Karnataka High Court

Manoj Kumar Jain vs R Kiran Kumar on 26 November, 2025

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                             NC: 2025:KHC:49111
                                                        CRL.RP No. 1063 of 2018


                      HC-KAR




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 26TH DAY OF NOVEMBER, 2025

                                              BEFORE

                               THE HON'BLE MR. JUSTICE RAVI V HOSMANI

                         CRIMINAL REVISION PETITION NO. 1063 OF 2018

                      BETWEEN:

                      MANOJ KUMAR JAIN
                      S/O DARAMACHAND,
                      AGED ABOUT 29 YEARS,
                      MAHAVEER DIAMOND
                      AND JEWELLERS,
                      NO.12, ITI MAIN ROAD,
                      K K LAYOUT,
                      NAGARBHAVI 2ND STAGE,
                      BENGALURU - 560 072.

                      ALSO AT:
                      NO.4, 1ST FLOOR,
                      K K LAYOUT, 60 FEET ROAD,
                      PAPAREDDYPALYA,
Digitally signed by   BEHIND DEEP COMPLEX,
GEETHAKUMARI          SERVICE ROAD,
PARLATTAYA S          NAGARABHAVI,
Location: High        BENGALURU - 560 072.
Court of Karnataka
                                                                  ...PETITIONER

                      [BY SRI GOPAL SINGH, ADVOCATE]

                      AND:

                      R.KIRAN KUMAR
                      S/O LATE SRI RAJMAL JAIN,
                      AGED ABOUT 36 YEARS,
                      R/AT NO.28/25,
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                                           NC: 2025:KHC:49111
                                     CRL.RP No. 1063 of 2018


HC-KAR




K V LAYOUT,
SAPTHAGIRI RESIDENCY,
JAYANAGAR 4TH BLOCK,
BENGALURU - 560 011.
                                                  ...RESPONDENT

[BY SRI KUMARA K.G., ADVOCATE]

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

ORDER DATED 01.09.2018 IN CRL.A.NO.25/2017 ON THE FILE

OF LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,

BENGALURU AS PER ANNEX-A AND ALSO SET ASIDE THE

ORDER DATED 07.12.2016 IN C.C.NO.5539/2016 ON THE FILE

OF XXII ADDL.C.M.M., BENGALURU AS PER ANNEXURE-B AND

TO ACQUIT THE PETITIONER OF THE CHARGE U/S 138 OF N.I.

ACT.

THIS PETITION IS HAVING BEEN HEARD AND RESERVED

FOR ORDERS ON 04.11.2025, THIS DAY, THE COURT,

PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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CAV ORDER

Challenging judgment dated 01.09.2018 passed by LII

Addl. City Civil and Sessions Judge, Bangalore (CCH-53), in

Crl.A.no.25/2017 confirming judgment of conviction and order

of sentence dated 07.12.2016 passed by XXII Addl. Chief

Metropolitan Magistrate, Bangalore, in C.C.no.5539/2016, this

revision petition is filed.

2. Sri Gopal Singh, learned counsel for petitioner

submitted revision petition was by accused against concurrent

findings convicting him for offence punishable under Section

138 of Negotiable Instruments Act, 1881, ('NI Act', for short).

It was submitted, respondent (complainant) had filed a private

complaint under Section 200 of Code of Criminal Procedure,

1973, ('CrPC', for short) alleging that complainant was a

businessman and his friend Raju Pandit had introduced accused

doing jewelry business as 'Sri Mahaveer Jewellers', in June,

2015, who had sought financial assistance of Rs.20,00,000/-

from complainant, to develop his business. And on 24.06.2015,

complainant had lent Rs.18,00,000/- at time of entering into

agreement and Rs.2,00,000/- two days later. It was submitted,

accused had agreed to return it within three months and on

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demand, issued two cheques bearing nos.406304 and 406295

dated 10.10.2015 and dated 13.10.2015 respectively for

Rs.10,00,000/- each, drawn on Bank of India,

Basaveshwaranagar Branch, Bangalore, which when presented

for collection, returned with endorsements dated 12.11.2015

and 19.11.2015 as "funds insufficient" and demand notice

dated 10.12.2015 was got issued by complainant, returned on

11.12.2015 with postal shara "door locked and not claimed",

which substantiated commission of offence punishable under

Section 138 of NI Act.

3. On appearance and accused seeking trial,

complainant examined himself as PW.1 and got marked

Exhibits P1 to P10. On appraisal of incriminating material,

which were denied, statement of accused under Section 313 of

CrPC was recorded. Thereafter, accused examined himself as

DW.1 and got marked Exhibits D1 and D2.

4. On consideration, trial Court held accused guilty of

offence punishable under Section 138 of NI Act and sentenced

him to pay fine of Rs.5,000/- and compensation of

Rs.5,00,000/- to complainant and in default, accused to

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undergo simple imprisonment for one year. Aggrieved accused

filed Crl.A.no.25/2017, which, however due to non-re-

appreciation of material on record was dismissed, leading to

this revision petition.

5. It was submitted, accused denied Ex.P10 - hand

loan agreement in total. In absence of any of witnesses

identifying signature of accused on it, reliance on same to

convict accused by trial Court was not justified. It was

submitted, accused had borrowed Rs.18,00,000/- from

complainant, who was a money lender in year 2014 agreeing to

repay same by October, 2015. At that time, complainant was

aware that one Anand Gowda owed sum of Rs.15,00,000/- to

accused. Using his clout with police, Anand Gowda was brought

to police station and collected three cheques for Rs.5,00,000/-

each from him and acknowledged recovery of Rs.15,00,000/-.

But, later he approached accused claiming that said Anand

Gowda had refused to make payment and forcibly took away

900 gms. of Gold and 09 Kgs. of Silver from shop of accused by

threatening him. It was submitted, value of gold/silver taken

away was more than Rs.22,80,000/-. PW.1-complainant

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admitted that he was facing charges of dacoity etc. on

complaint given by accused and obtained bail. Thereafter,

complainant approached accused to withdraw said complaint.

In order to mount pressure, he had misused two cheques

obtained by him earlier. It was submitted, as per complainant's

version, accused had given Exs.P1 and P2 towards repayment,

but during cross-examination, he admitted that if accused

repays amount, he would return remaining three cheques,

which would probablize accused's defence that five cheques

were obtained during year 2014 and not issued in year 2015 for

repayment of loan as mentioned in Ex.P10-agreement. Apart

from above, there is contradiction in deposition of PW.1 about

filling up of cheque. Above facts would establish that cheques

were not issued towards legally enforceable debt as contended

by complainant. Consequently, conviction of accused would not

be justified and called for interference.

6. On other hand, Sri Kumara KG, learned counsel for

complainant opposed petition. It was submitted, both Courts

had concurrently convicted accused for offence punishable

under Section 138 of NI Act, by arriving at well reasoned

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findings by referring to material on record, leaving no scope for

interference in revision petition.

7. Heard learned counsel, perused impugned

judgments and record.

8. This revision petition is by accused against

concurrent judgments convicting accused for offence

punishable under Section 138 of NI Act, on ground that findings

of both Courts suffering from perversity.

9. One of main grounds of challenge is denial of

relationship of creditor and debtor and existence of legally

enforceable debt. As noted above, complainant seeks to

substantiate legally enforceable debt is by asserting that at

time of lending Rs.20,00,000/-, complainant and accused had

executed Ex.P10 - agreement and later issued Exs.P1 and 2 -

cheques for Rs.10,00,000/- each towards repayment.

10. As noted above, complainant stated that accused

borrowed Rs.20,00,000/- as hand loan for improvement of

business, agreeing to repay within three months and execution

of Ex.P.10 - agreement. He also claims that on demand for

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repayment, accused had executed Exs.P1 and P2 - cheques,

which when presented had returned dishonored.

11. On other hand, accused contended that in year

2014, he had borrowed loan from complainant, who was a

money lender and by October 2015, balance remaining was

only Rs.5,00,000/-. He further stated, at time of lending of loan

complainant had taken five signed blank cheques and misused

two of them for present case. Accused totally denied

complainant's version of loan and execution of Ex.P.10 -

agreement.

12. Complainant examined himself as PW.1 and got

marked two cheques as Exs.P1 and 2 as well as Ex.P.10 -

agreement. He also identified his signature and that of accused

on Ex.P.10 as Ex.P10 (a) to (f). Bare comparison of admitted

signatures of accused on Exs.P.1 and P2 - cheques with his

alleged signature on Ex.P.10 exercising power under Section 73

of Evidence Act, would reveal remarkable difference. Signature

on Ex.P.10 not only contains distinct style of writing of name,

but also distinct mark, whereas, Exs.P.1 and P2 merely bear

distinct style of writing of name, without distinct mark. Apart

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from above, there is indeed, an admission elicited that on

repayment of due amount, complainant would return other

three cheques.

13. For these material inconsistencies, there is no

explanation forthcoming from complainant. Further, it is elicited

in cross-examination of PW.1 that accused had requested

complainant to recover Rs.15,00,000/-, which were due to

accused from one Anand Gowda. There is also inconsistency

about handwriting on cheques. In addition to above, it is seen

that accused had filed complaint against complainant and

others for offence of dacoity on 21.10.2015, around same time

as issuance of cheque, their presentation and dishonor. These

factors would probabilise defence set-up by accused.

14. Hon'ble Supreme Court in case of Rajesh Jain v.

Ajay Singh, reported in (2023) 10 SCC 148, held:

"44. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit- evidence, the burden shifts to the complainant and the presumption "disappears" and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of

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fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa v. Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 :

(2019) 2 SCC (Cri) 571 : AIR 2019 SC 1983] ; see also, Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184 : AIR 2010 SC 1898]"

15. Even this Court in Crl.A.no.2784/2012 (Santosh

s/o Nagesh Nayak v. Haribhai Lalji Patel disposed of on

11.11.2020) also held once statutory presumption under

Sections 118 and 139 of NI Act are upset, burden would be on

complainant to establish commission of offence by accused.

16. In instant case, there is failure on part of

complainant to examine any of witnesses to Ex.P10. Apart from

same, as noted above, there are glaring inconsistencies without

explanation amounting to material omissions.

17. While passing impugned judgment, trial Court relied

on contents of Ex.P10 - hand loan agreement. It also referred

to admission by accused about borrowing Rs.18,00,000/- from