Karnataka High Court
Sri. Manjunath vs Sri. Zubair on 27 June, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.RP No. 164 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL REVISION PETITION No. 164 OF 2023
(397(Cr.PC) / 438(BNSS))
BETWEEN:
SRI. MANJUNATH
S/O H C PUTTASWAMY
AGED ABOUT 39 YEARS
BUSINESSMAN AND AGRICULTURIST
R/O HIREMAGALURU
JYOTHINAGARA POST
CHIKKAMAGALURU - 577 102.
...PETITIONER
(BY SRI H R SANTHOSH, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA AND:
MURTHY RAJASHRI
Location: HIGH
COURT OF SRI. ZUBAIR
KARNATAKA S/O IBRAHIM
AGED ABOUT 28 YEARS
PROPRIETOR
R/AT BHARATH CEREMAICS
SIDDE GOWDA BUILDING
NEAR BULLET SHOWROOM
BYPASS ROAD
CHIKKAMAGALURU - 577 101.
...RESPONDENT
(BY SRI RAVIKUMAR N R, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 OF Cr.P.C PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT AND SENTENCE DATED 20.01.2022 BY
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CRL.RP No. 164 of 2023
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THE PRL.SENIOR CIVIL JUDGE AND C.J.M CHIKKAMAGALURU
IN C.C.No.1068/2020 CONVICTING THE PETITIONER AND THE
SAME HAS BEEN CONFIRMED BY THE II ADDL.DISTRICT AND
SESSIONS JUDGE AT CHIKKAMAGALURU IN CRL.A.No.43/2022
ON 25.10.2022 AND ALLOW THE APPEAL AND ACQUIT THE
PETITIONER.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
This revision petition is directed against the
judgment dated 25.10.2022 passed in Crl.A.No.43/2022
by the II Additional District and Sessions Judge at
Chikkamagaluru where under the judgment of conviction
of the petitioner dated 20.01.2022 by the Prl.Senior Civil
Judge and CJM, Chikkamagaluru convicting the petitioner
for the offence under Section 138 of the N.I.Act has been
affirmed.
2. Heard learned counsel for the petitioner and
learned counsel for the respondent.
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3. The case of the complainant was that he has
supplied materials to the petitioner-accused worth
Rs.2,35,044/- under bill No.053 dated 30.09.2018 and
accused has issued two cheques of Rs.85,000/- each dated
30.08.2018 bearing Nos.768736 and 768737 drawn on
Kaveri Grameena Bank, Chikkamagaluru. The complainant
presented the said cheques for encashment and the said
cheques came to be dishonoured under bank memo dated
22.11.2018 with reason "funds insufficient". The
complainant got issued legal notice on 28.11.2018 and it
has been served on the accused on 04.12.2018. Inspite
of the said notice the petitioner - accused has not paid the
amount of cheques within 15 days and therefore, the
complainant has initiated proceedings against the
petitioner-accused for the offence under Section 138 of
the N.I.Act.
4. The complainant has examined himself as PW.1
and got marked Exs.P1 to P8. The statement of the
accused has been recorded under Section 313 of Cr.P.C.
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The petitioner has not led any defence evidence. Learned
Magistrate after hearing the arguments on both the sides
has convicted the petitioner for the offence punishable
under Section 138 of the N.I.Act and sentenced to pay fine
of Rs.2,20,000/- and in default to undergo simple
imprisonment for six months. The said judgment of
conviction has been challenged before the Sessions Court
in Crl.A.No.43/2022 and the same came to be dismissed
on merits affirming the judgment of conviction passed by
the trial Court.
5. Learned counsel for the petitioner would contend
that the petitioner - accused has taken the defence that
he had given blank signed cheques to one Praveen and he
has misused the same through this complainant and he
had no transaction with the complainant. He submits that
the complainant has not produced any document to show
the transaction. Without considering these aspects, the
trial Court has convicted the petitioner-accused and
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appellate Court has dismissed the appeal filed by the
petitioner-accused.
6. Having heard learned counsel, the Court has
perused the impugned judgments and trial Court records.
7. It is the specific case of the complainant that in
order to pay the amount for materials supplied the
petitioner-accused has issued two cheques for Rs.85,000/-
each. The accused has admitted his signature on the
cheques and therefore, presumption has to be drawn
under Section 139 of the N.I.Act that the cheques are
issued for discharge of liability. The said presumption is a
rebuttable presumption. The standard of proof for
rebutting the said presumption is preponderance of
probability.
8. The petitioner-accused has not got issued any
reply to the legal notice putting forth his defence. In the
cross-examination of PW.1, the petitioner-accused has
taken up the defence that his signed cheques given to
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Praveen have been misused through this complainant.
The said suggestion put to PW.1 in his cross-examination
has been denied. What is admitted by PW.1 is that this
petitioner-accused has been introduced by the said
Praveen who is a police official. There is no any
suggestion for what transaction the petitioner - accused
has given the said cheques to the said Praveen. The said
defence has not been established by petitioner-accused.
The petitioner-accused has not entered the witness box
and he has not summoned the said Praveen as a witness
to examine him. The petitioner - accused failed to rebut
the presumption drawn under Section 139 of the N.I.Act
that the cheques are issued for discharge of debt or
liability. As the presumption is not rebutted, it is not
necessary for the complainant to establish the liability of
the petitioner-accused. The Hon'ble Apex Court in the case
of Rajesh Jain Vs. Ajay Singh reported in AIR Online
2023 SC 807 has observed thus:
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"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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9. The Hon'ble Apex Court in another decision 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, 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
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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."
10. Considering the said aspect that the petitioner
has failed to rebut the presumption, the trial Court has
rightly convicted the petitioner for the offence punishable
under Section 138 of N.I.Act. The appellate Court re-
appreciated the evidence on record and has rightly
confirmed the judgment of conviction passed by the trial
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Court. There are no grounds to entertain this revision
petition. Hence, the revision petition is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DKB
