Sri. B. Nagaraja Vs Sri. Gandhi. R

THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C., PRAYING TO SET ASIDE CONFIRMED ORDER, DATED 01.04.2023 IN CRL.A.NO.101/2022, PASSED BY COURT OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-I, AT SHIVAMOGGA AND CONVICTION ORDER, DATED 13.07.2022 PASSED BY COURT OF IV ADDITIONAL CIVIL JUDGE AND JMFC AT SHIVAMOGGA IN C.C.NO.4490/2017 FOR THE OFFENCES P/U/S 138 OF N.I. ACT AND ALLOW ABOVE CRIMINAL REVISION PETITION.

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NC: 2025:KHC:52295 CRL.RP No. 678 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 concurrent, erroneous judgment dated 01.04.2023 passed by Additional District and Sessions Judge, FTSC-I, Shivamogga, in Crl.A.no.101/2022 confirming judgment dated 13.07.2022 passed by IV Additional Civil Judge and JMFC, Shivamogga, in C.C.no.4490/2017, this revision petition is filed.

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Sri KV Sateeshchandra, learned counsel for petitioner submitted that this revision petition is against concurrent findings convicting petitioner (accused) for offence punishable under Section 138 of Negotiable Instruments Act, 1881 ('NI Act' for short).

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It was submitted, proceedings were initiated in pursuance of private complaint filed by respondent (complainant) under Section 200 of Code of Criminal Procedure, 1978 ('CrPC' for short) alleging that complainant and accused were in cordial terms for several years, accused

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NC: 2025:KHC:52295 CRL.RP No. 678 of 2023

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HC-KAR

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would borrow amount for his requirements and on 21.08.2016, accused borrowed Rs.1,75,000/- in cash agreeing to repay it within 11 months. But, failed to repay it within time and on demand, issued cheque bearing no.076025 dated 13.07.2017 for Rs.1,75,000/- drawn on Lakshmi Vilas Bank, which when presented for collection, returned dishonored with endorsement 'account blocked' and thereafter, even when demand notice dated 14.08.2017 got issued by complainant was served on accused on 16.08.2017, he failed to repay amount within time stipulated and thereby committed offence punishable under Section 138 of NI Act.

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It was submitted, on appearance, accused denied charges and sought trial. Thereafter, complainant examined himself as PW.1 and got marked Exhibits P1 to P5. Thereafter, incriminating material was explained to accused and which were denied and his statement under Section 313 of CrPC was recorded. It was submitted, on explaining incriminating material, accused stated that he had borrowed Rs.50,000/- and paid Rs.30,000/- and for non repayment of balance of Rs.20,000/-, complainant had retained cheque and even after said amount was repaid, complainant had not returned cheque.

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NC: 2025:KHC:52295 CRL.RP No. 678 of 2023

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HC-KAR

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Subsequently, accused deposed as DW.1 and also examined one witness as DW.2 but did not get marked any documents.

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It was submitted, accused had substantiated defence, firstly contending that cheque in question was issued as security for earlier borrowal of Rs.50,000/- which was repaid in two installments i.e., Rs.30,000/- and Rs.20,000/- but cheque was not returned and misused by complainant for present proceedings and as well as denying financial capacity of complainant to lend said amount. Apart from above, it was submitted, complainant was unable to state particulars of date when accused had approached him for lending money which cast doubt about lending and probablized defence. It was further contended that dishonor of cheque on ground of 'account blocked as dormant' would not attract Section 138 of NI Act and submitted that both Courts failed to appreciate above factors and erroneously convicted accused and as such, they suffered from perversity and called for interference. On above grounds, sought for allowing revision petition.

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On other hand, Sri D Basavarajappa, learned counsel for complainant opposed revision petition. It was

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HC-KAR

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submitted, as accused failed to upset presumption, trial Court was justified in passing impugned judgment and sentence and did not suffer from perversity as would call for interference. On said grounds, sought for dismissal.

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Heard learned counsel and perused impugned judgment and record.

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From above, it is seen that revision petition is by accused challenging concurrent judgment convicting her for offence punishable under Section 138 of NI Act. Challenge is mainly on ground of perversity of findings insofar as issuance of Ex.P1 - cheque towards discharge of legally enforceable debt and about financial capacity of complainant to lend money as well as on ground that Section 138 of NI Act would not be attracted when dishonor of cheque was on ground of 'account blocked'.

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While passing impugned judgment, trial Court observed that complainant had deposed in terms of complaint and got marked cheque as Ex.P1. Bank Endorsement as Ex.P2, demand notice as Ex.P3 and postal receipt and acknowledgment as Exs.P4 and P5. In cross-examination of

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HC-KAR

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PW.1, defence is set up that cheque given as security for earlier borrowal was misused. Very contention would admit signature

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of accused on cheque and its issuance to complainant.

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Though it is contended, amount borrowed earlier was Rs.50,000/- and same was repaid, except bare suggestion about complainant himself filling up particulars in cheque, there is no efforts for establishing that writing on cheque was not by accused himself or was without his consent. Therefore, trial Court rightly extended benefit of presumption under Section 139 of NI Act in favour of complainant. Indeed, said presumption is rebuttable by setting up probable defence. In cross-examination, asking except about date on which accused requested complainant to lend money, which was stated to be on 21.08.2016, when accused had come to his house, there is no material elicitation. Even admission that said date is not mentioned in complaint or in demand notice, non-mentioning of date on which accused had approached complainant with request for loan would not be a material omission. Relevant date would be actual date of lending. There is no crossexamination on said aspect and nothing contradictory to complainant's submission is elicited.

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HC-KAR

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Though contention denying issuance of Ex.P1 - cheque was towards any legally enforceable debt is taken, there are suggestion made about borrowal being limited to Rs.50,000/- and repayment of Rs.30,000/- and Rs.20,000/which are denied. This suggestion would dilute said defence. In absence of any specific material, both Courts have rightly concluded that accused failed to upset presumption in favour of complainant.

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Insofar as contention that dishonor of cheque on ground of 'account blocked as dormant' not attracting Section 138 of NI Act, it is seen, Hon'ble Supreme Court in Challani Rank Jewellery and Others v. Ashok Kumar Jain reported in 2024 SCC OnLine Mad 5624 and Sheikh Owais Tariq v.

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Satvir Singh reported in 2024 SCC OnLine J&K 727 , examined circumstances which would be covered to constitute offence punishable under Section 138 of NI Act, based on reasoning that issuance of cheque is with a promise that it would be honored on presentation and if for any reason, cheque is not honored, opportunity is contemplated by law to drawer of cheque to rectify same on receipt of demand notice.

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HC-KAR

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In instant case, Exs.P3 to P5 would indicate that demand notice was issued and duly served on accused. Admittedly, there is no reply. Only explanation offered is about borrowal of Rs.50,000/- and repayment of Rs.30,000/-. It is claimed that since remaining Rs.20,000/- was not repaid, cheque was retained, there is no explanation for failure of accused to issue legal notice or such any legal action for return of cheque. However, said contention would run counter to his stand in cross-examination of PW.1 and his deposition. Thus conviction of accused by trial Court would be on appreciation of material on record.

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In appeal, Appellate Court, after re-appreciation of material on record, concurred with findings of trial Court and dismissed appeal. Thus, it is seen that findings recorded by both courts are by assigning specific reasons. Hence, no ground is made out for interference.

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Revision petition is dismissed .

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Sd/(RAVI V HOSMANI) JUDGE

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AV

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List No.: 1 Sl No.: 29

Sri. B. Nagaraja v. Sri. Gandhi. R

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Sri. B. Nagaraja v. Sri. Gandhi. R

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