana Menon, referred to supra, also on facts it

was held that it was not a loan transaction and acquitted

the accused. Therefore, accused cannot take advantage of

these two decisions.


         24.     So far as P.Venugopal, referred to supra is

concerned, it is based on Krishna Janardhan Bhat Vs.

Dattatraya G.Hegde (Krishna Janardhan Bhat)4, which is

over ruled by the Hon'ble Supreme Court in Rangappa Vs.




4
    (2008) 4 SCC 54: 2008 AIR SCW 738(SC)
                                  - 15 -




Sri Mohan (Rangappa)5. Therefore, accused cannot take

advantage of this decision also.


         25. The trial Court as well as the Sessions court on

appreciation of the oral and documentary evidence placed

on record have rightly held that the allegations against

accused are proved and convicted and sentenced him. The

conclusions arrived at and findings given by the Courts

below are consistent with the evidence on record and there

is no perversity calling for interference by this Court in

exercise of revisionary registration. In the result, the

petitions fail and accordingly the following:

                               ORDER
1. Petitions filed by the accused under Section
397 r/w 401 Cr.P.C are dismissed.
2. The impugned judgments and orders dated
05.03.2019 in C.C.Nos.15568/2017,
15569/2017 & 21066/2017 on the file of
XII ACMM, Bengaluru and judgments and
orders dated 10.02.2020 in
(2010) 11 SCC 441
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Crl.A.Nos.883/2019, 884/2019 and
885/2019 on the file of LXV Addl.City Civil
and Sessions Judge, Bengaluru are