Karnataka High Court

Sri. Dhanashekara vs Sri. B. L. Shivalinge Gowda on 30 June, 2025

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                        CRL.RP No. 1017 of 2017


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                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                DATED THIS THE 30TH DAY OF JUNE, 2025

                                              BEFORE
                       THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                             CRIMINAL REVISION PETITION NO.1017 OF 2017
                      BETWEEN:

                      SRI. DHANASHEKARA
                      S/O T.K.MUTHU,
                      AGED ABOUT 53 YEARS
                      R/AT NO.8, 1ST MAIN,
                      7TH CROSS, PADUVARAHALLI,
                      MYSORE-570012.
                                                                  ...PETITIONER
                      (BY SRI MANJANNA M S, ADVOCATE)
                      AND:

                      SRI. B. L. SHIVALINGE GOWDA
                      S/O LATE BEVOORI LINGEGOWDA,
                      AGED ABOUT 58 YEA7RS
                      R/AT K.GOWDAGERE VILLAGE,
                      KEROGODU HOBLI, MANDYA TALUK,
                      MANDYA-571 446
Digitally signed by
                                                                 ...RESPONDENT
LAKSHMINARAYANA       (BY SRI AJAY S, ADVOCATE)
MURTHY RAJASHRI
Location: HIGH              THIS CRL.RP IS FILED UNDER SECTION 397 AND 401
COURT OF              CR.P.C PRAYING TO SET ASIDE THE JUDGMENT PASSED BY
KARNATAKA
                      THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
                      MANDYA IN CRL.A.NO.17/2017 ON 09.08.2017 AND JUDGMENT
                      AND CONVICTION ORDER PASSED IN C.C.NO.178/2013 ON
                      07.02.2017 BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND
                      C.J.M., MANDYA.

                           THIS PETITION, COMING ON FOR FINAL HEARING, THIS
                      DAY, ORDER WAS MADE THEREIN AS UNDER:
                      CORAM:    HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
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                                                NC: 2025:KHC:22962
                                         CRL.RP No. 1017 of 2017


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                        ORAL ORDER

This revision petition is directed against the

judgment dated 09.08.2017 passed in Crl.A.No.17/2017

by the IV Addl.District and Sessions Judge, Mandya where

under the judgment of conviction of the petitioner dated

07.02.2017 passed in C.C.No.178/2013 by the I Additional

Civil Judge and CJM, Mandya convicting the petitioner for

the offence under Section 138 of the N.I.Act and

sentencing him to undergo simple imprisonment for six

months and to pay fine of Rs.7,20,000/- has been

affirmed.

2. Heard learned counsel for the petitioner and

learned counsel for the respondent.

3. The case of respondent/complainant before the

trial Court was that he and petitioner/accused were known

to each other and petitioner/accused who was in need of

money for his business borrowed Rs.3,60,000/- from

respondent/complainant on 17.01.2013 agreeing to repay

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the same within two months. The petitioner/accused

issued post dated cheque bearing No.702448 dated

22.03.2013 draw on HDFC Bank, Saraswathipuram

Branch, Mysuru. The complainant presented the said

cheque for encashment. The said cheque came to be

dishonoured for the reason "account closed". The

complainant got issued legal notice by RPAD. The said

legal notice has been returned as "not claimed." As the

cheque amount was not paid, respondent/complainant

initiated proceedings against petitioner/accused for the

offence punishable under Section 138 of the N.I.Act.

4. The complainant in order to prove his case

examined himself as PW.1 and got marked Exs.P1 to P5.

The statement of the accused has been recorded under

Section 313 of Cr.P.C. The accused examined himself as

DW.1 and got marked Exs.D1 to D3. After hearing

arguments, the learned Magistrate convicted

petitioner/accused for the offence under Section 138 of

the N.I.Act. The said judgment of conviction has been

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challenged by the accused before the Sessions Judge in

Crl.A.No.17/2017. The said appeal came to be dismissed

on merits affirming the judgment of conviction and order

of sentence passed by the trial Court.

5. Learned counsel for the petitioner would contend

that the cheque given to one Mahadevamma has been

misused by her through this complainant. PW.1 has

admitted the suggestion that he is acquainted with the

said Mahadevamma. There is a suggestion to DW.1 that

accused is in the habit of cheating Mahadevamma and

others by borrowing and issuing cheques. He further

submits that account has been closed long back and the

same has not been considered by the trial Court and the

Appellate Court. The petitioner/accused had no

opportunity of giving reply to the legal notice as the said

notice sent by RPAD was returned as "not claimed."

Without considering all these aspects, the trial Court

convicted the petitioner for the offence under Section 138

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of the N.I.Act and the appellate Court has affirmed the

conviction passed by the trial Court.

6. Learned counsel for the respondent would contend

that the signature on the cheque - Ex.P1 has been

admitted by petitioner/accused. As the signature is

admitted, presumption has to be drawn under Section 139

of the N.I.Act. The presumption has not been rebutted.

The defence that the cheque is given to one

Mahadevamma and she has misused the said cheque

through this complainant has not been established.

Considering the said aspect, learned Magistrate has rightly

convicted the petitioner for the offence under Section 138

of the N.I.Act. The appellate Court re-appreciating the

evidence on record has rightly affirmed the said judgment

of conviction passed by the trial Court.

7. Having heard the learned counsels, this Court has

perused the impugned judgments and trial Court records.

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8. It is the specific case of respondent/complainant

that petitioner/accused has borrowed Rs.3,60,000/- on

17.01.2013 and agreed to repay the same within two

months. It is the further case of the complainant that

Ex.P1-cheque has been issued for making repayment of

the amount borrowed. The signature on the cheque has

been admitted by the petitioner/accused. As the signature

is admitted, the 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 is rebuttable

presumption. The standard of proof for rebutting the said

presumption is that of preponderance of probability.

9. The petitioner/accused has taken up the defence

that he had borrowed money from one Mahadevamma and

he has issued blank signed cheque to her and she has

misused the same through this complainant. The said

suggestion put to PW.1 has been denied by him except the

fact that the said Mahadevamma is his relative.

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10. DW.1 in his chief-examination itself has stated that

he has borrowed money from Mahadevamma, Dakshayini

and Ramakrishna and issued signed cheque of HDFC Bank

to them and the said borrowing is in the year 2011. The

said fact itself indicates that even though the bank account

is closed in the year 2007 as per Ex.D3, the cheques are

issued to the said Mahadevamma and others are of HDFC

Bank in the year 2011. The suggestion put to DW.1 is

that petitioner/accused is in the habit of borrowing money

for his petrol bank business and he is cheating people by

giving cheques. The said suggestion itself does not prove

the defence of the petitioner/accused that the cheque

given to Mahadevamma has been misused by her through

this complainant. Merely because there are entries of

payment to Ramakrishna contained in Ex.D1 - bank

statement account itself does not establish the defence of

the petitioner/accused. Considering all these aspects

petitioner/accused has failed to establish his defence and

failed to rebut the presumption drawn under Section 139

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of the N.I.Act. As the presumption is not rebutted, it is

not required for respondent/complainant to establish the

transaction between him and the 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:

"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

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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."

11. 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

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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."

12. Considering the above aspect, the conviction of

the petitioner for the offence under Section 138 of the

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N.I.Act as rendered by the trial Court and affirmed by the

appellate Court requires to be affirmed.

13. Learned counsel for the petitioner submits that

the sentence passed by the trial Court is on higher side as

the fine is imposed double the amount of cheque apart

from simple imprisonment for six months. The sentence

imposed by the trial Court reads as under:

"The accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act.

           The    accused         shall    undergo    a    simple
     imprisonment      for    6     months     and   a    fine    of
     Rs.7,20,000/- IDSI for 1 month.