Smt. Vanajakshi P Vs Sri. S M Devaraju — Cheque Dishonour | Karnataka HC (2025)

Smt. Vanajakshi P Vs Sri. S M Devaraju — Cheque Dishonour | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether both the Courts below committed an error in accepting the complainant's case that he lent the money, and whether the matter requires interference by this Court in exercise of its revisional jurisdiction. +1 more

Court's answer

The defence that the two cheques were given as security for a loan allegedly availed by the complainant for construction of a house is not substantiated: no document of loan, collateral security or suretyship was placed on record, and hence no probable defence was made out although the accused examined herself as DW1.

Ratio / Principle

On financial capacity, the complainant's un-rebutted evidence that he owns four acres of land at Siddapura, Madhugiri, and the accused's admission regarding his avocation (supplier/cashier), suffice; absence of RTC extracts does not assist the accused, and therefore the D Siddappa precedent is not applicable to the facts of this case.

Key takeaways

Since the accused established no probable defence or preponderance of probabilities, the occasion for the onus to shift back to the complainant to prove financial capacity (as discussed in APS Forex Services) did not arise, and the presumption under Section 139 of the NI Act could be drawn; that judgment therefore does not come to the aid of the accused.ratio¶18
Revisional jurisdiction can be entertained only where perversity is found in the appreciation of oral and documentary evidence; no perversity was found in the concurrent findings of the Trial Court and the First Appellate Court in convicting and sentencing the petitioner.ratio¶19

Detailed headnote1 paragraphs

Criminal Revision Petitions (S.397 r/w S.401 CrPC) against concurrent convictions under Section 138 of the NI Act in C.C.Nos.4356/2016 and 4357/2016, affirmed in appeal by the II Additional District and Sessions Judge, Tumakuru, in Crl.A.Nos.41/2021 and 46/2021 — accused, a Government school teacher and sister-in-law of the complainant, did not dispute the cheques of Rs.5,00,000/- each or her signatures thereon; cheques dishonoured with endorsement 'Account Closed'; defence that the cheques were handed over as security/collateral for a loan allegedly availed by the complainant not substantiated by any document and no probable defence made out; objection as to the complainant's financial capacity rejected, his evidence of four acres of agricultural land at Siddapura, Madhugiri and his avocation standing unrebutted despite absence of RTC; precedents in D Siddappa (2024(2) KCCR SN 139) and APS Forex Services ((2020) 12 SCC 724) held not applicable; in the absence of preponderance of probabilities in favour of the accused, presumption under Section 139 NI Act operates; no perversity in the concurrent findings; revisions dismissed (H.P. Sandesh J.).

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 4^TH DAY OF MARCH, 2025

BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

CRIMINAL REVISION PETITION NO.318/2022 C/W. CRIMINAL REVISION PETITION NO.319/2022

IN CRIMINAL REVISION PETITION NO.318/2022:

BETWEEN:

SMT. VANAJAKSHI P., W/O SHIVAKUMAR M.S., AGED ABOUT 52 YEARS R/AT SLNT CLASS TEACHER BHOVIPALYA NEW EXTENSION OORUKERE, TUMAKURU -572106. … PETITIONER

(BY SRI K. SRINIVASA, ADVOCATE)

AND:

SRI. S.M. DEVARAJU S/O LATE MALLAIAH AGED ABOUT 61 YEARS R/AT NO.53, (LIG), KHB COLONY TUMAKURU TOWN-572 101. … RESPONDENT

(BY SRI M.B.RYAKHA, ADVOCATE)

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE

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JUDGMENT AND ORDER DATED 31.01.2022 IN CRL.A.NO.46/2021 PASSED BY THE HON’BLE II ADDITIONAL DISTRICT AND SESSIONS JUDE AT TUMAKURU AND THE ORDER DATED 30.09.2021 IN C.C.NO.4357/2016 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC AT TUMAKURU AND ACQUIT THE PETITIONER AND ETC.

IN CRIMINAL REVISION PETITION NO.319/2022:

BETWEEN:

SMT. VANAJAKSHI P., W/O SHIVAKUMAR M.S., AGED ABOUT 52 YEARS R/AT SLNT CLASS TEACHER BHOVIPALYA NEW EXTENSION OORUKERE, TUMAKURU-572106. … PETITIONER

(BY SRI. K. SRINIVASA, ADVOCATE) AND:

SRI. S.M.DEVARAJU S/O LATE MALLAIAH AGED ABOUT 61 YEARS R/AT NO.53, (LIG) KHB COLONY TUMAKURU-572101. … RESPONDENT

(BY SRI. M.B.RYAKHA, ADVOCATE)

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 31.01.2022 IN CRL.A.NO.41/2021 PASSED BY THE HON’BLE II ADDITIONAL DISTRICT AND SESSIONS JUDE AT TUMAKURU AND THE ORDER DATED 30.09.2021 IN C.C.NO.4356/2016 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC AT TUMAKURU AND ACQUIT THE PETITIONER AND ETC.

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THESE CRIMINAL REVISION PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 12.02.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

CAV ORDER

The Crl.R.P.Nos.318/2022 and 319/2022 are filed

challenging the judgment and order dated 31.01.2022 passed in Crl.A.Nos.46/2021 and 41/2021 respectively by the First Appellate Court and the judgment and order dated 30.09.2021 passed in C.C.Nos.4357/2016 and 4356/2016 respectively by the Trial Court.

Heard the learned counsel appearing for the respective parties.

The complainant and the accused are one and the same in both the revision petitions and though independent judgments are delivered by the Trial Court as well as the First Appellate Court, the issue involved between the parties is one and the same and defence is also one and the same. Hence, both the revision petitions are taken up together for consideration while exercising the revisional jurisdiction.

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The factual matrix of the case of the complainant in C.C.Nos.4357/2016 and 4356/2016 are that the accused being

the very close relative of the complainant family and to the complainant, had borrowed a hand loan of Rs.5,00,000/- in each case from the complainant for her legal necessities, domestic purposes and also for construction of the house in the month of November and December 2014 agreeing to repay the said amount in the month of February 2016 and in this connection, accused has issued a post dated Cheque bearing No.537598 dated 22.02.2016 and Cheque bearing No.002936 dated 24.02.2016 for Rs.5,00,000/- in respective case and assured the complainant to present the said Cheques in the month of February 2016. Accordingly, the complainant presented the said cheques and the same were dishonoured with an endorsement ‘Account Closed’ and hence, the complainant issued the legal notice to the accused and same was served on her. Inspite of service of notice, the accused failed to repay the amount as well as replied to the said notice. Hence, the complainant lodged the complaint against the accused under Section 138 of NI Act before the Court and the Court has taken the cognizance in both

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the matters and secured the accused and accused did not plead guilty and hence, trial was conducted.

In order to prove the case of the complainant, he

himself examined as PW1 and got marked the documents at Ex.P1 to P5. On the other hand, accused examined herself as DW1 but not produced any documents. The Trial Court considering the material on record observed that the accused admitted the issuance of Cheques and defence was set out that those cheques were given as security to the loan obtained by the complainant for the construction of the house and the complainant misused the said cheques. The accused contend that the complainant is not having any source of income to lend

the money of Rs.5,00,000/- in each case and the said defence of the accused was not accepted by the Trial Court in coming to the conclusion that there was no any plausible evidence and allowed the complaint and convicted the accused for the offence punishable under Section 138 of NI Act and sentenced to pay fine of Rs.7,00,000/- in each case, in default, accused shall undergo simple imprisonment for a period of six months.

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Being aggrieved by the judgment of conviction and

sentence, accused preferred separate appeals before the First Appellate Court in Crl.A.Nos.46/2021 and 41/2021 and the First Appellate Court on re-appreciation of both oral and documentary evidence placed on record accepted the reasons given by the Trial Court and also relied upon the judgments reported in (2009) 2 SCC 513 in the case of KUMAR EXPORTS vs SHARMA CARPETS, AIR 2019 SC 1983 in the case of BASALINGAPPA vs MUDIBASAPPA, (2019) 4 SCC 197 in the case of BIR SINGH vs MUKESH KUMAR and so also in 2021 SCC ONLINE SC 75 in the case of M/S KALAMANI TEX AND ANOTHER vs B BALASUBRAMANIAN and comes to the

conclusion that there is no any preponderance of probabilities in favour of accused since she admitted the issuance of Cheques and also admitted that her husband has handed over the two cheques to the complainant for the purpose of availing loan by him but no document is produced to prove the said fact. In the cross-examination, accused admitted that she has not affixed her signature as collateral security to the loan availed by the complainant and hence, confirmed the judgment of the Trial

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Court. Being aggrieved by the concurrent finding of both the Courts, the present revision petitions are filed by the accused before this Court.

In these revision petitions, the learned counsel for the petitioner would vehemently contend that there was no monetary transaction between the parties and no point of time, the petitioner has borrowed a sum of Rs.5,00,000/- in each case from the respondent or she had issued a alleged cheques to the respondent for discharging of the said loan amount. The respondent has no financial capacity to lend the loan of Rs.5,00,000/- in each case and the respondent has not placed any evidence to establish existence of any debt and that the cheques in question were issued for discharge of the said debt and also contend that the complainant failed to produce his passbook or any other document to show that as on relevant day, he had that much of amount to lend the same to accused and hence, presumption drawn in favour of the complainant is erroneous. The counsel further contends that the complainant had misused the alleged cheques which were issued towards

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security and the same is not enforceable debt and hence, both the Courts committed an error. The counsel contend that the complainant says that he was a cashier, but no document is produced to establish the said fact but, the complainant admits that he was working as a supplier and getting the salary of Rs.25,000/-, but no document is produced in this regard as well. The complainant is the brother-in-law of the revision petitioner and the counsel contend that both the Courts committed an error in not considering the fact regarding financial capacity.

The learned counsel for the petitioner in support of his arguments relied upon the judgment reported in 2024(2) KCCR SN 139 in the case of D SIDDAPPA vs G ONKARAPPA wherein it is held that the complainant said to be working as a teacher in a private school and also owning agricultural land, but failed to prove his avocation and also income from lands, failed to produce RTC extracts in this behalf and hence, judgment of conviction set aside.

The counsel also relied upon the judgment reported in (2020) 12 SCC 724 in the case of APS FOREX SERVICES

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PRIVATE LIMITED vs SHAKTI INTERNATIONAL FASHION

LINKERS AND OTHERS and brought to notice of this Court paragraph 8 of the judgment wherein discussion was made that whenever accused raises issue of financial capacity of complainant in support of his probable defence, despite presumption in favour of complainant regarding legally enforceable debt under Section 139, onus shifts again on complainant to prove his financial capacity by leading evidence, more particularly when it is case of giving loan by cash and thereafter issuance of Cheque.

Per contra, the learned counsel appearing for the respondent would vehemently contend that both the Courts have appreciated both oral and documentary evidence placed on record in a proper perspective and regarding source of income is concerned, the accused already admitted that the respondent was working as a supplier but the complainant contends that he was working as a cashier and earning Rs.25,000/- per month as well as he used to get Rs.1,000/- everyday as an additional amount and apart from that he owns an agricultural land to the

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extent of four acres and same is elicited and also his case that he was earning Rs.60,000/- to 70,000/- as agricultural income and the learned counsel for the respondent contend that judgments which have been relied upon by the counsel for the petitioner not applicable to the facts of the case on hand but the fact that he owns a land and same has not been denied.

Having heard the learned counsel appearing for the

respective parties and also on perusal of the material on record, the point that would arise for consideration of this Court are:

Whether both the Courts committed an error in accepting the case of the complainant that he has lent the money and whether it requires interference of this Court by exercising the revisional jurisdiction?

What order?

Point No.1:

Having heard the learned counsel appearing for the

respective parties and also on perusal of the material on record, in the complaint it is averred that the accused was in need of

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money and borrowed hand loan of Rs.5,00,000/- in each case from the complainant for her legal necessities and also for construction of the house in the month of November and December 2014 agreeing to repay the same in the month of February 2016 and issued post dated cheques and when the said cheques were presented, the same were dishonoured with an endorsement ‘account closed’ and hence, legal notice was issued to the accused and same was served but reply was not given. In order to prove the case of the complainant, he examined himself as PW1 and also got marked the documents and reiterated the complaint averments. In the cross-examination, it is elicited that accused is his brother’s wife and she is working as a school teacher and getting salary of Rs.56,000/- per month and his brother is also working as a driver in KSRTC. It is elicited that firstly, the complainant gave an amount of Rs.5,00,000/- and thereafter, accused demanded to pay additional amount since she is having more financial commitments and again he gave the money of further amount of Rs.5,00,000/- and he says that amount was given in the month of February. It is suggested that the complainant was not having any source to pay that

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much of amount and same was denied. It is suggested that the complainant was working as a supplier and same was denied but he claims that he is working as a cashier and also he used to get Rs.1,000/- as an additional amount and also get the profit from sale of water bottles and the same was given to him by the owner, but no documents are produced to establish the said fact. It is elicited that he was not an income tax assessee, however, he categorically says that he was having four acres of land at Siddapura of Madhugiri and he used to grow paddy, ragi, groundnut and coconut trees and getting the income of Rs.60,000/- to 70,000/- and his brother is taking care of the land. In the cross-examination not denied the evidence of PW1 that he was not having any land. It is also admitted that Ex.P5 is with regard to service of notice. It is suggested that the cheques are taken for security and same were misused and same was denied.

Accused also examined in both the cases and set out

the same defence in both the cases. He was also subjected for cross-examination. In the cross-examination, she admits that

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she is a Government school teacher and also admits that while getting the loan by the complainant, she had not signed any collateral security document and also admits that she has not produced any document to show that the complainant had availed the loan. However, she admits her signature in both the cheques, but only denied the handwriting in the said cheques. Also admits that her husband is also a Government employee and not given any complaint with regard to misuse of the cheques by the complainant which were given to him. It is suggested that number of cases are filed against her and the same was objected by the counsel, but the Court allowed to put the question and earlier not ready to give answer and later, she admitted that there were two to three cases filed against her.

Having considered the grounds which have been

urged in the revision petition as well as the arguments of the respective counsel and also on perusal of the material on record, this Court has to examine whether there is any perversity in the finding of the Trial Court. Having perused the material on record, it discloses that no dispute that Cheques were belongs to the

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revision petitioner and signature on the said cheques also not in dispute. Her contention is that those two cheques were given as security for the purpose of availing loan by the complainant for construction of the house. In order to prove the fact that the complainant had taken loan for the work of construction of house, no document is placed. Apart from that though it is contended that those two cheques are given as security, no document is placed before the Court to show that the complainant had availed loan for construction of the house and also this petitioner stood as surety and signed any collateral document. Hence, the very first defence that cheques were given to avail the loan to the complainant is not substantiated and no probable defence before the Court though examined as DW1. The accused also not placed any documentary proof with regard to substantiate the defence.

Apart from that other contention is taken before the Court is that the complainant was not having any source to lend so much of amount. But the fact is that he is working in the hotel is not in dispute and suggestion was made that he was a

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supplier but he claims that he is a cashier and getting other income and in addition to that his contention is that he is having agricultural income. To that effect also though cross-examination was made by the counsel for the accused, the complainant gave the evidence that he is having land at Siddapura to the extent of four acres and growing paddy, ragi, groundnut and also having coconut trees and getting income of Rs.60,000/- to 70,000/-, same was not denied in the cross-examination when PW1 answered the same and he claims that he gave the document to show his income and denied that no such document is produced. On perusal of the records, it discloses that no document is produced.

The very case of the complainant that he is having four acres of land and the said fact is not denied by the accused except stating that the complainant was not having any income to lend that much of amount. With regard to the fact of avocation, accused himself admitted that the complainant was working as a supplier in a hotel but the complainant claims that he was working as a cashier. The judgment which has been

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relied upon by the counsel for the petitioner in the case of D.SIDDAPPA referred supra it is held that complainant said to be working as a teacher in a private school and also owning agricultural land, but failed to prove his avocation and also income from lands and also not produced RTC extracts in this behalf and this judgment is not applicable to the facts of the case on hand since with regard to avocation is concerned, accused admitted that the complainant is working as a supplier but complainant claims that he is a cashier and hence, avocation is proved as the complainant may be a supplier or a cashier. With regard to the agricultural income is concerned, though not produced RTC, PW1 given answer that he is having four acres of land at Siddapura, Madhugiri and the same has not been denied. Even in the absence of RTC also, when the evidence of complainant has not been denied, the said judgment is not applicable to the facts of the case on hand.

No doubt, the counsel for the petitioner also relied the judgment with regard to financial capacity is concerned in the case of APX FOREX SERVICES PRIVATE LIMITED

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referred supra, wherein the Apex Court held regarding financial capacity is concerned, in support of his probable defence, accused has placed any material despite presumption in favour of complainant regarding legally enforceable debt under Section 139, onus shifts again on complainant to prove his financial capacity by leading evidence, more particularly when it is case of giving loan by cash and thereafter issuance of Cheque. But in the case on hand, no dispute that hand loan was given but there is no probable defence. The very case of the petitioner is that she gave the Cheques in order to get the loan from the bank by the complainant, but no document of collateral security was executed by the complainant in this regard. Apart from that the contention of the accused that the complainant had constructed a house, no document is placed in this regard. In addition to that, the complainant had not availed the loan from the bank also, no document is placed to prove the same and hence, no probable defence is placed before the Court. Unless preponderance of probabilities is proved before the Court, the question of once again rebutting the same does not arise. Hence, burden shifts on the complainant to prove does not arise

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and presumption could be drawn under Section 139 of NI Act in

the absence of any probable defence or preponderance of probabilities. Hence, this judgment also not comes to the aid of the accused.

Having considered the reasons given by the Trial Court as well as the First Appellate Court and also considering both oral and documentary evidence placed on record, it is emerged that the revision petitioner is a Government school teacher and also the relationship between the parties is sister-inlaw and brother-in-law and the case of the complainant is that the petitioner was under financial constrains and the same is admitted in the cross-examination and also admitted that there

are other cases against her. Though an attempt was made to conceal the same, ultimately, she has admitted the same that two to three cases were pending against her and so also not disputes the issuance of Cheques. Though specific defence was taken that those cheques were given as security in order to help the complainant to avail the loan, to substantiate her defence that the complainant had availed the loan and she stood as

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surety and given the documents as security, nothing is placed on record. When the said defence was taken, burden is on the revision petitioner to prove the same. In the case on hand, no probable defence is placed on record and preponderance of probabilities also not in favour of this petitioner. Hence, I do not find any error committed by the Trial Court as well as the First Appellate Court in convicting and sentencing this petitioner. This Court can entertain the revision jurisdiction only if any perversity is found in appreciating both oral and documentary evidence placed on record and in the case on hand, no such circumstances is warranted. Hence, I answer the above point as negative.

Point No.2:

In view of discussion made above, I pass the

following:

ORDER

The revision petitions are dismissed.

Sd/- (H.P. SANDESH) JUDGE

SN