Allowed¶53

Smt. B Rajeshwari v. Smt. Jayalakshmi

Karnataka HC4 Dec 2025CRL.RP/1263/2023

Case brief

AI extract

What is this about?

Keywords: Section 138 NI Act; demand notice; RPAD; postal shara 'not claimed'; presumption of service; rebuttal by proving non-residence/different address; cross-examination admission; Exhibits P3, P5, P6, D1; statutory presumption; perversity; criminal revision Sections 397/401 CrPC; concurrent findings; acquittal; chit fund; cheque dishonour 'funds insufficient'; Karnataka High Court; CRL.RP No.1263/2023; Crl.A.No.102/2022; C.C.No.18228/2017; Justice Ravi V Hosmani.

What did the court decide?

Revision petition allowed; judgments of conviction and orders of sentence dated 05.06.2023 in Crl.A.No.102/2022 and dated 16.12.2021 in C.C.No.18228/2017 set aside; accused acquitted of offence punishable under Section 138 NI Act. ¶53

Smt. B Rajeshwari Vs Smt. Jayalakshmi — Cheque Dishonour | Karnataka HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the concurrent judgments convicting the accused under Section 138 NI Act are perverse because due issuance and service of the demand notice preceding the complaint was not established, the notice having returned 'not claimed' and the accused disputing residence at the noticed address.

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Court's answer

Section 138 of the NI Act mandates issuance of demand notice prior to filing of a private complaint, and failure to establish its due issuance and service on the accused is fatal.

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Ratio / Principle

Holding service sufficient merely because the postal shara returned 'not claimed' is not contrary to law, but it remains open to the accused to establish that she was not residing at the said address at the relevant period.

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Key takeaways

Cross-examination of PW.1 elicited a specific admission that the accused resided in the said house on lease prior to the complainant occupying the same.ratio¶42
The complainant's own exhibits indicated a different address for the accused: Exhibit-P5 (complaint dated 18.07.2016 by the complainant's mother-in-law) showed the accused's address as no.788/1st Main, Behind Vyalikaval Police Station, Vyalikaval, and Exhibit-P6 (judgment in C.C.no.19259/2016) showed the same address, unlike the common address in the instant cause title.ratio¶47
Consequently, the impugned judgments passed by the trial Court as well as the Appellate Court would be contrary to the material on record.

Detailed headnote1 paragraphs

Criminal revision under Sections 397/401 CrPC by the accused in a Section 138 NI Act prosecution. The demand notice (Ex.P3, dated 19.04.2017) sent by RPAD had returned with postal shara 'not claimed', and the trial Court held service sufficient on that basis alone. Although the cause title showed the complainant and accused at the same address, cross-examination of PW.1 admitted the accused had resided in the house on lease prior to the complainant, and the complainant's own exhibits (Ex.P5 complaint dated 18.07.2016 and Ex.P6 judgment in C.C.No.19259/2016) showed the accused at no.788/1st Main, Behind Vyalikaval Police Station. Holding that Section 138 mandates issuance of the demand notice before a complaint, that failure to establish due issuance and service is fatal, and that an accused may rebut the 'not claimed' presumption by establishing non-residence at the relevant period, the Court found the concurrent convictions contrary to the material on record, allowed the revision, set aside both the trial and appellate judgments, and acquitted the accused.

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NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF DECEMBER, 2025 BEFORE

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THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 1263 OF 2023

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BETWEEN:

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SMT. B RAJESHWARI, W/O KARTHIK, AGED ABOUT 43 YEARS, R/AT NO 31, NEW NO 62/1, 2^ND FLOOR, 2^ND MAIN, VYALIKAVAL, BANGALORE - 560 003.

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AND ALSO AT VIDYANAGAR CROSS, BETTHALASURU, HANCHE POST, BEHIND GOVERNEMNT SCHOOL, DEVANAHALLI TALUK, BANGALORE - 560 057.

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…PETITIONER

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(BY SRI GURURAJ KULKARNI, ADVOCATE)

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AND:

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Digitally signed by ANUSHA V Location: High Court of Karnataka

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SMT. JAYALAKSHMI, W/O KRISHNAPPA, AGED ABOUT 40 YEARS, R/AT NO 31, NEW NO 62/1, 2^ND FLOOR, 2^ND MAIN, VYALIKAVAL, BANGALORE - 560 003.

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…RESPONDENT

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(BY SRI KUSHAL GOWDA, ADVOCATE FOR SRI ABHINAY Y T., ADVOCATE)

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THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 16.12.2021 PASSED BY THE LEARNED XV A.C.M.M, BENGALURU IN C.C.NO.18228/2017 AND THE ORDER OF CONFIRMATION DATED 05/12.06.2023 PASSED BY THE LIX ADDL.CITY CIVIL AND SESSIONS JUDGE BENGALURU IN CRL.A.NO.102/2022 BY ALLOWING THIS RP AND ACQUIT THE ACCUSED.

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NC: 2025:KHC:50842 CRL.RP No. 1263 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 05.06.2023 passed by LIX Additional City Civil and Session Judge (CCH-60), Bengaluru, in Crl.A.no.102/2022 confirming judgment of conviction and order of sentence dated 16.12.2021 passed by XV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.no.18228/2017, this revision petition is filed.

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Sri Gururaj Kulkarni, learned counsel for petitioner (accused) submitted that proceedings were initiated on a private complaint filed under Section 200 of Code of Criminal Procedure, 1973, (' CrPC ', for short) by respondent (complainant) alleging that complainant was working as cook and accused was running Chit Fund business in shop premises on Ground Floor of her residence. Since accused had represented to her that she had registered license to run Chit Fund business and requested her to become a Member, she had subscribed to Chit commencing on 10.02.2013 on monthly subscription amount of Rs.10,000/- for duration of 50 months.

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NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023

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HC-KAR

¶28

It was further submitted that complainant had paid monthly subscriptions every month without delay and Chit ended in February, 2017 and accused was liable to pay her Rs.5,00,000/-.

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On demand, accused had issued cheque bearing no.230318 dated 15.03.2017 drawn on State Bank of Mysore, Vyalikaval Branch, Malleshwaram, Bengaluru, for Rs.5,00,000/in her favour. But on presentation, said cheque got dishonored, returned with endorsement 'funds insufficient' on 17.04.2017 and thereafter demand notice dated 19.04.2017 got issued by complainant by RPAD, returned with postal shara as 'not claimed' on 18.05.2017. By failing to repay amount within time, accused committed offence punishable under Section 138 of NI Act.

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It was submitted, on appearance, accused had disputed charges and sought trial. Complainant was thereafter examined as PW.1 and got marked documents as Exhibits-P1 to P8. Thereafter, incriminating material was explained to accused, which she denied and her statement under Section 313 of CrPC was recorded. Accused thereafter led defence

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NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023

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HC-KAR

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evidence by examining herself as DW.1 and got marked one document as Exhibit-D1.

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It was submitted, though in cross-examination of PW.1 as well as in her deposition, accused had set-up substantial defence, firstly, contending that filing of private complaint was not preceded with service of demand notice, trial Court had presumed service based on cover returning as 'not claimed' without noticing fact that address of complainant and accused were one and same. And in cross-examination, PW.1 admitted that accused had vacated house. Apart from above, accused had also disputed transaction contending that cheque was stolen etc. Without proper appreciation of said contentions which would be sufficient to upset presumption available to complainant, trial Court and First Appellate Court had passed impugned order of conviction basing only on statutory presumption. Therefore, impugned judgments suffered from perversity and called for interference.

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On other hand, Sri Abhinay Y.T., learned counsel for respondent (complainant) opposed petition. It was submitted, both Courts while passing impugned judgments referred to

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NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023

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HC-KAR

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entire material on record and arrived at reasoned conclusions which did not leave any scope for interference. Insofar as specific contention about failure to serve demand notice prior to filing of complaint, it was submitted, in view of admission elicited in para-8 of cross-examination of DW.1, contention about non-compliance with requirement of service of demand notice would not be tenable. On said ground sought for dismissal of revision petition.

¶41

Heard learned counsel, perused impugned judgments and trial Court record.

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This revision petition is by accused challenging concurrent findings, convicting accused for offence punishable under Section 138 of NI Act. Challenge is mainly on ground of perversity of findings insofar as service of demand notice prior to filing of complaint. A bare perusal of cause title in complaint would reveal that address of complainant and accused are one and same. Though same would be possible in case accused were tenant as contented by complainant, in cross-examination of PW.1, specific admission is elicited about accused residing in said house on lease prior to complainant occupying same.

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NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023

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HC-KAR

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However suggestion that as on date of issuance of legal notice, accused was not residing at address is denied.

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Exhibit-P5 - copy of private complaint filed by mother-in-law of complainant against accused on 18.07.2016, would indicate address of accused herein as no.788/1^St Main, Behind Vyalikaval Police Station, Vyalikaval, Malleshwaram, Bengaluru - 560 003. Even Exhibit-P6 - certified copy of judgment in C.C.no.19259/2016 indicates same address shown in Ex.P5. In instant case, complaint is filed on 28.06.2017 after issuing Ex-P3 - demand notice on 19.04.2017 which returned with postal shara as 'not claimed'.

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While passing impugned judgment, trial Court has proceeded to hold service sufficient on basis of postal shara has 'not claimed'. Though same cannot be stated to be contrary to law, but, it would be open for accused to establish that she was not residing at said address at relevant period. Same is achieved by eliciting admission in cross-examination as well as from documents got marked by complainant. Section 138 of NI Act, mandates issuance of demand notice prior to filing of

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7 - NC: 2025:KHC:50842 CRL.RP No. 1263 of 2023

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HC-KAR

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private complaint and failure to establish due issuance and its

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service on accused would be fatal.

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Consequently, impugned judgments passed by trial Court as well as Appellate Court would be contrary to material on record. Therefore, revision petition is allowed ; impugned judgments of conviction and order of sentences dated 05.06.2023 passed by LIX Additional City Civil and Sessions Judge, (CCH-60), Bengaluru, in Crl.A.no.102/2022 and dated 16.12.2021 passed by XV Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.no.18228/2017 are set aside. Accused is acquitted of offence punishable under Section 138 of NI Act.

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Sd/(RAVI V HOSMANI) JUDGE

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GRD List No.: 1 Sl No.: 39

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment dated 05.06.2023 in Crl.A.No.102/2022 confirming judgment of conviction and order of sentence dated 16.12.2021 in C.C.No.18228/2017 convicting the accused (petitioner) under Section 138 NI Act.¶23
LIX Additional City Civil and Sessions Judge (CCH-60), Bengaluru (First Appellate Court); original conviction by XV Additional Chief Metropolitan Magistrate, Bengaluru · 05.06.2023
Prior proceeding
Proceedings initiated on a private complaint filed by respondent (complainant) under Section 200 CrPC alleging the accused ran a Chit Fund business and induced her to subscribe.¶24
Prior proceeding
Allegation that complainant subscribed to the chit commencing 10.02.2013 at Rs.10,000/- per month for 50 months.¶24
Prior proceeding
Complainant allegedly paid subscriptions without delay; chit ended February 2017 and accused was liable to pay Rs.5,00,000/-.¶28
Prior proceeding
Cheque No.230318 dated 15.03.2017 for Rs.5,00,000/- drawn on State Bank of Mysore, Vyalikaval Branch issued on demand.¶29
Prior proceeding
Cheque dishonoured with endorsement 'funds insufficient' on presentation.¶29
Prior proceeding
Demand notice dated 19.04.2017 issued by RPAD returned with postal shara 'not claimed' on 18.05.2017.¶29
Prior proceeding
Trial: complainant examined as PW.1 and marked Exhibits-P1 to P8; incriminating material explained; Section 313 CrPC statement of accused recorded.¶30
Prior proceeding
Accused led defence evidence examining herself as DW.1 and marking Exhibit-D1.¶34
Prior proceeding
Exhibit-P5: private complaint dated 18.07.2016 filed by complainant's mother-in-law against accused showing accused's address as no.788/1st Main, Behind Vyalikaval Police Station, Vyalikaval, Malleshwaram, Bengaluru - 560 003; Exhibit-P6: certified copy of judgment in C.C.no.19259/2016 showing the same address; complaint in the instant case filed 28.06.2017 after Ex.P3 notice dated 19.04.2017 returned 'not claimed'.¶47
Prior proceeding
Instant complaint filed on 28.06.2017 after Ex.P3 demand notice dated 19.04.2017 returned with postal shara 'not claimed'.¶47

Smt. B Rajeshwari v. Smt. Jayalakshmi

Case brief

What is this about?

What did the court decide?

Smt. B Rajeshwari v. Smt. Jayalakshmi

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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