Karnataka High Court
Sri M Ramesha vs Sri G.V. Ashwathanarayana Reddy on 18 June, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.RP No. 457 of 2016
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL REVISION PETITION NO. 457 OF 2016
BETWEEN:
SRI. M. RAMESHA
S/O GANTE MUNIYAPPA
AGED ABOUT 34 YEARS
R/AT MUTHUGADAHALLI VILLAGE
SHIVAKOTE POST
HESARAGHATTA HOBLI
BANGALORE NORTH TALUK
BANGALORE-560 089
...PETITIONER
(BY SRI. PRAKASHA M, ADVOCATE)
AND:
SRI. G.V. ASHWATHANARAYANA REDDY
S/O LATE VENKATA REDDY
AGED ABOUT 55 YEARS
Digitally signed by
LAKSHMINARAYANA R/AT GOLLAHALLI VILLAGE
MURTHY RAJASHRI
MANDIGALU POST
Location: HIGH
COURT OF CHINTAMANI TALUK
KARNATAKA
CHIKKABALLAPURA DIST.-563 125
...RESPONDENT
(BY SRI. N.R. NAIK, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 OF CR.P.C PRAYING TO SET ASIDE THE
IMPUGNED CONVICTION ORDER DATED 13.05.2015 IN
C.C.NO.103/2011 PASSED BY THE ADDL. CIVIL JUDGE AND
JMFC, CHINTAMANI AND FURTHER CONFIRMED VIDE ORDER
DATED 13.01.2016 IN CRL.A.NO.42/2015 PASSED BY THE II
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CRL.RP No. 457 of 2016
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ADDL. DIST. AND S.J., CHIKKABALLAPURA (SITTING AT
CHINTAMANI).
THIS PETITION COMING ON FOR DICTATING ORDERS
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 13.01.2016 passed in Crl.A. No. 42/2015
by II Additional District and Sessions Judge,
Chikkaballapura (sitting at Chintamani) where under the
judgment of conviction dated 13.05.2015 passed in C.C.
No. 103/2011 by Additional Civil Judge and JMFC,
Chintamani convicting the petitioner for offence punishable
under Section 138 of the Negotiable Instruments Act
(hereinafter referred to as the N.I. Act) has been affirmed.
2. Heard learned counsel for petitioner - accused
and learned counsel for respondent - complainant.
3. Case of the respondent - complainant is that
the petitioner - accused had borrowed hand loan of
Rs.1,00,000/- for his family and other legal necessities in
the second week of January 2010 before the witnesses,
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namely. Sri. Rajanna, Sri. L.A. Maregowda, Sri. C.
Vasudev and Sri. Shaik Hussain and agreed to repay
within 3 months and accordingly the respondent -
complainant requested the petitioner - accused for
repayment of the said hand loan. The petitioner - accused
gave cheque dated 10.04.2010 bearing No. 578613 for
Rs.1,00,000/- drawn on State Bank of India, Yelahanka
New Town Branch, Bangalore. The respondent -
complainant presented the said cheque for realization on
20.09.2010 and it was returned unpaid for reason
`insufficient funds' under memo dated 20.09.2010 which
was received on 15.10.2010. Thereafter the respondent -
complainant got issued a legal notice dated 03.11.2010 by
registered post which was returned with shara that `party
refused', but, notice sent under certificate of posting was
personally served on 12.11.2010. The petitioner - accused
neither replied nor complied the demand made in the
notice and therefore the respondent - complainant filed
complaint against the petitioner - accused for offence
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punishable under Section 138 of the N.I. Act. The
respondent - complainant examined himself as P.W.1 and
got marked Ex.P.1 to Ex.P.7 and also examined two
witnesses as P.W.2 and P.W.3. Statement of the petitioner
- accused has been recorded under Section 313 of Cr.P.C.
The petitioner - accused has not led any defense evidence.
The trial Court appreciating the evidence on record has
convicted the petitioner - accused for offence under
Section 138 of the N.I. Act. Said judgment of conviction
was challenged by the petitioner - accused before the
Sessions Court in Crl.A. No. 42/2015. Said appeal came to
be dismissed affirming the judgment of conviction.
4. Learned counsel for petitioner - accused would
contend that the cheque has not been issued for payment
of debt but it has been issued for a different transaction to
some other person and that cheque has been misused by
the respondent - complainant. He placed reliance on the
documents produced under memo at the time of recording
statement under Section 313 of Cr.P.C. that the cheque
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has been issued to one Sri. Lakshmaiah as a security for
the transaction entered into by the petitioner with him. He
further contended that the notice sent under certificate of
posting has been served on the petitioner on 06.11.2010
and the notice sent by RPAD/Speed Post returned with
endorsement `party refused' and on the cover of the said
notice it is endorsed that `delivery has been attempted on
06.11.2010' and therefore there is deemed service of
notice on 06.11.2010. Considering the said deemed
service of notice on 06.11.2010, the complaint filed on
23.12.2010 is beyond period of limitation. He further
contended that there is interpolation in the date of cheque
Ex.P.1 and petitioner - accused made an application to
send the cheque to an expert to ascertain the said
interpolation, but, his application has been rejected and
the said order rejecting the application has not been
challenged. He placed reliance on the following decisions.
(i) Crl. Revision Petition No.1888/2016 -
Channappa Vs. Thimmaiah
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(ii) 2010 Crl.L.J 3315 - T.S. Muralidhar Vs. H.
Narayana Singh
(iii) ILR 2008 KAR 4629 - Shiva Murthy Vs.
Amruthraj
(iv) 2001 (1) KCCR 437 - Sri. G.Premdas Vs.
Sri. Venkataraman
(v) AIR 2024 SC 4103 - Sri. Dattatraya Vs.
Sharanappa
(vi) (2011) 4 SCC 726 - Tatipamula Naga Raju
Vs. Pattem Padmavathi
5. Learned counsel for respondent - complainant
would contend that the R.P.A.D./Speed Post cover has
been returned after 12.11.2010 to the respondent and
therefore, service has to be considered on 12.11.2010 and
complaint filed on 23.12.2010 is within time. The
allegation of interpolation on the date of the cheque has
not been established. The order rejecting the application
has not been challenged and it became final. P.W.2 and
P.W.3 have been examined who have deposed regarding
the transaction of petitioner - accused borrowing
Rs.1,00,000/- from the respondent - complainant. The
signature on the cheque is admitted and therefore a
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presumption has to be drawn under Section 139 of the
N.I. Act that the cheque is issued for discharge of debt.
The said presumption has not been rebutted. Considering
the said aspect, the trial Court has rightly convicted the
petitioner - accused for offence under Section 138 of the
N.I. Act. The appellate Court re-appreciating the evidence
on record has rightly dismissed the appeal, affirming the
judgment of conviction.
6. Having heard the learned counsel for the
parties, this Court has perused the impugned judgments
and the trial Court records.
7. Signature on the cheque has been admitted by
the petitioner - accused. As the signature is admitted, a
presumption has to be drawn that the cheque has been
issued for discharge of a debt. Said presumption is a
rebuttable presumption. The standard of proof for
rebutting the said presumption is preponderance of
probability.
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8. The petitioner - accused has taken up the
defence that the cheque is issued to one Sri. Lakshmaiah
in a different transaction as a security for that transaction
and that cheque has been misused by the said Sri.
Lakshmaiah through this respondent - complainant. In
that regard, suggestion has been made to the respondent
- complainant who has been examined as P.W.1 and said
suggestion has been denied by him. In order to establish
the said defence, the petitioner - accused at the time of
his examination under Section 313 of Cr.P.C. has given his
statement in writing and also produced memo with
documents. The documents produced by the petitioner -
accused will not indicate any transaction between Sri.
Lakshmaiah and the petitioner- accused. Therefore, the
petitioner - accused has failed to establish his defence
that he had given cheque to one Sri. Lakshmaiah as
security for transaction entered into with the said Sri.
Lakshmaiah. Therefore, presumption drawn under Section
139 of N.I. Act remains unrebutted.
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9. Learned counsel for petitioner - accused placing
reliance on the decision in the case of Channappa (supra)
has contended that no document has been produced to
prove lending of money by the respondent - complainant
to the petitioner - accused.
10. In view of non-rebuttal of presumption drawn
under Section 139 of N.I. Act, the complainant need not
prove the alleged transaction of lending. Said presumption
would enure to the benefit of the respondent -
complainant that the cheque was issued for discharge of
debt.
11. 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
on the cheque/negotiable instrument are established,
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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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12. Further, 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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13. Learned counsel for petitioner - accused would
contend that there is interpolation on the date of cheque
Ex.P.1. On looking to the date on the cheque, Ex.P.1 with
bare eyes, one can find no interpolation in the date.
14. Learned counsel for petitioner - accused would
contend that cheque is issued in the month of January and
month January, that is, `1' has been altered to `4'. As per
the case of the respondent - complainant, the alleged
lending of money is during second week of January 2010
and cheque has been issued for making repayment of the
amount borrowed during April 2010. Said alleged
interpolation has not been established by producing any
cogent evidence. Application filed by the petitioner seeking
appointment of an expert to ascertain interpolation on the
date of check has been rejected by the trial Court and as
no challenge is made to the said order, it has attained
finality.
15. Learned counsel for petitioner - accused would
contend that when Rs.1,00,000/- has been paid by the
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respondent - complainant to the petitioner - accused has
not been stated either in complaint or in evidence. On
perusal of complaint and evidence of respondent -
complainant i.e. P.W.1 there is specific mention that the
lending of money is during second week of January, 2010.
Even P.W.2 and P.W.3 have stated that the petitioner -
accused has borrowed Rs.1,00,000/- from the respondent
- complainant during January, 2010.
16. The demand notice has been issued on
03.11.2010 and the said demand notice has been issued
by speed post with acknowledgment due and also under
certificate of posting. Ex.P.4 is the postal receipt and
Ex.P.5 is certificate of posting. Ex.P.6 is return postal
cover sent by Speed Post. Notice sent under certificate of
posting is an ordinary post. On Ex.P.6 - return postal cover
there is an endorsement that on 06.11.2010 delivery has
been attempted and there is an endorsement `DL', that is,
`door locked'. There is an endorsement on it on
08.11.2010 as `ID' that is, `intimation delivered'. On the
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said cover there is an endorsement by the postal authority
that `article has been returned as party refused'. If
intimation delivery on 08.11.2010 is taken as deemed
service of notice, the complaint filed on 23.12.2010 is
within one month from the date of cause of action, i.e.
24.11.2010 as required under Section 142(b) of the N.I.
Act.
17. Therefore the contention of the learned counsel
for petitioner - accused that there is delay in filing the
complaint is not sustainable.
18. Learned counsel for petitioner - accused would
contend that the cheque is dated 10.04.2010 and it has
been presented on 29.09.2010 for encashment. What was
the reason for delay in presenting the cheque has not
been put forth by the respondent - complainant.
19. The respondent - complainant who has been
examined as P.W.1, in his cross-examination, has stated
that cheque was misplaced and therefore he presented the
cheque during September, 2010.
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20. The cheque is dated 10.04.2010 and validity of
cheque is for 6 months and during validity of the cheque it
can be presented. The cheque presented on 29.09.2010 is
within its validity.
21. Considering all the above aspects and
appreciating the evidence on record, the trial Court has
rightly convicted the petitioner - accused under Section
138 of the N.I. Act. The appellate Court reappreciated the
evidence on record and rightly dismissed the appeal filed
by the petitioner - accused challenging the judgment of
conviction. Considering all these aspects, there are no
grounds to set aside the well reasoned judgments passed
by the trial Court and the appellate Court.
22. In the result, petition is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
