Chandrashekar Vs Dasegowda B

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NC: 2025:KHC:44939 CRL.RP No. 1166 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF NOVEMBER, 2025 BEFORE

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THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 1166 OF 2023

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BETWEEN:

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CHANDRASHEKAR S/O APPAIAH, AGED ABOUT 49 YEARS, R/O HUYIGOWDANAHALLI VILLAGE, SOMANAHALLI POST, KASABA HOBLI, HUNSUR TALUK, MYSORE DISTRICT - 571 105.

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…PETITIONER

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(BY SRI ASHWATH C.M., ADVOCATE FOR SRI MOHAN B.K., ADVOCATE)

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AND:

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Digitally signed by ANUSHA V Location: High Court of Karnataka

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DASEGOWDA B., S/O LATE BETTEGOWDA, AGED ABOUT 66 YEARS, R/O GUNGRALCHATHRA, GRAMA, ELAWALA HOBLI, MYSORE TALUK, MYSORE - 570 016.

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(BY SRI Y.V. PRAKASH, ADVOCATE FOR SRI Y.K. NARAYANA SHARMA, ADVOCATE)

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…RESPONDENT

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THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT DATED 14.07.2023 PASSED BY THE HONBLE IV ADDITIONAL DISTRICT AND SESSION JUDGE, MYSORE IN CRL.A.NO.45/2023 AND ALSO SET ASIDE THE JUDGMENT DATED 10.01.2023 PASSED BY THE HONBLE PRINCIPAL CIVIL JUDGE AND JMFC, MYSORE IN C.C.NO.3746/2018.

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NC: 2025:KHC:44939 CRL.RP No. 1166 of 2023

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HC-KAR

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL ORDER

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Challenging judgment dated 14.07.2023 passed by IV Addl. District and Sessions Judge, Mysore, in Crl.A.no.45/2023 confirming judgment of conviction and order of sentence dated 10.01.2023 passed by Principal Civil Judge and JMFC, Mysore, in C.C.no.3746/20218, this revision petition is filed.

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Sri Ashwath C.M., learned counsel appearing for Sri Mohan B.K., advocate for petitioner (accused) submitted that 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).

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It was submitted, respondent (complainant) had filed private complaint under Section 200 of Code of Criminal Procedure, 1973, (' CrPC ', for short) alleging that complainant and accused were known to each other, when accused had approached complainant for loan of Rs.3,50,000/-, complainant had lent same in July, 2017 on assurance of returning it within

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NC: 2025:KHC:44939 CRL.RP No. 1166 of 2023

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HC-KAR

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one year. Thereafter, when accused failed to repay and complainant demanded return, accused had issued cheque bearing no.502717 dated 06.08.2018 for Rs.3,50,000/- drawn on State Bank of Mysore, Hunsur Branch, Hunsur, which when presented for collection on 06.08.2018 returned with endorsement on 08.08.2018 as "funds insufficient" and even when complainant had got issued demand notice dated 29.08.2018, which was duly served, accused had failed to either repay amount or reply to notice and thereby committed offence under Section 138 of NI Act.

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On appearance and accused seeking trial, complainant examined himself as PW.1 and one Umesh as PW.2 and got marked Exs.P1 to P5. 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, but, did not got marked any documents.

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It was submitted, accused had set-up substantial defence, firstly, contending that cheque was issued as security for an earlier loan transaction for Rs.25,000/- between

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NC: 2025:KHC:44939 CRL.RP No. 1166 of 2023

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HC-KAR

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complainant and accused and which was cleared, but by misusing said cheque, present complaint was filed. It was secondly submitted, accused had clearly denied and disputed financial capacity of complainant to pay amount. During crossexamination, it was admitted by PW.1 that his monthly income from grocery shop was Rs.4,000/- to Rs.5,000/- and there was no other material to substantiate complainant's financial capacity to lend sum of Rs.3,50,000/-. It was further submitted, complainant's claim that it was cash transaction would also lead to doubt.

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It was submitted, Hon'ble Supreme Court in APS Forex Services Pvt. Ltd. v. Shakti International Fashion

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Linkers and Ors. , reported in (2020) 12 SCC 724 , held in case complainant claims transaction with accused was in cash and accused denied or disputed complainant's financial capacity to pay such amount, burden would shift back on complainant to establish his financial capacity with positive evidence.

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It was submitted, Hon'ble Supreme Court in case of Tedhi Singh v. Narayan Dass Mahant , reported in (2022) 6 SCC 735 , had held presumption under Section 139 of NI Act

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NC: 2025:KHC:44939 CRL.RP No. 1166 of 2023

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was rebuttable and standard of proof required for setting up probable defence could not be unduly high.

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Referring to decision of Hon'ble Supreme Court in case of John K. Abraham v. Simon C. Abraham and Anr. , reported in (2014) 2 SCC 236 , it was submitted failure to remember particulars such as date and place of lending were held to be fatal. On above grounds submitted that findings of Trial Court as well as Appellate Court suffered from perversity and sought for allowing revision.

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On other hand, Sri Y.V. Prakash, learned counsel appearing for Sri Y.K. Narayana Sharma, advocate for complainant opposed petition. It was submitted, both Courts had concurrently convicted accused for offence punishable under Section 138 of NI Act. Said findings were after detailed examination of entire material and by assigning reasons and scope for interference in revision petition would be minimal. It was submitted, though contention that cheque was issued as security was taken, there was no material to substantiate earlier borrowal or its repayment and about issuance of cheque as security for said purpose.

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NC: 2025:KHC:44939 CRL.RP No. 1166 of 2023

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HC-KAR

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It was further submitted, though contention disputing financial capacity of complainant was urged, during cross-examination of PW.1, accused elicited particulars of payment and there was no suggestion that said particulars were false. Thus, there was no dispute about financial capacity before trial Court. It was further submitted, apart from examining himself, complainant had also examined one Umesh as PW.2, in whose presence transaction had taken place and PW.2 had clearly supported complainant's case. Thus, revision petition was without merit.

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Heard learned counsel, perused impugned

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judgments and records.

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This revision petition is by accused against concurrent judgments convicting accused for offence punishable under Section 138 of NI Act. Hon'ble Supreme Court in case of K. Ravi v. State of Tamil Nadu and Another , reported in 2024 SCC OnLine SC 2283 and Amit Kapoor v. Ramesh Chander & Anr. , reported in (2012) 9 SCC 460 , have held scope for interference against concurrent findings under Section 397 of CrPC, would be limited to

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NC: 2025:KHC:44939 CRL.RP No. 1166 of 2023

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examining whether impugned judgments suffered from

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perversity or infraction of statutory provisions.

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In instant case, there is no dispute about infraction

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of provisions of law such as timeline provided in Section 138 of NI Act. Main grounds urged in revision petition are perversity of findings. Insofar as first contention that cheque was issued as security for earlier loan, it is seen, such contention is taken in deposition of accused as DW.1. Even as per same, loan borrowed by accused was stated to be in year 2015, there is no material to indicate it was repaid. Apart from fact that there was no material placed to establish said loan was cleared and cheque issued as security for said loan was misused, there is no assertion or explanation by accused for not having issued any intimation to his banker to stop payment on cheque in question.

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Moreover, accused failed to reply to demand notice

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got issued by complainant. It is observed by Courts time and again that bare contention that cheque was issued as security would not be sufficient to upset statutory presumption under NI Act. Further very contention of accused that cheque was issued

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as security would admit his signature on Ex.P1-cheque. Therefore, complainant would be entitled for presumption that cheque was issued towards discharge of legally enforceable debt.

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Insofar as dispute about financial capacity, in crossexamination of PW.1, indeed accused has elicited admission that complainant was having an income of only about Rs.4,000/- to Rs.5,000/- per month from his provisional store. However at same time, he has also elicited particulars of payment such as denomination of currency by which payment was made. Further, admission that complainant does not remember exact date of payment is also elicited. But same would not be fatal as there is no suggestion by accused that such particulars were incorrect or false.

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In course of cross-examination, it is also elicited that apart from provisional store, complainant is also having agricultural land and was doing agriculture and that he had performed marriages of his four daughters. Even said statement is not suggested to be false or incorrect. These assertions would provide sufficient explanation that

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NC: 2025:KHC:44939 CRL.RP No. 1166 of 2023

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HC-KAR

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complainant had financial capacity to lend money. Moreover, complainant stated that transactions occurred in presence of one Umesh - PW.2, resident of village of accused. PW.2 supported complainant and despite cross-examination, nothing material so as to counter complainant's case is elicited. Therefore, contention about financial capacity would also required to be rejected.

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Hon'ble Supreme Court in its recent iteration in Sanjabij Tari v. Kishore S. Borcar and Anr. , reported in 2025 SCC Online SC 2069 , has clarified that decision in APS Forex Services Pvt. Ltd. case, cannot be for proposition that in case of accused disputing financial capacity of complainant, presumption under Section 139 of NI Act would not arise. Likewise said decision also referred to decision in Tedhi Singh 's case to conclude that failure of accused to issue reply to demand notice would lead to an inference against accused. Said factor would also go against accused in instant case.

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Decision in John K. Abraham 's case (supra), would clearly distinguishable from instant case on facts. In said decision, not only about lending, complainant did not remember

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who had filled particulars in cheque, when and where financial transaction between complainant and accused had taken place. Unlike in present case, where it is stated to have been taken in presence of Umesh examined as PW.2 and complainant had stated that money was lent in July, 2017. In view of above, none of contentions urged by petitioner would be sufficient to entertain revision petition. Hence, revision petition is

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dismissed .

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Sd/(RAVI V HOSMANI) JUDGE

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GRD List No.: 1 Sl No.: 31

Chandrashekar v. Dasegowda B

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Chandrashekar v. Dasegowda B

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