Karnataka High Court
Sundar Annasaheb Kamble vs Sandeep S/O Tanai Ghodake on 25 June, 2025
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CRL.RP No. 100078 of 2024
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL REVISION PETITION NO.100078 OF 2024
(397 OF Cr.PC/438 OF BNSS)
BETWEEN:
SUNDAR ANNASAHEB KAMBLE,
AGE: 50 YEARS, OCC: BUSINESS,
R/O. BEHIND CMC, NIPPANI, TAL: NIPPANI,
DIST. BELAGAVI-591237.
...PETITIONER
(BY SHRI HARSHAWARDHAN M. PATIL, ADV. FOR
SHRI RAMESH I. ZIRALI, ADVOCATE)
AND:
SANDEEP S/O. TANAJI GHODAKE,
AGE: 33 YEARS, OCC: BUSINESS,
R/O. KAMGAR CHOWK, NIPPANI,
TQ. NIPPANI, DIST. BELAGAVI-591237.
Digitally signed
by RAKESH S ...RESPONDENT
HARIHAR (BY SHRI SACHIN C. ANGADI, ADVOCATE)
Location: High
Court of
Karnataka,
Dharwad THIS CRIMINAL REVISION PETITION IS FILED U/S.397(1) R/W
Bench 401 OF CR.P.C., SEEKING TO SET-ASIDE THE JUDGMENT PASSED BY
VII ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT
CHIKODI IN CRL.APP NO.5025/2022 DATED 04.10.2023 AND ALSO
TO SET- ASIDE THE JUDGMENT PASSED BY THE SENIOR CIVIL
JUDGE AND JMFC AT NIPPANI IN C.C NO.117/2018 DATED
23.06.2022 FOR THE OFFENCE PUNISHABLE U/S.138 OF
NEGOTIABLE INSTRUMENT ACT BY ALLOWING THIS REVISION
PETITION BY ACQUITTING THE PETITIONER FOR THE ALL THE
CHARGES LEVELED AND CONVICTED HIM, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION IS COMING ON FOR FURTHER HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 100078 of 2024
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ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
Heard Sri.Harshwardhan M.Patil, learned counsel for
Sri.Ramesh I.Patil., learned counsel the petitioner and
Sri.Sachin C.Angadi., learned counsel for respondent.
2. The petitioner-accused has filed this petition
under Section 397(1) read with Section 401 of the Code of
Criminal Procedure (for short 'Cr.P.C.) praying to set-aside
the judgment dated 04.10.2023 passed by learned VII
Additional District and Sessions Judge, Belagavi sitting at
Chikkodi (for short 'First Appellate Court') in
Crl.A.No.5025/2022 and also to set-aside the judgment of
conviction and order of sentence dated 23.06.2022 passed
by learned Senior Civil Judge and JMFC., Nippani (for short
'Trial Court')in C.C.No.117/2018 for the offence punishable
under Section 138 of Negotiable Instrument Act, 1881 (for
short 'N.I.Act').
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3. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court. The
petitioner is the accused and respondent is the
complainant.
4. The brief facts of the complainant's case are as
under:
The complainant filed a private complaint under
Section 200 of Cr.P.C., for the offence punishable under
Section 138 of Negotiable Instruments Act, 1881
contending that, the accused had borrowed loan of
Rs.4,00,000/- from the complainant in the year 2015 for
his family and legal necessity, agreeing to repay the same
within one year. However, the accused failed to make
payment and the accused postponed to make payment on
one or other pretexts, and ultimately, on 19.05.2017, the
accused issued a cheque of Rs.4,00,000/- bearing
No.653054 drawn on State Bank of India, Nippani branch
in favour of complainant. The said cheque was presented
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for encashment. Upon presentation, it was returned with
shara as "Drawers signature to operate account not
received". Thus, complainant got issued legal notice calling
upon the accused to pay amount due under the Cheque,
but, accused neither replied to the legal notice nor paid
amount due under the Cheque. Hence, complainant filed a
private complaint under Section 200 of Cr.P.C., for the
offence punishable under Section 138 of N.I. Act.
5. After institution of the complaint, the Trial Court
recorded the sworn statement of the complainant, took
cognizance under Section 190(1)(a) of Cr.P.C., secured
the presence of accused and recorded his plea.
6. The complainant in order to prove his case,
examined himself as PW1 and relied upon the documents
as Exs.P1 to P5. The accused also examined as DW1 and
got marked Exs.D1 and D2.
7. After hearing both complainant and accused,
the Trial Court convicted the accused for the offence
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punishable under Section 138 of N.I. Act and sentenced to
pay a fine of Rs.4,00,000/- to the complainant.
8. Being aggrieved by the judgment of conviction
and order of sentence passed by the Trial Court, the
accused preferred an appeal before the First Appellate
Court. In turn, the First Appellate Court confirmed the
judgment of conviction and order of sentence passed by
the trial Court. Hence, this petition.
9. Learned counsel for the petitioner vehemently
contended that the cheque in question was issued to the
third party for security purpose and the complaint does
not disclose the exact date of hand loan availed by the
accused. Further, the complainant has failed to prove the
ingredients that the debt in question was legally
recoverable debt and the trial Court has wrongly raised
presumption without noticing that the provisions of Section
138 of N.I.Act does not attract at all in the present case.
On all these grounds, the counsel prays to set-aside the
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judgment passed by First Appellate Court confirming
judgment of conviction and order of sentence passed by
the trial Court.
10. The learned counsel for respondent contended
that the accused has admitted issuance of cheque at
Ex.P.1, signature found in Ex.P.1 and the transaction.
Hence, the Trial Court as well as First Appellate Court has
rightly convicted the petitioner for the offence under
Section 138 of N.I.Act. Thus, he prayed for dismissal of
the revision petition.
11. On perusal of oral testimony of PW.1 and the
documents relied upon by the complainant, it appears that
the accused had borrowed a sum of Rs.4,00,000/- from
complainant and in consideration thereof, he had issued
Ex.P1 - Cheque for a sum of Rs.4,00,000/- drawn on State
Bank of India, Nippani Branch, when the complainant
presented the said Cheque for encashment, the same was
returned with shara as "Drawers Signature to operate
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account not received". Hence, the complainant got issue
legal notice vide Ex.P.3 calling upon the accused to pay
the amount due under the Cheque and in spite of issuance
of legal notice, accused failed to repay amount due under
Cheque - Ex.P1.
12. In the instant case, the complainant has
produced Cheque in question as per Ex.P1, it bears the
signature of accused as per Ex.P1(a), Ex.P.2 is the
Intimation letter, Ex.P.3 is the copy of legal notice, Ex.P.4
is the postal receipt and Ex.P.5 is the postal envelope. In
the instant case, accused has admitted issuance of Ex.P1 -
Cheque. However, he had taken contention that Ex.P.1-
Cheque was issued to 3rd party for security of loan
transaction and thereby, he denied the transaction in the
manner stated by complainant. Therefore, the accused has
disputed transaction with complainant and service of
notice upon him.
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13. As per the provisions of Negotiable Instruments
Act, once a Cheque is signed and handed over to the
complainant by the accused, it would attract presumption
under Section 139 of the N.I. Act, in the absence of any
contra evidence to show that the Cheque was not issued in
discharge of a debt.
14. So far as service of notice upon accused is
concerned, the complainant has furnished Ex.P4 - Postal
receipt and Ex.P5 - postal envelope. It shows that the
complainant got issued legal notice and the same was
refused by the accused as per Ex.P5 - Postal envelope.
15. As per the presumption available under Section
11 of the Post and Telegraphic Act, 1901, if any parcel
addressed to particular addressee, it shall deem that, the
parcel send to addressee, served on him. Now, in the
instant case, the complainant sent legal notice vide Ex.P3
to show that, he issued said notice soon after dishonour of
Cheque. Therefore, under Ex.P3, the complainant called
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upon the accused to pay amount due under the Cheque.
Contrary to this evidence, accused has not placed any
rebuttal evidence. Therefore, the complainant has
complied the legal requirements of Section 138 of N.I. Act
as to service of legal notice on the accused. Now the
burden shifts on the accused to disprove the case of the
complainant, but, the accused has not placed any material
to show that, notice was not issued to him.
16. As per the contention of accused, the Cheque
was not issued for legally enforceable debt. On the other
hand, according to complainant, Ex.P1-Cheque was issued
by accused towards discharge of legally enforceable debt
i.e,. for his family necessity. On the contrary, the accused
has not placed any contra evidence to disbelieve the case
of the complainant.
17. Whenever execution of negotiable instruments
is admitted, then, the Court may draw presumption under
Section 118 of the N.I. Act, which reads as under:
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"118 Presumptions as to negotiable
instruments. --Until the contrary is proved,
the following presumptions shall be made:--
(a) of consideration --that every negotiable
instrument was made or drawn for consideration,
and that every such instrument, when it has been
accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for
consideration;
(b) as to date --that every negotiable instrument
bearing a date was made or drawn on such date;
(c) as to time of acceptance --that every accepted
bill of exchange was accepted within a reasonable
time after its date and before its maturity;
(d) as to time of transfer --that every transfer of a
negotiable instrument was made before its
maturity;
(e) as to order of indorsements --that the
indorsements appearing upon a negotiable
instrument were made in the order in which they
appear thereon;
(f) as to stamps --that a lost promissory note, bill
of exchange or cheque was duly stamped;
(g) that holder is a holder in due course --that the
holder of a negotiable instrument is a holder in due
course:
Provided that, where the instrument has been
obtained from its lawful owner, or from any person
in lawful custody thereof, by means of an offence
or fraud, or has been obtained from the maker or
acceptor thereof by means of an offence or fraud,
or for unlawful consideration, the burden of
proving that the holder is a holder in due course
lies upon him."
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18. If Cheque was issued for security in relation to
other transactions, it shall be construed as the same was
issued towards legally enforceable debt or liability. There
is a presumption that a negotiable instruments is
supported by consideration, and Cheque was issued in
connection with discharge of liability.
19. In the instant case, the complainant has proved
that on the relevant date, he lent money to the accused
and in consideration thereof, accused issued Ex.P1 -
Cheque in favour of the complainant. Further, the accused
has not placed any material before the Court to prove
under what circumstances, he issued Cheque in favour of
the complainant.
20. The accused has clearly admitted his signature
on Ex.P1. When one person signs and delivers to another a
negotiable instrument, either wholly blank or nothing
written thereon, is an incomplete negotiable instruments,
he thereby gives prima facie authority to the holder
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thereof to make or complete, as the case may be, upon it
negotiable instrument, for any amount satisfied therein
and not exceeding the amount covered by the stamp, the
person so signing on the negotiable instruments shall not
be denied such instrument under Section 20 of the N.I.
Act, 1881. Therefore, the holder of Cheque by invoking
Section 20 of the N.I.Act, filled up the Cheque and
presents for encashment. Therefore, the Trial Court has
drawn presumption under Section 118 of the N.I. Act, so
as to consideration, as to date, as to time of acceptance,
as to time of transfer and as to order of endorsements, as
to stamps and that, holder is a holder in due course.
21. Thereby, the complainant has proved the
transaction and requirements under Section 138 of the
N.I. Act. Now, the burden lies on the accused to prove
non-existence of consideration which would lead the Court
to believe nonexistence of consideration either through
direct evidence or by raising a probable defence to show
that the existence of consideration was improbable,
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doubtful or illegal. But, the accused has not produced any
kind of evidence to show that existence of consideration
was improbable, doubtful or illegal. Therefore, the Trial
Court has rightly drawn presumption that the Cheque was
issued for legally enforceable debt, until contrary is
established.
22. In the instant case, the complainant filed a
private complaint under Section 200 of Cr.P.C., for the
offence punishable under Section 138 of the N.I. Act, and
he fulfilled the ingredients as required under Section 138
of N.I. Act.
23. Once issuance of Cheque is proved, the
presumption under Section 138 of N.I. Act would arise
with regard to consideration. But, the accused has not
discharged the burden casted on him. Whether the
accused has issued Cheque in favour of complainant, in
respect of other transactions or for repayment of loan or
as security or it was handed over to some financial
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institution, make no difference under Section 138 of N.I.
Act and the legal consequences were same without
distinction. Thus, the complainant proved the requirement
of Section 138 of N.I. Act.
24. Thus, the trial Court has rightly convicted the
petitioner. The First Appellate Court confirmed the
judgment of conviction and order of sentence passed by
trial Court. Hence, no interference is called for in this
matter and there is no merit in the petition.
Accordingly, the petition stands dismissed.
Sd/-
(VENKATESH NAIK T)
JUDGE
AM /CT-AN
