A criminal revision petition challenging conviction under Section 138 N.I. Act for cheque dishonour was dismissed. The court held the lower courts correctly applied law, noting the accused failed to prove cheque was stolen or rebut the statutory presumption.
Revision Petition dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2022
BEFORE
THE HON’BLE MR.JUSTICE P N DESAI
CRIMINAL REVISION PETITION NO. 764/2021
BETWEEN:
SRI SURESH B AGED ABOUT 51 YEARS VI CROSS, NEAR VENKATESWARA SCHOOL NAGASHETTIHALLI RMV 2ND STAGE EXTENSION BENGALURU 560 094
… PETITIONER
(BY SRI. UMESH B.N., ADVOCATE)
AND
MR.KRISHNAMURTHY P AGED ABOUT 40 YEARS S/O THIMME GOWDA R/AT NO.6, 3RD CROSS 5TH MAIN, AMARJYOTHI LAYOUT SANJAYNAGAR BANGALORE 560 094
...RESPONDENT
(BY SRI: NARENDRA BABU, ADVOCATE FOR SRI: NATARAJA B.S., ADVOCATE)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 09.01.2020 PASSED BY THE LXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN CRL.A.NO.209/2017 AND THE ORDER OF CONVICTION DATED 20.01.2017 PASSED BY THE XVIII ADDL.C.M.M., BENGALURU IN CC NO.28890/2015 AND ACQUIT THE ACCUSED BY ALLOWING THIS PETITION.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Criminal Revision Petition is filed challenging the Judgment and order of conviction and sentence dated 20-01-2017 passed by the XVIII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C No.28890/2015 which was confirmed by the LXI Additional City Civil and Sessions Judge, Bengaluru City(CCH-62) in Criminal Appeal No.209/2017 dated 09-01-2020 for the offence punishable under Section 138 of Negotiable Instruments Act, 1881(hereinafter shortly referred to as 'N.I.Act').
and disposed off by consent of both counsels.
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trial court. They will be referred to as per their ranks before the trial Court for convenience.
would repay the amount. But he did not repay the amount. When demanded by the complainant, the accused issued a cheque in favour of the complainant for Rs.2,50,000/- dated 14-10-2015 drawn on Bank of India, Sanjaynagar Branch, Bengaluru.
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served, the accused did not repay the amount. Therefore, the complainant filed a complaint before the Metropolitan Magistrate for the offence punishable under Section 138 of the N.I Act.
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Sri Umesh B.N., argued that the order of conviction passed by the trial Court and the order of confirmation by the appellate Court are arbitrary, illegal and erroneous. It is further argued that there was no legally enforceable debt or liability and the accused has rebutted the presumption if any in favour of complainant by showing preponderance of probabilities by bringing on record that the complainant has no capacity to extend the loan. Though the trial Court has recorded that the complainant has failed to produce the documents regarding borrowing of loan, but still convicted the accused which is erroneous. It is further contended that no legal notice was served on the accused. The learned counsel contended that both the Courts have failed to appreciate the evidence brought out by the accused and there is no legally recoverable debt. Hence the learned counsel for the revision petitioner prays to set aside the impugned Judgment and order of conviction which is confirmed by the appellate Court and against the revision petitioner/accused.
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Judgment of conviction and order of sentence passed by the trial Court as well as confirmation of the same by the appellate Court and contends that both the Courts have rightly appreciated the evidence and came to a right conclusion in convicting the accused. Hence, he prayed to dismiss the petition.
"Whether the impugned order passed by both
Courts are correct, legal and in conformity with the
settled principles regarding appreciation of evidence in cross-examination under Section 138 of Negotiable Instruments Act, 1881 which are popularly called as cheque bounce cases?"
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each other he has made the payment. It is evident that, both the accused and the complainant are friends. It is also evident that the revision petitioner/accused has admitted issuance of cheque and also his signature on the cheque which is marked as Ex.P-1. Both the Courts have considered the evidence and held that the issuance of cheque and signature is admitted by the accused. The defence of the accused is that the cheque was stolen from his house. He has failed to prove this defence. If the cheque was stolen, he should have taken appropriate action in accordance with law or he could have lodged a complaint, but he has not chosen to do so.
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discharged by him. Because there is a presumption under Section 139 of N.I Act, that the cheque was issued for discharge of legally recoverable debt or liability. Though there is a presumption but it is rebuttable presumption. Once the initial burden is discharged by the complainant then the onus shifts on the accused to rebut that presumption by two methods. One is by cross-examination of PW.1 and show before the Court that the contention of the complainant is not tenable or that is not probable. The second method is to lead the defence evidence to show before the Court that the evidence of the complainant and the presumption arising by issuance of cheque is not available to the complainant.
petitioner/accused appears to be vague and general denial. He states that the cheque was stolen but he kept quiet and no action was taken against the complainant either by lodging a complaint or filing any cases. The second is service of notice. Though notice was addressed to the proper address given by the accused and the Courts have considered the address of the accused and in view of Section 27 of the General Clauses Act, 1897 once the notice is posted to a correct address through
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Registered Post then there is a presumption about due service or service shall be deemed to be effected properly unless contrary is proved. It is for the accused to rebut the said presumption. Both the Courts have relied on the decisions of the Supreme Court and this Court. It is also evident that the accused has not stated that he has got a blank cheque signed in his house. Though he has informed the Bank to stop payment but he has not disclosed any reason as to why the payment should be stopped. This itself shows the conduct of the accused and he knew very well that he has issued a cheque and it will be presented through the bank for encashment and he has no sufficient amount in the bank. He has kept quiet, simply by instructing the bank to stop payment without any reasons. Even as per the Judgments of both the courts, the complainant has not produced the letter he has issued to the bank to stop payment. Therefore, his defence that the cheque was stolen cannot be believed and his defence is highly improbable.
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bank endorsement memo EX.P-2 which shows that payment stopped by drawer. He has produced Ex.P-3, the copy of statutory demand notice dated 13-11-2015 and Ex.P-5 postal cover.
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unless and until the accused has successfully rebutted the presumption drawn in favour of the complainant by a cogent and specific evidence, the question of passing order of acquittal does not arise at all.
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Accordingly, this revision petition devoid of merit is liable
to be dismissed. Hence, I pass the following:-
ORDER
Revision Petition is hereby dismissed. There is no order
as to costs.
Sd/-
JUDGE
rsk/-
2 issues framed by the court
Whether the impugned orders of conviction and confirmation are correct, legal, and in conformity with principles regarding evidence appreciation in cheque bounce cases under Section 138 of the Negotia
Whether the accused successfully rebutted the presumption of legally recoverable debt under Section 139 of the N.I. Act.
Colour shows how this judgement treated each authority
RANGAPPA vs. MOHANReferred¶15
RANGAPPA vs. MOHAN AIR 2010 SC 1898 · Who else cites this
KISHAN RAO vs. SHANKARE GOWDAReferred¶55
KISHAN RAO vs. SHANKARE GOWDA Criminal Appeal No.508/1990
2 provisions across 2 enactments
SRI SURESH B
MR.KRISHNAMURTHY P
P N DESAI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
