Harhsa B S Vs Krishnamurthy v

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1 - NC: 2025:KHC:41301 CRL.RP No. 704 of 2022

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF OCTOBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 704 OF 2022

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BETWEEN:

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HARHSA B S., S/O BHARATHEESH, AGED ABOUT 40 YEARS, R/AT NO.97 'SHISHIRA' 5^TH CROSS, NEAR HAPPY LEARNING MONTESSORI ANDANAPPA CIRCLE, THOTADA GUDDADA HALLI, NAGASANDRA POST, BENGALURU - 560 073.

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…PETITIONER

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(BY SRI M.SHASHIDHARA, ADVOCATE)

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AND:

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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KRISHNAMURTHY V., S/O VEERAKYATHAIAH, AGED ABOUT 43 YEARS, R/AT NO.11, 3^RD FLOOR, 23^RD CROSS, PIPELINE ROAD BHUVANESHWARI NAGAR, T.DASARAHALLI, BENGALURU - 560 057.

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…RESPONDENT

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(BY SRI MANJULA D.G., ADVOCATE)

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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 THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT OF CONVICTION PASSED BY THE HONBLE LX ADDL. CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU CITY DATED 12.04.2022 IN CRIMINAL APPEAL NO.1888/2019 BY

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2 - NC: 2025:KHC:41301 CRL.RP No. 704 of 2022

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HC-KAR

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CONFIRMING THE JUDGMENT OF CONVICTION PASSED BY THE TRIAL COURT DATED 03.08.2019 IN CC NO.10066/2018 PASSED BY THE HONBLE XX ADDL. CMM AT BENGALURU BY ACQUITTING THE PETITIONER.

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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 12.04.2022 passed by LX Addl. City Civil & Sessions Judge, Bengaluru, (CCH-61) in Crl.A.no.1888/2019 confirming judgment of conviction and order of sentence dated 03.08.2019 passed by XX Addl. Chief Metropolitan Magistrate, Bengaluru City, in C.C.no.10066/2018, this revision petition is filed.

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Sri M Shashidhara, learned counsel for petitioner submitted, petitioner (accused) is challenging concurrent judgment of conviction and sentence for offence punishable under Section 138 of Negotiable Instruments Act, 1881 ('NI Act' for short). It was submitted, on allegation by respondent (complainant) that accused was known to him and in June 2017, when he demanded for hand-loan of Rs.1,47,200/- from complainant for clearing debts and improvement of his

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business, complainant had lent said amount. At that time accused had agreed to repay same within six months and issued posted-dated cheque no.000013, dated 10.12.2017 for Rs.1,47,200/- drawn on M/s Andhara Bank, T. Dasarahalli, Bengaluru. It was further alleged that when said cheque was presented for collection through his banker M/s The Karnataka State Co-operative Apex Bank Ltd. (AXB), Bengaluru, it returned with endorsement 'funds insufficient' on 12.12.2017. After intimation of same, accused asked complainant to represent cheque on 09.02.2018. But, it returned with endorsement as 'Funds insufficient' on 13.02.2018 also. Thereafter complainant got issued legal notice on 12.03.2018 and same was served. Despite its service, accused neither complied with demand nor replied to said notice, thereby committed offence under Section 138 of NI Act.

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On issuance of summons and on appearance, accused pleaded not guilty and sought to be tried. Thereafter complainant examined himself as PW.1 and got marked Exs.P1 to P.6. Statement of accused was recorded under Section 313 Cr.P.C. and accused denied evidence as false and not led any

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NC: 2025:KHC:41301 CRL.RP No. 704 of 2022

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rebuttal evidence. It was submitted, though accused had taken substantial defence in cross-examination of complainant, to effect that there was no enforceable debt between complainant and accused, as cheque in question was given to Maruti Finance Company from whom complainant had assured financial assistance, but Finance Company had not extended any loan to accused. By misusing said cheque, complaint was filed. Further, in cross-examination PW1 admitted, he was running a Finance Company. But, complaint in individual capacity, would not be tenable.

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It was submitted, as per complainant amount lent was Rs.1,47,200/- which was an odd amount. It is unlike normally a round figure is lent/borrowed. Same would some doubt about complainant's case. It was further submitted neither in demand notice or complaint, complainant had mentioned date and place of issuance of cheque. Same would also cast doubt about complainant's version. It was submitted, accused had admitted only signature on cheque and other writings were not in his handwriting and apparently filled up by

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complainant to suit his own interest. Therefore acquittal would be sustained.

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Relying upon decision of Hon'ble Supreme Court in Dasan s/o Kuttan v. Sulaikha w/o Hamsa & Ors. reported in 2018 (2) DCR 233 (Ker), it was submitted High Court had observed that it was unbelievable for a person, who was running financial institution would lend Rs.1,00,000/- without collecting any security. It was submitted, in instant case also complainant's version that money was lent without any interest when accused was neither his relative nor friend would also cast doubt. It was submitted, above grounds probablized defence of accused and would be sufficient to upset presumption in favour of complainant. Such being case, judgment of trial Court convicting accused would not be sustainable. Even first appellate Court failed to appreciate facts and circumstances without proper perspective and erred in confirming order of conviction. On said ground sought for allowing revision petition.

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Heard learned counsel and perused material on

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record.

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HC-KAR

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At outset, revision is against concurrent findings of Courts convicting accused. Bare perusal of impugned judgment would indicate that both Courts have on independent assessment of entire material on record, arrived at conclusion by giving detailed reasons. Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander & Anr. reported in (2012) 9 SCC 460, held interference with concurrent order of conviction in revision petition would be confined to findings suffering from perversity or being contrary to provisions of law.

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Insofar as first contention that there was no legal enforceable debt and except production of Ex.P.1 - cheque complainant had not produced any other material to substantiate that amount was lent to accuse, it is seen that defence set up by accused before trial Court was that cheque was issued to Marauti Finance Company when complainant had assured financial assistance to accused from said Company. To substantiate said defence, however accused had not led any evidence. He seeks to rely upon admission by PW1-complainant that he was running a financial Institution. Admission about signature on cheque would invite presumption that it was

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issued towards discharge of legally enforceable debt. Said presumption is rebuttable. Mere admission of PW1 that he was running financial institution would not by itself lead to conclusion that money lent was by financial institution. To Court query about nature of Finance Company, whether as proprietorship, partnership or registered Company, learned counsel for petitioner stated it was proprietorship concern. If it were so, filing of complaint by complainant in his individual capacity would not be contrary to law. Moreover, there is no material to establish that transaction was between Finance Company and accused.

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Insofar as contention that amount let was an odd amount instead of round figure, Courts have time and again held that every small inconsistency or reason for a doubt cannot upset presumption available under provisions of NI Act. There is no bar in law for borrowing odd amount.

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Next contention that admission by complainant about leading lending without charging interest, there is sufficient explanation by complainant that accused had earlier worked as his driver. Insofar as non-mentioning of date and

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place of issuance of cheque in demand notice and complaint, in his deposition PW1 had stated that cheque was issued on 01.12.2017. Mere non-mentioning of same in complaint would not cast any serious doubt.

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In Dasan 's case (supra), High Court of Kerala was considering appeal against order of acquittal, which was on two grounds. First that there was grave inconsistency in deposition of PW1 about person to whom amount was paid and secondly that it was unbelievable for financial institution to lend money without collecting any security. High Court discounted both grounds and confirmed judgment passed by trial Court. Therefore, decision cannot be stated to be lending ratio, as claimed.

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There is no dispute about issuance of cheque, its presentation and being returned as dishonoured, issuance of demand notice, its service on accused, filing of complaint being within time frame as mandated and as noted judgments of trial Court and first appellant Court are based on reference to entire material on record and by assigning reasons. There were

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