Smt Rathnavathi Vs M/S Sri Rajeshwari(Merchant) Finance

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NC: 2025:KHC:16743 CRL.RP No. 309 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF APRIL, 2025

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BEFORE

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THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO. 309 OF 2018

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BETWEEN:

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SMT RATHNAVATHI W/O SRI SIDDEGOWDA AGED ABOUT 42 YEARS, R/AT NO.135, BACK SIDE OF RAGHAVENDRA BAKERY & SWEETS, GOVERNMENT SCHOOL ROAD WARD NO.102, RUSHABHAVATHINAGARA MAGADI MAIN ROAD, KAMAKSHIPALYA BANGALORE-560079

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…PETITIONER

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(BY SRI. J PRAKASH, ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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M/S SRI RAJESHWARI(MERCHANT) FINANCE REPRESENTED BY ITS MANAGER SRI H S PRAMESH S/O LATE SIDDANNA AGED ABOUT 42 YEARS HAVING ITS REGISTERED OFFICE AT NO.754, 1^ST FLOOR, SWARNAMBA COMPLEX ANJANANAGARA, MAGADI MAIN ROAD VISHWANEEDAM POST, BANGALORE-560091

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…RESPONDENT

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(BY SRI. RAVISHANKAR K, ADVOCATE)

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NC: 2025:KHC:16743 CRL.RP No. 309 of 2018

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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 TO SET ASIDE THE JUDGMENT AND ORDER DATED 28.09.2016 PASSED IN C.C.NO.30913/2014 ON THE FILE OF THE XLII A.C.M.M., BANGALORE AND JUDGMENT DATED 01.02.2018 PASSD IN CRL.A.NO.1222/2016 ON THE FILE OF THE LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-60) BANGALORE AND THEREBY ACQUIT THE PETITIONER FROM THE OFFENCE P/U/S 138 OF N.I ACT.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI

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ORAL ORDER

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

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For the sake of convenience, parties are

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referred to by their ranks before the trial Court.

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Complainant is an establishment, running finance business. It filed a complaint against the accused alleging that for her legal necessity during the third week

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NC: 2025:KHC:16743 CRL.RP No. 309 of 2018

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of November 2013, accused borrowed a sum of ₹1,90,000/executing necessary documents. She promised to repay the loan within 10 months, but failed. When insisted upon, she issued the subject cheque for ₹1,90,000/- dated 22.08.2014. However, when presented

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for realisation, it was dishonoured for want of sufficient funds. When complainant got issued legal notice, instead of repaying the amount due, she has sent an evasive reply and hence the complaint.

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Accused resisted the case by pleading not

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guilty.

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On behalf of the complainant, one witness is

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examined as PW-1 and Ex.P1 to 11 are marked.

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During the course of his statement under

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Section 313 Cr.P.C accused has denied the incriminating evidence led by the complainant.

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NC: 2025:KHC:16743 CRL.RP No. 309 of 2018

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The accused has also given evidence as DW-1 and relied upon Exs.D1 to 10.

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The trial Court convicted the accused and

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sentenced her to pay fine with default sentence to undergo imprisonment. It also ordered for payment of compensation with the default sentence.

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Aggrieved by the same accused had approached

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the Sessions Court in Crl.A.No.1222/2016. However, it was dismissed confirming the judgment and order of the trial Court.

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Aggrieved by the concurrent judgment and

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order of the trial Court and Sessions Court, accused is before this Court contending that the impugned judgment and order of the trial Court and Sessions Court are contrary to law, material on record, they are opposed to facts and circumstance of the case. The Courts below have misread the evidence placed on record. They have failed

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NC: 2025:KHC:16743 CRL.RP No. 309 of 2018

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to appreciate the fact that complainant is running chit business and accused was member of the said chits floated by the complainant. In fact accused has filed complaint against the complainant for cheating her. Through the oral and documentary evidence placed on record, the accused has rebutted presumption, placing the burden on the complainant to prove her case. However, the complainant failed to establish the allegations against the accused. It is a case for acquittal and pray to allow the petition and acquit accused.

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On the other hand, learned counsel for complainant submitted that it is a clear case of accused borrowing loan from the complainant finance and issuing the cheque towards the payment of the same. When presented the cheque was dishonoured for want of sufficient funds. After issuing the legal notice and complying with the formalities, complaint is filed, placing the initial burden on the accused to rebut the presumption. However, accused has failed to discharge the

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NC: 2025:KHC:16743 CRL.RP No. 309 of 2018

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initial burden. On the other hand, the evidence by the complainant prove the allegations and therefore both trial Court and Sessions Court are justified in convicting the accused. There is no perversity calling for interference by this Court and pray to dismiss the petition also.

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Heard arguments and perused the record.

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Accused admit the fact that the cheque in question is drawn on her account, maintained with her banker and it bears her signature. On presentation, it is dishonoured for want of sufficient funds. After issuing legal

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notice and on non-compliance, complaint is filed. In the light of these undisputed facts, presumption under Section 118 and 139 of N.I Act has come into play, placing the initial burden on the accused to rebut the same. In the reply notice as well as during the course of evidence accused has taken a specific defence that complainant was running chit business and she had participated in number of chits and for the security of chits, she had issued two blank cheques. Misusing the same, complainant filed two

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NC: 2025:KHC:16743 CRL.RP No. 309 of 2018

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complaints. One complaint was dismissed, but

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unfortunately, in this complaint, she is convicted.

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Now the question is whether the accused has proved the defence taken by her and, thereby rebutting the presumption. Exs.D1, D6 to 9 are number of chit cards issued in the name of complainant finance. It bears the same address as that of the complainant. Though PW-1 has denied the suggestions that complainant was also running chit business, these documents clearly indicates that it is also running a chit business. However, except Exs.D1, 6 to 9, there is no material to show that the subject cheque was given by the accused to the complainant in connection with these chit transactions. The accused has totally denied that she has taken any loan from the complainant. However, Exs.P6 and 9 clearly indicates that accused has also borrowed loan from the complainant.

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NC: 2025:KHC:16743 CRL.RP No. 309 of 2018

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It is relevant to note that the chits at Exs.D1, 6 to 9 have ended by the end of December 2012, whereas the loan referred to by the complainant is taken in the month of November 2013. By December 2012, if the chit transaction have come to an end, there was no impediment for the accused to insist upon returning the cheques given by her to complainant by way of security for the chit transaction. If the complainant failed to return them, she could have simply instructed the bank for 'Stop payment'. However, the accused has not chosen to do so.

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On the other hand, the loan agreement at Ex.P6 and loan application at Ex.P9 clearly indicate that accused has borrowed loan of ₹1,90,000/- and issued the subject cheque. Consequently, the accused has failed to rebut the presumption. On the other hand, the complainant through the oral and documentary evidence placed on record has proved the preliminary facts for drawing the presumption. The trial Court as well as the Sessions Court, on appreciation of the oral and documentary evidence have

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NC: 2025:KHC:16743 CRL.RP No. 309 of 2018

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rightly held that the allegations against accused are proved beyond reasonable doubt. The conclusions arrived at by them is consistent with evidence on record. This Court finds no perversity calling for interference in the exercise of revisionary jurisdiction. Consequently, the petition fails and accordingly the following:

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ORDER

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Petition filed by the accused under Section 397 r/w Section 401 of Cr.P.C. is dismissed.

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The impugned judgment and order dated 28.09.2016 in CC.No.30913/2014 on the file of XLII ACMM, Bengaluru and judgment and order dated 01.02.2018 in Crl.A.No.1222/2016 on the file of LIX Addl. City Civil and Sessions Judge, Bengaluru (CCH-60) are hereby confirmed.

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NC: 2025:KHC:16743 CRL.RP No. 309 of 2018

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The Registry is directed to send back the trial Court as well as Sessions Court records along with copy of this order to the trial Court forthwith.

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Sd/(J.M.KHAZI) JUDGE

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RR,ASN List No.: 1 Sl No.: 49

Smt Rathnavathi v. M/S Sri Rajeshwari(Merchant) Finance

Case brief

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Smt Rathnavathi v. M/S Sri Rajeshwari(Merchant) Finance

Case brief

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