Allowed

Mr. S Dhananjaya Naidu v. Mr J Dhamodhara Naidu

Karnataka HC16 Jun 2025CRL.RP/152/2021

Case brief

AI extract

What is this about?

Three criminal revision petitions filed by an accused challenging conviction for cheque dishonour under Section 138 of NI Act were dismissed. The High Court held that the accused failed to rebut the statutory presumption due to conduct inconsistent with the defence and affirmed the lower court's findings.

What did the court decide?

Petitions filed under Section 397 r/w 401 Cr.P.C were dismissed and the impugned judgments of conviction were confirmed.

Mr. S Dhananjaya Naidu Vs Mr J Dhamodhara Naidu — Cheque Dishonour | Karnataka HC (2025)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE, 2025

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BEFORE

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THE HON'BLE MS JUSTICE J.M.KHAZI

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CRIMINAL REVISION PETITION NO.152 OF 2021

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C/W

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CRIMINAL REVISION PETITION NO.160 OF 2021, CRIMINAL REVISION PETITION NO.749 OF 2021

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IN CRL.RP NO.152/2021 BETWEEN:

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MR. S DHANANJAYA NAIDU S/O VENKATARAMANA NAIDU, AGED ABOUT 53 YEARS, R/AT NO. 222, 3^RD MAIN, MANASA RESIDENCY, BOB COLONY, J P NAGAR, 7^TH PHASE, BENGALURU - 560 078

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...PETITIONER

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(BY SRI.SRIDHARA K, ADVOCATE)

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AND:

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MR J DHAMODHARA NAIDU S/O J GANGAM NAIDU, AGED ABOUT 60 YEARS, R/AT NO. 25, RAM MANDIR RD, KAVERI NAGAR, KATRIGUPPE BENGALURU - 560 085

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…RESPONDENT

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(BY SMT.MANJULA.N.TEJASVI, ADVOCATE A/W SRI.RAGHAVENDRA.L.MISKIN, ADVOCATE)

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THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED IN C.C.NO.15569/2017 DATED 05.03.2019 ON THE FILE OF THE XII A.C.M.M., AT BENGALURU FOR THE OFFENCE P/U/S 138 OF THE N.I ACT AND ALSO SET ASIDE THE JUDGMENT AND ORDER DATED 10.02.2020 PASSED IN CRL.A.NO.884/2019 ON THE FILE OF THE CITY CIVIL AND SESSIONS JUDGE (CCH-66) BENGALURU AND ETC.,

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IN CRL.RP NO.160/2021 BETWEEN:

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MR. S DHANANJAYA NAIDU S/O VENKATARAMANA NAIDU, AGED ABOUT 53 YEARS, R/AT NO. 222, 3^RD MAIN, MANASA RESIDENCY, BOB COLONY, J P NAGAR, 7^TH PHASE, BENGALURU - 560 078

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...PETITIONER

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(BY SRI.SHRIDHARA K, ADVOCATE-ABSENT)

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AND:

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MR J DHAMODHARA NAIDU S/O J GANGAM NAIDU, AGED ABOUT 60 YEARS, R/AT NO. 25, RAM MANDIR RD, KAVERI NAGAR, KATRIGUPPE BENGALURU - 560 085

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…RESPONDENT

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(BY SRI.RAGHAVENDRA.L.MISKIN, ADVOCATE)

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THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED IN C.C.NO.21066/2017 DATED 05.03.2019 ON THE FILE OF THE XII A.C.M.M., AT BENGALURU FOR THE OFFENCE P/U/S 138 OF THE N.I ACT AND ALSO SET ASIDE THE JUDGMENT AND

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ORDER DATED 10.02.2020 PASSED IN CRL.A.NO.885/2019 ON THE FILE OF THE LXV ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-66) BENGALURU AND ETC.,

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IN CRL.RP NO.749/2021 BETWEEN:

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MR. S DHANANJAYA NAIDU S/O VENKATARAMANA NAIDU, AGED ABOUT 53 YEARS, R/AT NO. 222, 3^RD MAIN, MANASA RESIDENCY, BOB COLONY, J P NAGAR, 7^TH PHASE, BENGALURU - 560 078

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...PETITIONER

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(BY SRI.SRIDHARA K, ADVOCATE)

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AND:

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MR J DHAMODHARA NAIDU S/O J GANGAM NAIDU, AGED ABOUT 60 YEARS, R/AT NO. 25, RAM MANDIR RD, KAVERI NAGAR, KATRIGUPPE BENGALURU - 560 085

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…RESPONDENT

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(BY SMT.MANJULA.N.TEJASVI, ADVOCATE A/W SRI.RAGHAVENDRA.L.MISKIN, ADVOCATE)

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THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED IN C.C.NO.15568/2017 DATED 05.03.2019 ON THE FILE OF THE XII A.C.M.M., AT BENGALURU FOR THE OFFENCE P/U/S 138 OF THE N.I ACT AND ALSO SET ASIDE THE JUDGMENT AND ORDER DATED 10.02.2020 PASSED IN CRL.A.NO.883/2019 ON THE FILE OF THE CITY CIVIL AND SESSIONS JUDGE (CCH-66) BENGALURU AND ETC.,

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 21.04.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN AS UNDER:

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CORAM: HON'BLE MS JUSTICE J.M.KHAZI

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CAV ORDER

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In these petitions filed under Section 397 r/w Section 401 of Cr.P.C, accused has challenged his conviction and sentence for the offence of punishable under Section 138 of Negotiable Instrument Act (for short "N.I.Act") by the trial Court, which came to be confirmed by the Sessions Court by dismissing the appeals filed by him.

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In the criminal cases out of which these petitions have arisen, the complainant and accused are common. In all the cases the contention taken by the complainant and defence of the accused are same. They also involve common discussion and findings. Therefore, all the petitions are taken together and disposed off by a common order.

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For the sake of convenience, parties are referred

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to by their ranks before the trial Court.

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It is the case of the complainant that he and accused entered into a sale agreement dated 26.11.2014, by which, accused who is the owner of the flat agreed to sell the same to the complainant for a total sum of ₹40 lakhs. By way of advance, complainant paid ₹15 lakhs and he was required to pay balance consideration of ₹25 lakhs on the date of registration. Accused agreed to complete the construction and handover possession of the property within 15 months from the date of agreement. However, complainant paid balance consideration of ₹25 lakhs in five

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instalments on the following dates .

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Rs.6,50,000/- on 21.12.2014, 2) Rs.5,00,000/- on 28.12.2014, 3) Rs.5,00,000/- on 13.01.2015, 4) Rs.3,50,000/- on 20.01.2015, 5) Rs.5,00,000/- on 15.04.2015.

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However, the accused failed to complete the construction within 15 months and execute the sale deed.

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On the repeated request and demand by the complainant, accused made an endorsement on the sale agreement on 09.01.2017 that he would pay the entire sum of Rs.40 lakhs together with additional sum of Rs.14 lakhs towards

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compensation for the delay. He issued three post dated 25.02.2017 cheque for Rs.20 lakhs, dated 30.03.2017 for

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Rs.4,00,000/- and cheque dated 28.04.2017 for Rs.30 Lakhs, with an assurance that they would be honoured on presentation. However, when complainant presented the cheques for encashment, they were returned dishonoured for want of sufficient funds and got issued legal notices to the accused. However, the accused has failed to comply with the legal notice. On the other hand he sent evasive reply and therefore, without any alternative complaint is filed.

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In respect of dishonour of three cheques, the complainant has filed three separate complaints.

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After due service of summons, accused has

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entered appearance through counsel and contested the case by pleading not guilty.

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In order to prove the allegations against the accused, in C.C.No.15568/2017 complainant examined himself as PW-1 and got marked Exs.P1 to 7.

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In C.C.No.15569/2017, complainant is examined

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as PW-1 and Exs.P1 to 6 are marked.

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In C.C.No.21066/2017, complainant is

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examined as PW-1 and Exs.P1 to 5 are marked.

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In all these cases, during the course of his statement under Section 313 of Cr.P.C, accused has denied the incriminating evidence led by the complainant.

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In all these three cases, the accused has not led any oral evidence. However, in C.C.No.15568/2017 accused got marked Exs.D1 to 3.

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The trial Court accepted the case of the complainant and convicted the accused and sentenced him as detailed in order.

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Accused challenged his conviction and sentence before the Sessions Court. However, the appeal filed by him came to be dismissed, confirming the judgment and order of the trial Court.

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Aggrieved by the concurrent findings of the trial Court as well as the Sessions Court, accused is before this Court, contending that they are illegal, perverse, and bad in law. Courts below have committed error while appreciating the evidence of complainant, since he has failed to prove the existence of any legally recoverable debt or liability and has suppressed material facts. At the same time, the Courts below have failed to appreciate that accused has successfully rebutted the presumption producing the documents and through the crossexamination of complainant. When the complainant lost his claim under Ex.D1, the question of accused having the liability to pay the amount under cheques would not arise.

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15.1 The accused has established that complainant extracted the cheques from the accused by exerting force through his muscle man. Even though accused was ready to perform his part of contract by executing the sale deed, complainant was not ready. The complainant has managed to collect the cheques forcefully from the accused. Though the alleged liability of accused was Rs.40 lakhs, the

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complainant is not having any explanation as to why he collected cheques for total sum of Rs.54 lakhs. Such being

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the case, the Courts below have committed error in drawing presumption under Sections 118 and 139 of N.I.Act and holding that the accused has not rebutted the presumption. The dispute between the parties is civil in nature and the complainant has tried to give it criminal colour. Viewed from any angle the impugned judgment and orders are not sustainable and hence the petitions.

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In support of his arguments, learned counsel

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for accused has relied upon the following decisions:

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(i) Indus Airways Pvt.Lts Vs. Magnum Aviation Pvt. Ltd. ( Indus Airways )¹

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(ii) P.Venugopal Vs. Madan P.Sarathi ( P.Venugopal )²

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(iii) M.S.Narayana Menon Vs. State of Kerala ( M.S.Narayana Menon )³

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On the other hand learned counsel for

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complainant supported impugned judgments and orders. He would submit that though there was sale agreement

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1 (2014) 12 SCC 539

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2 (2009) 1 SCC 492

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3 (2006) 6 SCC 39

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between the parties according to which the accused was supposed to complete construction within 15 months and

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execute the sale deed. On account of inordinate delay in completing the construction, the said agreement came to an end and accused agreed to refund the amount paid by the complainant with additional sum of Rs.14 lakhs and accordingly issued three post dated cheques. When they were dishonoured for want of sufficient funds and also failure of the accused to comply with the legal notice, without any other option, complainant filed the complaints. Appreciating the oral and documentary evidence placed on record, the trial Court as well as the First Appellate Court have rightly convicted and sentenced him. There is no perversity calling for interference by this Court in exercise

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of the revisionary jurisdiction and pray to dismiss the petitions.

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18. Heard arguments and perused the record.

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The undisputed facts are that accused offered

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to sell a flat to the complainant for a sum of ₹40 lakhs and entered into a sale agreement dated 26.11.2014. As per

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the terms of the sale agreement, complainant has paid ₹15 lakhs by way of advance and accused agreed to complete the construction within 15 months and executed the sale deed. In other words, the construction was supposed to be completed within 25.02.2016. In the sale agreement, it is agreed that balance sale consideration of ₹25 lakhs is to be paid at the time of registration of the sale deed. As per the terms of the sale agreement, if the complainant failed to get the sale deed executed within time the advance of ₹15 lakhs would be forfeited.

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Even though the complainant was not required

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to pay balance sale consideration before the registration, from the endorsement made on the sale agreement, it is evident that for want of funds, the accused has collected the entire balance sale consideration of ₹25 lakhs, and the last payment was made on 15.04.2015. The accused has not produced completion certificate to show that on or before before 25.02.2016, the construction is completed and he offered to execute the sale deed. Since already the entire sale consideration was paid there was nothing to be

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done by the complainant as his part of contract. The endorsement dated 09.01.2017 made on the flip side of page 3, clearly indicate that accused has agreed to refund advance together with compensation, the sum of ₹14 lakhs and accordingly issued three post dated cheques for total sum of ₹54 lakhs. Undisputedly, on presentation, the cheques were dishonoured for want of sufficient funds.

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Having regard to the fact that the cheques are drawn on the account of accused and they bear his signature and on presentation, they are dishonoured for want of sufficient funds and on the failure of accused to

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pay the amount due despite issue of legal notice, presumption under Section 139 of N.I.Act is attracted, placing the initial burden on the accused to rebut the presumption and prove that the cheques were not issued towards repayment of any legally recoverable debt on liability and on the other hand to establish this circumstances in which the cheques have gone into the hands of complainant.

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In response to the legal notice, the accused

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sent reply, contending that though he is ready to execute

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the sale deed, complainant was not ready and with the help of Gunda elements, he has forcefully taken the cheques from him. Admittedly, the accused has not taken any criminal action against complainant for having taken the cheques from him forcefully with the help of Gunda elements. If not filing any criminal complaint, at least accused could have instructed his bank not to honour the cheques by specifying the reasons. However, accused has

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not opted to do so. When accused has utilised the sale consideration of ₹40 lakhs paid by the complainant for construction of the flat and after lapse of more than two years, it would be reasonable for the complaint to expect

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that his money would be returned along with some interest. If really complainant had extracted the cheques forcefully from the accused, the best option available to him was to instruct the bank to stop payment. The conduct of the accused is contrary to the defence taken by him. Therefore, he has failed to rebut the presumption and prove the defence taken by him and in the light of oral and

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documentary evidence, the complainant has proved his case.

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So far as Indus Airways , referred to supra, though the Hon'ble Supreme Court held that a cheque issued by way of security also attract presumption under Sections 118 and 139 of N.I Act, on facts, it was held that since the contract between the parties was cancelled, the complainant was not justified in presenting the cheque and proceeding against the accused. Similarly, in M.S.Narayana Menon, referred to supra, also on facts it was held that it was not a loan transaction and acquitted the accused. Therefore, accused cannot take advantage of these two decisions.

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So far as P.Venugopal , referred to supra is concerned, it is based on Krishna Janardhan Bhat Vs. Dattatraya G.Hegde ( Krishna Janardhan Bhat )⁴ , which is over ruled by the Hon'ble Supreme Court in Rangappa Vs.

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4 (2008) 4 SCC 54: 2008 AIR SCW 738(SC)

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Sri Mohan ( Rangappa )⁵ . Therefore, accused cannot take advantage of this decision also.

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The trial Court as well as the Sessions court on appreciation of the oral and documentary evidence placed on record have rightly held that the allegations against accused are proved and convicted and sentenced him. The conclusions arrived at and findings given by the Courts below are consistent with the evidence on record and there is no perversity calling for interference by this Court in exercise of revisionary registration. In the result, the petitions fail and accordingly the following:

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ORDER

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