A cheque-dishonour conviction under Section 138 NI Act was upheld. The revision petitioner claimed the complainant misused a cheque for a Rs.5 lakh loan she never received, but failed to rebut statutory presumptions; both courts' findings were found sound.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.415 OF 2020
BETWEEN:
…PETITIONER
(BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)
AND:
Digitally signed by SHARANYA T 1. SMT. SUMANA S. RAO, Location: HIGH W/O SUDHAKAR RAO, COURT OF AGED ABOUT 44 YEARS KARNATAKA R/AT “GOKUL COMPOUND” NO.13/48, HIRAGANA VILLAGE, KARKALA TALUK, UDUPI DISTRICT-576117.
…RESPONDENT
(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE)
THIS CRL.RP. IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 13.04.2016 MADE IN C.C.NO.703/2014 BY THE COURT OF II ADDITIONAL CIVIL JUDGE AND JMFC, KARKALA AND THE JUDGMENT AND ORDER DATED 26.02.2020
NC: 2024:KHC:13836 CRL.RP No. 415 of 2020
MADE IN CRL.A.NO.38/2016 BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI DISTRICT, UDUPI.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
This matter is listed for admission. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
appeared and not pleaded guilty and hence the complainant examined herself as P.W.1 and got marked the documents at Exs.P.1 to 29. After the closure of the evidence, 313 statement of the accused was recorded and the accused examined herself as D.W.1 and got marked the documents at Exs.D.1 to 28. The Trial Court having considered both oral and documentary evidence placed on record, taken note of the exhibit ‘P’ series and ‘D’ series and comes to the conclusion that the defence which was taken by the accused was vague and improbable and nothing is placed on record to substantiate the defence and convicted the accused to pay a fine of Rs.5,25,000/- and in case of default, to undergo simple imprisonment for six months.
complainant failed to prove the legal enforceable debt against the accused. The respondent put forth three different versions which is highly doubtful and she has no income of her own and paying capacity of the said amount. The learned counsel submits that an application is filed before the First Appellate Court to lead additional evidence and the same is rejected. The very approach of both the Courts is erroneous. The learned counsel submits that it is the specific case of the petitioner that she only availed an amount of Rs.1,00,000/- and not Rs.5,00,000/- and the complainant was not having capacity to lend the money of Rs.5,00,000/-. The Cheque was misused and hence separate complaint was filed before the police and the police have not taken any action and hence private complaint was filed and thereafter the police have investigated the matter and filed ‘B’ report. Hence, it requires interference of this Court by exercising the revisional powers.
by the Trial Court and the First Appellate Court in detail. The Court has also taken note of the presumption under Section 139 of the Negotiable Instruments Act (‘NI Act’ for short). The defence has not been probablized by producing cogent evidence, except producing the documents in exhibit ‘D’ series and those documents discloses that the accused approached different forums and harassed the complainant by filing complaint and ‘B’ report is also filed and the same has not been challenged.
DSP and ASP, postal acknowledgment, postal receipt and RTC extracts. The Trial Court while considering the evidence of both the parties, in detail discussed about the transaction and specific pleading made by the complainant. In the complaint, the complainant has stated that she has borrowed loan from her husband and her sisters and Cheque is also dated 27.02.2014 and it is the specific case of the complainant that the amount was borrowed in the month of November 2013.
Act, the presumption is also rebuttable and evidence of the complainant has not been rebutted by probablising the case of the accused. In paragraph No.22, the First Appellate Court taken note of the fact that P.W.1 categorically deposed that the accused was known to her for more than ten years and she had represented that she would sell her property and return the loan amount. It is also elicited that earlier the accused had taken loan of Rs.25,000, Rs.50,000/- and Rs.1,00,000/- etc. and she had returned the money. The accused also admitted about availing of loan earlier from the complainant.
produced. The records discloses that the revision petitioner has approached different forums and ultimately not succeeded in filing the private complaint and making the allegation of borrowing only an amount of Rs.1,00,000/- and misuse of the Cheque and ultimately ‘B’ report is filed and the same is not disputed and subsequent to the filing of ‘B’ report also, the same has not been challenged. When such materials are considered by the Trial Court and the First Appellate Court, I do not find any error in convicting the accused for the offence punishable under Section 138 of the NI Act. The conviction is based on both oral and documentary evidence placed on record and the accused has not probablised her case and an attempt made by her to probablize her case by filing a private complaint also was unsuccessful and the same defence is also taken before this Court. When such being the case, I do not find any ground to exercise the revisional jurisdiction, unless any perversity is found in the findings of the Trial Court and the First Appellate Court. Hence, no grounds to admit the petition and consider the same.
following:
NC: 2024:KHC:13836 CRL.RP No. 415 of 2020
ORDER
The criminal revision petition is dismissed.
Sd/JUDGE
MD List No.: 1 Sl No.: 39
2 issues framed by the court
Whether the accused's defence that only Rs.1,00,000/- was borrowed, not Rs.5,00,000/-, probablised her case against the Section 138 presumption.
Whether the concurrent findings of the Trial Court and First Appellate Court warrant interference under revisional jurisdiction.
5 provisions across 2 enactments
Smt. Mallika S. Shetty
Smt. Sumana S. Rao
H.P.Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
