Sundar Annasaheb Kamble Vs Sandeep S/O Tanai Ghodake — Cheque Dishonour | Karnataka HC (2025)

Sundar Annasaheb Kamble Vs Sandeep S/O Tanai Ghodake — Cheque Dishonour | Karnataka HC (2025)

What the court decided

AI extract

Outcome

None; the conviction under Section 138 N.I. Act and the sentence (fine of Rs.4,00,000/-) stand undisturbed.

Issue for consideration

Whether the cheque (Ex.P1) was issued in discharge of a legally enforceable debt owed to the complainant, as contended by the complainant, or was handed over to a third party merely for security of some other transaction, as contended by the accused. +3 more

Court's answer

If a cheque was issued for security in relation to other transactions, it shall be construed as having been issued towards a legally enforceable debt or liability; there is a presumption that a negotiable instrument is supported by consideration and that the cheque was issued in connection with discharge of liability.

Ratio / Principle

Under the Negotiable Instruments Act, once a cheque is signed and handed over by the accused to the complainant, the presumption under Section 139 of the N.I. Act attracts, in the absence of any contra evidence to show that the cheque was not issued in discharge of a debt.

Key takeaways

Service of notice was duly proved: the complainant issued the legal notice (Ex.P3) soon after dishonour, with postal receipt (Ex.P4) and refused-cover envelope (Ex.P5); applying the presumption under Section 11 of the Post and Telegraphic Act, 1901 as cited by the Court, the notice stands served, the complainant complied with the Section 138 notice requirement, and the burden shifted to the accused, who placed no material showing the notice was not issued.ratio¶15
The accused having admitted his signature on Ex.P1, a person signing and delivering an incomplete negotiable instrument gives the holder prima facie authority to complete it and is not permitted to deny the instrument under Section 20 of the N.I. Act, 1881; the holder therefore completed and presented the cheque, and the Trial Court rightly drew the Section 118 presumptions (as to consideration, date, time of acceptance and transfer, order of endorsements, stamps, and holder in due course).ratio¶20

Detailed headnote1 paragraphs

Criminal Revision (S.397(1) r/w S.401 Cr.P.C.) against concurrent convictions under S.138 N.I. Act — cheque Ex.P1 for Rs.4,00,000/- (No.653054, State Bank of India, Nippani branch, dated 19.05.2017) dishonoured with shara "Drawers signature to operate account not received"; accused admitted execution/signature but claimed the cheque was issued to a third party for security. Held: (i) on a signed cheque handed over to the complainant, the S.139 N.I. Act presumption arises absent contra evidence; (ii) a cheque issued even as security for other transactions is issued towards a legally enforceable debt or liability; (iii) admitted signature of an incomplete negotiable instrument gives the holder prima facie authority to complete it (S.20 N.I. Act), and the S.118 presumptions (consideration, date, time of acceptance/transfer, order of endorsements, stamps, holder in due course) were rightly drawn; (iv) notice service proved by Exs.P4-P5 (refusal endorsement), aided by the presumption under S.11 of the Post and Telegraphic Act, 1901 as cited, shifting the burden to the accused, who led no rebuttal evidence; (v) whether the cheque was for another transaction, repayment, security, or handed to a financial institution makes no difference under S.138. Conviction (fine Rs.4,00,000/-) by the Trial Court and its confirmation by the First Appellate Court left undisturbed — Revision petition dismissed.

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 25^TH DAY OF JUNE, 2025

BEFORE

THE HON'BLE MR. JUSTICE VENKATESH NAIK T

CRIMINAL REVISION PETITION NO.100078 OF 2024 (397 OF Cr.PC/438 OF BNSS)

BETWEEN:

SUNDAR ANNASAHEB KAMBLE, AGE: 50 YEARS, OCC: BUSINESS, R/O. BEHIND CMC, NIPPANI, TAL: NIPPANI, DIST. BELAGAVI-591237.

…PETITIONER

(BY SHRI HARSHAWARDHAN M. PATIL, ADV. FOR

SHRI RAMESH I. ZIRALI, ADVOCATE)

AND:

SANDEEP S/O. TANAJI GHODAKE, AGE: 33 YEARS, OCC: BUSINESS, R/O. KAMGAR CHOWK, NIPPANI, TQ. NIPPANI, DIST. BELAGAVI-591237.

Digitally signed by RAKESH S HARIHAR Location: High Court of Karnataka, Dharwad Bench

…RESPONDENT

(BY SHRI SACHIN C. ANGADI, ADVOCATE)

THIS CRIMINAL REVISION PETITION IS FILED U/S.397(1) R/W 401 OF CR.P.C., SEEKING TO SET-ASIDE THE JUDGMENT PASSED BY VII ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT CHIKODI IN CRL.APP NO.5025/2022 DATED 04.10.2023 AND ALSO TO SET- ASIDE THE JUDGMENT PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT NIPPANI IN C.C NO.117/2018 DATED 23.06.2022 FOR THE OFFENCE PUNISHABLE U/S.138 OF NEGOTIABLE INSTRUMENT ACT BY ALLOWING THIS REVISION PETITION BY ACQUITTING THE PETITIONER FOR THE ALL THE CHARGES LEVELED AND CONVICTED HIM, IN THE INTEREST OF JUSTICE AND EQUITY.

THIS PETITION IS COMING ON FOR FURTHER HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

Heard Sri.Harshwardhan M.Patil, learned counsel for Sri.Ramesh I.Patil., learned counsel the petitioner and Sri.Sachin C.Angadi., learned counsel for respondent.

The petitioner-accused has filed this petition under Section 397(1) read with Section 401 of the Code of Criminal Procedure (for short ‘Cr.P.C.) praying to set-aside the judgment dated 04.10.2023 passed by learned VII Additional District and Sessions Judge, Belagavi sitting at Chikkodi (for short ‘First Appellate Court’) in Crl.A.No.5025/2022 and also to set-aside the judgment of conviction and order of sentence dated 23.06.2022 passed by learned Senior Civil Judge and JMFC., Nippani (for short ‘Trial Court’)in C.C.No.117/2018 for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (for short ‘N.I.Act’).

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For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The petitioner is the accused and respondent is the complainant.

The brief facts of the complainant's case are as under:

The complainant filed a private complaint under Section 200 of Cr.P.C., for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 contending that, the accused had borrowed loan of Rs.4,00,000/- from the complainant in the year 2015 for his family and legal necessity, agreeing to repay the same within one year. However, the accused failed to make payment and the accused postponed to make payment on one or other pretexts, and ultimately, on 19.05.2017, the accused issued a cheque of Rs.4,00,000/- bearing No.653054 drawn on State Bank of India, Nippani branch in favour of complainant. The said cheque was presented

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for encashment. Upon presentation, it was returned with

shara as "Drawers signature to operate account not received”. Thus, complainant got issued legal notice calling upon the accused to pay amount due under the Cheque, but, accused neither replied to the legal notice nor paid amount due under the Cheque. Hence, complainant filed a private complaint under Section 200 of Cr.P.C., for the offence punishable under Section 138 of N.I. Act.

After institution of the complaint, the Trial Court recorded the sworn statement of the complainant, took cognizance under Section 190(1)(a) of Cr.P.C., secured the presence of accused and recorded his plea.

The complainant in order to prove his case, examined himself as PW1 and relied upon the documents as Exs.P1 to P5. The accused also examined as DW1 and got marked Exs.D1 and D2.

After hearing both complainant and accused,

the Trial Court convicted the accused for the offence

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punishable under Section 138 of N.I. Act and sentenced to pay a fine of Rs.4,00,000/- to the complainant.

Being aggrieved by the judgment of conviction and order of sentence passed by the Trial Court, the accused preferred an appeal before the First Appellate Court. In turn, the First Appellate Court confirmed the judgment of conviction and order of sentence passed by the trial Court. Hence, this petition.

Learned counsel for the petitioner vehemently contended that the cheque in question was issued to the third party for security purpose and the complaint does not disclose the exact date of hand loan availed by the accused. Further, the complainant has failed to prove the ingredients that the debt in question was legally recoverable debt and the trial Court has wrongly raised presumption without noticing that the provisions of Section 138 of N.I.Act does not attract at all in the present case. On all these grounds, the counsel prays to set-aside the

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judgment passed by First Appellate Court confirming judgment of conviction and order of sentence passed by the trial Court.

The learned counsel for respondent contended that the accused has admitted issuance of cheque at Ex.P.1, signature found in Ex.P.1 and the transaction. Hence, the Trial Court as well as First Appellate Court has rightly convicted the petitioner for the offence under Section 138 of N.I.Act. Thus, he prayed for dismissal of the revision petition.

On perusal of oral testimony of PW.1 and the documents relied upon by the complainant, it appears that the accused had borrowed a sum of Rs.4,00,000/- from complainant and in consideration thereof, he had issued Ex.P1 - Cheque for a sum of Rs.4,00,000/- drawn on State Bank of India, Nippani Branch, when the complainant presented the said Cheque for encashment, the same was returned with shara as "Drawers Signature to operate

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account not received". Hence, the complainant got issue legal notice vide Ex.P.3 calling upon the accused to pay the amount due under the Cheque and in spite of issuance of legal notice, accused failed to repay amount due under Cheque - Ex.P1.

In the instant case, the complainant has produced Cheque in question as per Ex.P1, it bears the signature of accused as per Ex.P1(a), Ex.P.2 is the Intimation letter, Ex.P.3 is the copy of legal notice, Ex.P.4 is the postal receipt and Ex.P.5 is the postal envelope. In the instant case, accused has admitted issuance of Ex.P1 – Cheque. However, he had taken contention that Ex.P.1Cheque was issued to 3^rd party for security of loan transaction and thereby, he denied the transaction in the manner stated by complainant. Therefore, the accused has disputed transaction with complainant and service of notice upon him.

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As per the provisions of Negotiable Instruments

Act, once a Cheque is signed and handed over to the complainant by the accused, it would attract presumption under Section 139 of the N.I. Act, in the absence of any contra evidence to show that the Cheque was not issued in discharge of a debt.

So far as service of notice upon accused is concerned, the complainant has furnished Ex.P4 - Postal receipt and Ex.P5 – postal envelope. It shows that the complainant got issued legal notice and the same was refused by the accused as per Ex.P5 - Postal envelope.

As per the presumption available under Section 11 of the Post and Telegraphic Act, 1901, if any parcel addressed to particular addressee, it shall deem that, the parcel send to addressee, served on him. Now, in the instant case, the complainant sent legal notice vide Ex.P3 to show that, he issued said notice soon after dishonour of Cheque. Therefore, under Ex.P3, the complainant called

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upon the accused to pay amount due under the Cheque. Contrary to this evidence, accused has not placed any rebuttal evidence. Therefore, the complainant has complied the legal requirements of Section 138 of N.I. Act as to service of legal notice on the accused. Now the burden shifts on the accused to disprove the case of the complainant, but, the accused has not placed any material to show that, notice was not issued to him.

As per the contention of accused, the Cheque was not issued for legally enforceable debt. On the other hand, according to complainant, Ex.P1-Cheque was issued by accused towards discharge of legally enforceable debt i.e,. for his family necessity. On the contrary, the accused has not placed any contra evidence to disbelieve the case of the complainant.

17. Whenever execution of negotiable instruments

is admitted, then, the Court may draw presumption under Section 118 of the N.I. Act, which reads as under:

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"118 Presumptions as to negotiable instruments. —Until the contrary is proved, the following presumptions shall be made :—

(a) of consideration —that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

(b) as to date —that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance —that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer —that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of indorsements —that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f) as to stamps —that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course —that the holder of a negotiable instrument is a holder in due course:

Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."

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If Cheque was issued for security in relation to

other transactions, it shall be construed as the same was issued towards legally enforceable debt or liability. There is a presumption that a negotiable instruments is supported by consideration, and Cheque was issued in connection with discharge of liability.

In the instant case, the complainant has proved that on the relevant date, he lent money to the accused and in consideration thereof, accused issued Ex.P1 - Cheque in favour of the complainant. Further, the accused has not placed any material before the Court to prove under what circumstances, he issued Cheque in favour of the complainant.

The accused has clearly admitted his signature on Ex.P1. When one person signs and delivers to another a negotiable instrument, either wholly blank or nothing written thereon, is an incomplete negotiable instruments, he thereby gives prima facie authority to the holder

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thereof to make or complete, as the case may be, upon it negotiable instrument, for any amount satisfied therein and not exceeding the amount covered by the stamp, the person so signing on the negotiable instruments shall not be denied such instrument under Section 20 of the N.I. Act, 1881. Therefore, the holder of Cheque by invoking Section 20 of the N.I.Act, filled up the Cheque and presents for encashment. Therefore, the Trial Court has drawn presumption under Section 118 of the N.I. Act, so as to consideration, as to date, as to time of acceptance, as to time of transfer and as to order of endorsements, as to stamps and that, holder is a holder in due course.

Thereby, the complainant has proved the transaction and requirements under Section 138 of the N.I. Act. Now, the burden lies on the accused to prove non-existence of consideration which would lead the Court to believe nonexistence of consideration either through direct evidence or by raising a probable defence to show that the existence of consideration was improbable,

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doubtful or illegal. But, the accused has not produced any kind of evidence to show that existence of consideration was improbable, doubtful or illegal. Therefore, the Trial Court has rightly drawn presumption that the Cheque was issued for legally enforceable debt, until contrary is established.

In the instant case, the complainant filed a private complaint under Section 200 of Cr.P.C., for the offence punishable under Section 138 of the N.I. Act, and he fulfilled the ingredients as required under Section 138 of N.I. Act.

Once issuance of Cheque is proved, the presumption under Section 138 of N.I. Act would arise with regard to consideration. But, the accused has not discharged the burden casted on him. Whether the accused has issued Cheque in favour of complainant, in respect of other transactions or for repayment of loan or as security or it was handed over to some financial

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institution, make no difference under Section 138 of N.I.

Act and the legal consequences were same without distinction. Thus, the complainant proved the requirement of Section 138 of N.I. Act.

Thus, the trial Court has rightly convicted the petitioner. The First Appellate Court confirmed the judgment of conviction and order of sentence passed by trial Court. Hence, no interference is called for in this matter and there is no merit in the petition.

Accordingly, the petition stands dismissed .

Sd/(VENKATESH NAIK T) JUDGE

AM /CT-AN List No.: 1 Sl No.: 20

Issues for consideration

4 issues framed by the court

AI extract

1.
Whether the cheque (Ex.P1) was issued in discharge of a legally enforceable debt owed to the complainant, as contended by the complainant, or was handed over to a third party merely for security of some other transaction, as contended by the accused.¶9
The court held
If a cheque was issued for security in relation to other transactions, it shall be construed as having been issued towards a legally enforceable debt or liability; there is a presumption that a negotiable instrument is supported by consideration and that the cheque was issued in connection with discharge of liability.ratio¶18
2.
Whether the complainant duly served the statutory demand notice under Section 138 of the N.I. Act upon the accused.¶14
The court held
Service of notice was duly proved: the complainant issued the legal notice (Ex.P3) soon after dishonour, with postal receipt (Ex.P4) and refused-cover envelope (Ex.P5); applying the presumption under Section 11 of the Post and Telegraphic Act, 1901 as cited by the Court, the notice stands served, the complainant complied with the Section 138 notice requirement, and the burden shifted to the accused, who placed no material showing the notice was not issued.ratio¶15
3.
Whether the presumptions attaching on proof/admission of issuance of the cheque (drawn under Section 118 and Section 139 of the N.I. Act as discussed by the Court) stood rebutted by the accused.¶23
The court held
Under the Negotiable Instruments Act, once a cheque is signed and handed over by the accused to the complainant, the presumption under Section 139 of the N.I. Act attracts, in the absence of any contra evidence to show that the cheque was not issued in discharge of a debt.ratio¶13
4.
Whether the judgments of conviction under Section 138 N.I. Act passed by the Trial Court and confirmed by the First Appellate Court called for interference in this revision.¶cause title (prayer clause)
The court held
The Trial Court rightly convicted the petitioner and the First Appellate Court correctly confirmed the judgment of conviction and order of sentence; no interference is called for and there is no merit in the petition, which accordingly stands dismissed.ratio¶24