Karnataka High Court

Sri. Prashanth vs Sri. Nagesh on 19 March, 2025

                                         -1-
                                                      NC: 2025:KHC:11523
                                                  CRL.RP No. 445 of 2018




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 19TH DAY OF MARCH, 2025

                                      BEFORE
                         THE HON'BLE MS JUSTICE J.M.KHAZI
                  CRIMINAL REVISION PETITION NO. 445 OF 2018
                             (397(Cr.PC) / 438(BNSS))
               BETWEEN:

                  SRI. PRASHANTH
                  S/O. FRANCIS,
                  AGED ABOUT 46 YEARS,
                  POLICE CONSTABLE, DARAPC NO.205,
                  R/AT HOUSE NO. 115,
                  POLICE QUARTERS, HOSLINE ROAD,
                  HASSAN-573 201.
                                                           ...PETITIONER
               (BY SRI. SURESH.D.DESHPANDE, ADVOCATE)

               AND:

                  SRI. NAGESH
Digitally
signed by         S/O PUTTSWAMIGOWDA,
REKHA R           AGED ABOUT 36 YEARS,
Location:         R/AT DASARAKOPPALU,
High Court
of Karnataka      JANATA MANE COLONY,
                  KASABA HOBLI, HASSAN-573 201.
                                                          ...RESPONDENT
               (BY SMT.K.M.ARCHANA, AMICUS CURIAE)

                    THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
               ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
               IMPUGNED ORDER OF CONVICTION DATED 23.06.2016,
               PASSED BY THE LEARNED II ADDITIONAL CIVIL JUDGE AND
               JMFC, HASSAN IN C.C.NO.2725/2014 (OLD NO.475/2008) AND
               ALSO THE JUDGMENT DATED 08.02.2018 PASSED BY THE 5TH
                                -2-
                                             NC: 2025:KHC:11523
                                         CRL.RP No. 445 of 2018




ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN IN
CRL.APPEAL NO.142/2016 AND ETC.,

    THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM:     HON'BLE MS JUSTICE J.M.KHAZI


                         ORAL ORDER

This petition filed under Section 397(1)and 401(1) of

the Code of Criminal Procedure is by the accused

challenging the judgment and order of conviction passed

by the trial Court for the offence punishable under Section

138 of N I Act, which came to be confirmed by the

Sessions Court by dismissing the appeal filed by him.

2. For the sake of convenience, parties are

referred to by their ranks before the trial Court.

3. Complainant filed a complaint under Section

138 of N.I Act, contending that he and accused are

friends. For his necessity, accused borrowed a sum of

Rs.60,000/- from complainant on 10.04.2005 and issued

cheque dated 06.06.2005 with a direction to get the

NC: 2025:KHC:11523

amount from his account. Accordingly, he presented the

cheque on 06.06.2005 for encashment through his

account. However, it came to be dishonoured for want of

sufficient funds. Complainant got issued legal notice dated

21.06.2005. Though duly served, the accused has neither

sent reply nor complied with the same and hence the

complaint.

4. Accused appeared through counsel and

contested the case by pleading not guilty.

5. In order to prove the allegations against

accused, the complainant has examined himself as PW-1

and got marked Ex.P1 to 5.

6. During his statement under Section 313 Cr.P.C,

the accused has denied the incriminating evidence led by

the complainant.

NC: 2025:KHC:11523

7. Accused has also given evidence as DW-1. No

documents are marked on his behalf.

8. The trial Court convicted the accused and

sentenced him to pay fine of Rs.80,200/- with default

sentence.

9. Accused challenged his conviction and sentence

before the Sessions Court, which came to be dismissed.

10. Challenging the concurrent findings of the trial

Court as well as the Sessions Court, accused has filed this

petition contending that they are illegal, improper and

opposed to the facts and circumstances of the case. Both

Courts have failed to appreciate the evidence in proper

perspective. They have failed to appreciate the fact that

complainant has not proved his financial capacity and that

the alleged loan is legally enforceable debt. The findings of

the trial Court and Sessions Court are not supported by

valid reasons.

NC: 2025:KHC:11523

11. On the other hand, learned Amicus Curiae

representing the complainant supported the impugned

judgment and order of the trial Court as well as the

Session Court and submitted that in the light of the fact

that the cheque in question is drawn on the account of the

accused and it bears his signature, presumption under

Section 139 of the N.I Act comes into play placing the

initial burden on the accused to rebut the same. In the

present case, the accused has not only failed to rebut the

presumption, but also taken inconsistence defence which

he has failed to prove. Considering the oral and

documentary evidence on record, both courts have come

to a correct conclusion. There is no perversity calling for

interference by this Court, in exercise of its revisionary

jurisdiction and sought for dismissal of the petition.

12. In support of her arguments, she has relied

upon the following decisions:

NC: 2025:KHC:11523

(i) Bir Singh Vs. Mukesh Kumar (Bir Singh)1

(ii) Rajesh Jain Vs. Ajay Singh (Rajesh Jain)2

(iii) Tedhi Singh Vs. Narayan Dass Mahant (Tedhi Singh)3

(iv) Rangappa Vs. Mohan (Rangappa)4

13. Heard arguments of both sides and perused the

record.

14. It is not in dispute that the cheque in question

is drawn on the account of accused and it bears his

signature and when presented for realisation, it is

dishonoured for want of sufficient funds. After issuing legal

notice, complaint is filed. Therefore, presumption under

Section 118 and 139 of the N.I Act comes into picture to

the effect that the cheque was issued towards repayment

of any legally recoverable debt or liability, placing the

initial burden on the accused to rebut the same.

(2019) 4 SCC 197

(2023) 10 SCC 148

(2022) 6 SCC 735

(2010) 11 SCC 441

NC: 2025:KHC:11523

15. Having failed to send reply to the legal notice,

the accused has lost opportunity to come up with the

specific defence at the earliest available opportunity.

However, at the trial, he has taken multiple defences

which are mutually contradictory to each other. It is

relevant to note that accused was working as a Police

constable when the complaint was filed. His defence is

required to be appreciated in the light of the fact that he is

a Government employee and not an illiterate.

16. Accused admit the fact that he and complainant

are known to each other. The first and foremost defence

taken by the accused is that since his job require constant

movement, he used to keep signed cheques in his house

and while visiting his house, complainant has taken one

such cheque and misused it. Of course, complainant has

denied the said suggestion. If at all the complainant has

committed theft of cheque belonging to the accused and

misused the same and accused was not aware of it till he

received the notice, at least on receipt of legal notice he

NC: 2025:KHC:11523

could have sent reply to the complainant to that effect and

also filed complaint against him.

17. The other defence taken by the accused is that

he had borrowed a sum of Rs.5,000/- from the

complainant and issued the cheque in question by way of

security and even though he has repaid the said sum,

accused did not return the cheque and misused it. If this is

the case, then immediately after repaying the said loan

and on the failure of the complainant to return the cheque,

the least accused could have done was to instruct the

Bank, not to honour the cheque and also send reply as

soon as he received the legal notice. During his cross-

examination, accused has admitted that in all 7-8 cheque

bounce cases are pending against him. Suggestions are

made to the complainant that as soon as accused received

the legal notice, he contacted the complainant and

questioned him about the same. When the proper course

available to the accused was to send reply to the legal

notice, it cannot be accepted that accused met the

NC: 2025:KHC:11523

complainant and questioned him about the legal notice,

especially when accused having experienced several

cheque bounce cases pending against him.

18. The accused has cross-examined the

complainant at length regarding his financial capacity. Of

course, the evidence led by the complainant prove that he

is running a Khova factory since many years and having

decent income, which fact is not disputed by the accused.

Having regard to the fact that accused has failed to rebut

the presumption, as held in Basalingappa Vs Mudibasappa

(Basalingappa)5, the burden to prove his financial

capacity would shift on the complainant only after the

accused rebut the presumption. The fact that several

cheque bounce cases are pending against him indicate

that accused is in the habit of borrowing money by issuing

cheques and when dishonoured taking false defence.

19. During the course of the argument, learned

counsel representing the accused submitted that the trial

Court is not having power to impose interest. Of course in

(2019) 5 SCC 418

- 10 -

NC: 2025:KHC:11523

the present case, the trial Court has not imposed any

interest. While deciding the punishment, it has discussed

that if the complainant had kept Rs.60,000/- in

Nationalised Bank, it would have doubled. However,

though for the offence punishable under Section 138 of

the N.I Act fine may be imposed double the cheque, it has

sentenced the accused to pay fine of Rs.80,200/- which is

quite reasonable and appropriate.

20. Taking into consideration the oral and

documentary evidence placed on record, both trial Court

as well as the Sessions Court have rightly held that the

allegations against accused are proved beyond reasonable

doubt and convicted him. This Court finds no perversity in

the findings and conclusions arrived at by them, calling for

interference by this Court. In the result, the petition fails

and accordingly, the following:

ORDER

1. Petition filed by the accused under Section 397(1) and 404(1) of Cr.P.C. is dismissed.

- 11 -

NC: 2025:KHC:11523

2. The impugned judgment and order dated 23.06.2016 in CC.No.2725/2014 (Old No.475/2008) on the file of II Addl.Civil Judge and JMFC, Hassan, and judgment and order dated 08.02.2018 in Crl.A.No.142/2016 on the file of V Addl. District and Sessions Judge, Hassan are hereby confirmed.

3. The Registry is directed to send back the trial Court records as well as Sessions Court records along with copy of this order forthwith.

Appreciating the able assistance rendered by the learned Amicus Curiae, her remuneration is fixed at Rs.5,000/-. The High Court legal services committee is directed to pay the same.

Sd/-

(J.M.KHAZI) JUDGE