[Cites 4, Cited by 0]
Karnataka High Court
Smt Nandini S R S vs G Venkatramana on 31 January, 2026
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.RP No. 476 of 2015
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 476 OF 2015
BETWEEN:
SMT. NANDINI S.R.S
W/O M.B. PRASAD
AGED ABOUT 39 YEARS
R/AT NO.16/73, 59TH CROSS
4TH BLOCK, RAJAI NAGAR
BAGALORE - 560 010.
...PETITIONER
(BY SRI JAGADISH J.R, ADV.)
AND:
G. VENKATRAMANA
S/O SATYANARAYA GUPTA
AGED ABOUT 52 YEARS
R/AT NO. U 38, GROUND FLOOR
GANESH BLOCK, 1ST CROSS
SHESHADRIPURAM, 1ST MAIN
Digitally BANGALORE - 560 020.
signed by ...RESPONDENT
NANDINI M S
Location: (BY SRI SANJAY YADAV B, ADV., FOR
HIGH COURT SRI S. MAHESH, ADV.)
OF
KARNATAKA THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 4.3.2015 PASSED BY
THE P.O., F.T.C.-8, BANGALORE IN CRL.A.NO.564/2014 PRODUCED
AS ANNEXURE-A AND CONSEQUENTLY SETTING ASIDE THE
JUDGMENT AND ORDER DATED 24.4.2014 PASSED BY THE XVI
A.C.M.M., BENGALURU CITY IN C.C.NO.51354/2010 PRODUCED AS
ANNEXURE-B AND DISMISS THE COMPLAINANT FILED BY THE
RESPONDENT ACQUITTING THE PETR.
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 476 of 2015
HC-KAR
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. The accused is before this Court in this petition filed
under Section 397 R/w 401 of Cr.P.C, with a prayer to set
aside the judgment and order of conviction and sentence
passed in C.C.No.51354 of 2010 by the Court of XVI Addl. Chief
Metropolitan Magistrate, Bengaluru, dated 24.04.2014 and the
judgment and order passed in Criminal Appeal No.564 of 2014
dated 04.03.2015 by the Court of Addl. Sessions Judge, FTC-
VIII at Bengaluru.
2. Heard the learned counsel appearing for the parties.
3. Respondent herein had initiated proceedings against
the petitioner for offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 in C.C.No.51354 of 2010
before the jurisdiction of Court of Magistrate at Bangalore. It is
the specific case of the respondent that petitioner had
borrowed a hand loan of ₹.15,00,000/- in cash from him and
towards repayment of the said amount, the cheque in question
dated 31.12.2019 for a sum of ₹.15,00,000/- was issued in his
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favour. The said cheque on presentation for realisation was
dishonoured on 09.06.2010 with a shara "funds insufficient". It
is under these circumstances, a legal notice was issued to the
petitioner on behalf of the respondent and since the petitioner
had failed to repay the amount covered under the cheque in
question in spite of service of notice, the respondent had
initiated proceedings against the petitioner before Court in
C.C.No.51354 of 2010 for offence punishable under Section 138
of the Negotiable Instruments Act.
4. The petitioner had appeared before the Trial Court
in response to summons received in said proceedings and had
claimed to be tried. To substantiate his case, complainant had
examined himself as PW1 and had got marked 8 documents as
Ex.P1 to Ex.P8. On behalf of the defence, petitioner had
examined herself as DW1 and got marked 7 documents as
Ex.D1 to Ex.D7. The Trial Court, vide the impugned judgment
and order dated 24.04.2014, has convicted the petitioner for
offence punishable under Section 138 of the N.I. Act in
C.C.No.51354 of 2000 and sentenced her to Pay fine of
₹.15,10,000/- and in default to undergo simple imprisonment
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for a period of two years. The said judgment and order of
conviction and sentence passed in C.C.No.51354 of 2010 was
confirmed in Criminal Appeal No. 564 of 2014 by the Court of
Addl. Sessions Judge, FTC-VIII at Bengaluru by judgment and
order dated 04.03.2015. It is under these circumstances,
petitioner is before this Court.
5. Learned counsel for the petitioner having reiterated
the grounds urged in the petition submits that the cheque in
question bearing No.610393 and another cheque bearing
No.610394 were forcibly taken from the office of the petitioner
by one Rishi Reeva and his friend Somashekar. The said
cheques were subsequently presented for realisation through
the respondent herein and based on the said cheques, two
separate proceedings for the offence punishable under Section
138 of the N.I. Act were initiated against the petitioner in
C.C.No.51354 of 2010 and in C.C.No.8339 of 2011. He submits
that appreciating the defence of the petitioner she has been
acquitted in C.C.No.8339 of 2011 which related to the other
cheque bearing No.61034 and the judgment and order of
acquittal passed in the said case has attained finality. Under
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the circumstances, the impugned judgment and order of
conviction and sentence cannot be sustained. Accordingly, he
prays to allow the petition.
6. Per contra, learned counsel for the respondent has
argued in support of impugned judgment and order and
submits that transaction in the two cases are totally different
and the cheques were issued by the petitioner on different
dates. Therefore, the judgment and order of acquittal passed in
C.C.No.8339 of 2011 cannot be considered as a basis to set
aside the concurrent findings of conviction passed against the
petitioner in the present case. He submits that in the present
case to prove the transaction the respondent has produced the
on demand promissory note executed by the petitioner. He
accordingly, prays to dismiss the petition.
7. It is the case of the respondent / complainant that
petitioner had borrowed a sum of ₹.15,00,000/- from him in
cash on 04.12.2009 and towards repayment of the said amount
she had issued the cheque bearing No.610393 dated
31.12.2009 for a sum of ₹.15,00,000/-. The said cheque on
presentation for realisation was dishonoured by the drawee
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bank with shara "Funds insufficient". Since the petitioner had
not repaid the amount covered under the cheque in question, in
spite of service of statutory notice, the respondent had initiated
proceedings against her for offence punishable under Section
138 of N.I. Act.
8. It is the specific defence of the petitioner before the
Trial Court that the cheque in question and the other cheque
bearing No.610394 were forcibly taken from her office by one
Rishi Reeva and his friend Somashankar and in this regard she
had submitted a complaint to the Commissioner of Police, which
is produced and marked as ExD1. Similar defence was taken by
her even in C.C.No.8339 of 2011 which was initiated by the
respondent herein against her after the cheque bearing
No.610394 was dishonoured which was also drawn in favour of
the respondent herein for a sum of ₹.15,00,000/-.
9. The respondent / complainant in both the cases has
contended that money was borrowed by him from one Sri Ajay
Gupta and Sreenivas and thereafter paid to the petitioner
herein. Such a contention by the respondent has been
disbelieved, as he had not examined the aforesaid Ajay Gupta
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or Sreenivas, nor had he produced any other material to show
that he had borrowed money from Ajay Gupta and Sreenivas
and paid the same to the petitioner. The defence set up by the
petitioner in C.C.No.8339 of 2011, which is similar to the
defence set up in the present case, has been accepted and the
Trial Court in C.C.No.8339 of 2011 has recorded that the
presumption that stood against her has been successfully
rebutted. The petitioner, in addition to producing her complaint
given to the Commissioner of Police as Ex.D1, had also
produced other documents including the statement of Rishi
Reeva as Ex.D9 in C.C.No.8339 of 2011.
10. In Ex.D1 there is a specific mention that the cheque
in question bearing No.610393 and also the cheque bearing
No.610394 which was subject matter of C.C.No.8339 of 2011
were forcibly taken by Rishi Reeva and his accomplices on
04.12.2019 and such a defence raised by the petitioner has
been accepted by the learned Magistrate in C.C.No.8339 of
2011 and the petitioner has been acquitted in the said case in
which the respondent herein is the complainant. Undisputedly
the judgment and order of acquittal passed in C.C.No.8339 of
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2011 has attained finality. Therefore, in my considered opinion,
the Courts below have failed to properly appreciate the defence
set up by the petitioner in the present case, more so, in view of
the order of acquittal passed in C.C.No.8339 of 2011, wherein
similar defence was set up by the petitioner. If the defence
taken by the petitioner is accepted in C.C.No.8339 of 2011 as a
probable defence, I do not find any good reason as to why the
said defence also cannot be considered and accepted in the
present proceedings as a probable defence.
11. It is trite that in the event the accused put's
forward a probable defence, then the presumption that arises
against the accused under Section 139 R/w Section 118 of
Negotiable Instruments Act stands rebutted and the burden of
proving the transaction automatically shifts on the petitioner.
As stated earlier, it is the specific case of the complainant in
both the cases that he had borrowed money from Ajay Gupta
and Sreenivas and had paid the said amount to the petitioner.
The said contention of the petitioner has been disbelieved by
the Trial Court in C.C.No.8339 of 2011 for the reason that
complainant had not examined the aforesaid Ajay Gupta and
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Sreenivas and not even given the particulars of the said
persons. Therefore, even in the present case, it has to be held
that respondent has failed to prove that he had paid an amount
of ₹.15,00,000/- to the petitioner, after borrowing the money
from the aforesaid Ajay Gupta and Sreenivas.
12. Insofar as the contention urged by the respondent
that he has produced an on demand promissory note to prove
the transaction between the petitioner and respondent is
concerned, no such on demand promissory note was produced
in C.C.No.8339 of 2011. The proceedings in C.C.No.8339 of
2011 was initiated in respect of a subsequent transaction. If the
respondent had obtained an on demand promissory note in
respect of the earlier transaction, in normal circumstances, he
ought to have obtained an on demand promissory note from
the petitioner even in respect of the subsequent transaction.
Therefore, it becomes doubtful that the on demand promissory
note was executed by the petitioner acknowledging receipt of
the amount of ₹.15,00,000/- from the respondent, even
otherwise, in C.C.No.8339 of 2011, the defence put forward by
the petitioner that the cheques in questions in both the cases
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were forcibly taken from her by Rishi Reeva and his
accomplices has been accepted as probable. Under the
circumstances, I am of the opinion that the Court's below were
not justified in convicting and sentencing the petitioner for the
offence punishable under Section 138 of the Negotiable
Instruments Act.
13. Accordingly the following :-
ORDER
(i) Criminal revision petition is allowed.
(ii) The judgment and order of conviction and
C.C.No.51354 of 2010 by the Court of XVI
Addl. Chief Metropolitan Magistrate,
Bengaluru, dated 24.04.2014 and the
judgment and order passed in Criminal
Appeal No.564 of 2014 dated 04.03.2015 by
the Court of Addl. Sessions Judge, FTC-VIII at
Bengaluru are set aside. Petitioner is
acquitted of the offence punishable under
Section 138 of Negotiable Instruments Act
and her bail bonds, if any, stands cancelled.
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(iii) Amount deposited by the respondent, if any,
shall be refunded to her.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
NMS
