Sri N Byregowda Vs Smt Devarajamma

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NC: 2026:KHC:6403 CRL.RP No. 252 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF FEBRUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY CRIMINAL REVISION PETITION NO. 252 OF 2023

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BETWEEN:

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SRI. N.BYREGOWDA S/O LATE SRI.NANJUNDAIAH AGED ABOUT 67 YEARS RTD HEAD MASTER VEENA TEACHER'S EDUCATION SOCIETY KANNADA HIGHER PRIMARY SCHOOL KANTEERAVA NAGAR, BENGALURU-96.

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…PETITIONER

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(BY SRI. SAMPATH A., ADVOCATE)

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AND:

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Digitally signed by SHARADAVANI B

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Location: High Court of Karnataka

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SMT.DEVARAJAMMA W/O LATE K.CHELUVAIAH AGED ABOUT 75 YEARS R/A NO.181/2, 3RD MAIN HVR LAYOUT, MAGADI MAIN ROAD VIJAYANAGAR, BENGALURU-79.

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…RESPONDENT (BY SRI. LOKESH S.G., ADVOCATE)

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THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 15.11.2022 IN CRL.APPEAL NO.1584/2019 PASSED BY THE LEARNED LXIV ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-65) AT BENGALURU AND ETC.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2026:KHC:6403 CRL.RP No. 252 of 2023

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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The petitioner-accused is before this Court in this revision petition filed under Section 397 read with Section 401 of Cr.P.C. with a prayer to set aside the judgment of conviction and order on sentence dated 20.06.2019 passed in C.C.No.4947/2015 before the XIII Addl. Chief Metropolitan Magistrate, Bengaluru and the judgment and order dated 15.11.2022 passed in Crl.A.No.1584/2019 by the LXIV Addl. City Civil and Sessions Judge (CCH-65) at Bengaluru.

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Heard the learned counsel for the parties.

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Respondent-complainant herein had initiated proceedings against the petitioner-accused for offence punishable under Section 138 of Negotiable Instrument Act, 1881 (for short 'N.I.Act, 1881') in C.C.No.4947/2015. It is the specific case of the respondent-complainant that he had totally paid a sum of Rs.5,00,000/- to the petitioner-accused as hand loan on different dates and towards repayment of the amount borrowed, cheque in question bearing number 398977 dated 17.10.2014 drawn on Syndicate Bank, Rajajinagara, II Stage

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HC-KAR

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Branch, Bengaluru for a sum of Rs.5,00,000/- in favour of the respondent-complainant was issued by the petitioner-accused. The said cheque was dishonoured by the drawee Bank for the reason 'funds insufficient' in the bank account of the petitioneraccused. Thereafter, a legal notice was issued on behalf of the respondent-complainant to the petitioner-accused which was duly served and the petitioner-accused had issued a reply to the said legal notice. Since the petitioner-accused had not repaid the amount covered under the cheque in question, inspite of service of the statutory notice, the respondentcomplainant had initiated proceedings against petitioneraccused before the trial Court in C.C.No.4947/2015 for offence punishable under Section 138 of N.I.Act, 1881.

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In the said proceedings, after receipt of summons from the Court, the petitioner-accused had appeared before the Court and pleaded not guilty. Therefore, to substantiate his case, respondent-complainant had examined himself as PW.1 and got marked 12 documents as Exs.P1 to P12. On behalf of the defence, the petitioner-accused was examined as DW.1 and he got marked 6 documents as Exs.D1 to D6. The trial Court

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HC-KAR

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after hearing the arguments addressed on both sides, convicted the petitioner-accused for offence punishable under Section 138

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of N.I.Act, 1881 and sentenced him to pay fine of Rs.5,00,000/- and in default to undergo simple imprisonment for a period of 6 months. The said Judgment of Conviction and Order on Sentence passed in C.C.No.4947/2015 was confirmed in Crl.A.No.1584/2019 disposed of on 15.11.2022 by the LXIV Addl. City Civil and Sessions Judge (CCH-65) at Bengaluru. It is under these circumstances, petitioner-accused is before this Court.

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Learned counsel for the petitioner-accused submits that petitioner-accused has borrowed money from the respondent-complainant on 3 different dates and while borrowing the said amount, undisputedly he had executed loan agreements on a stamp paper in favour of the respondentcomplainant. Subsequently, petitioner-accused has repaid the amount borrowed and the stamp papers and the agreements executed by him in the stamp paper was returned which is produced and marked as Exs.D2 to D4. The trial Court as well as the Appellate Court have failed to appreciate the aforesaid

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NC: 2026:KHC:6403 CRL.RP No. 252 of 2023

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HC-KAR

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aspect of the matter and have erred in convicting the petitioner-accused for the alleged offence. Accordingly, he prays to allow the petition.

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Per contra, the learned counsel for the respondent-

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complainant has argued in support of the impugned judgment and order and prays to dismiss the petition.

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According to the respondent-complainant, petitioner-accused who is his acquaintance had borrowed totally a sum of Rs.5,00,000/- from him and had issued the cheque in question towards repayment of the said amount. The said cheque was dishonored by the drawee bank on the ground that funds were insufficient in the bank account of the petitioner-accused. Undisputedly, statutory legal notice issued to the petitioner-accused on behalf of the respondentcomplainant was served and a reply notice was also issued on behalf of the petitioner-accused. Since the amount covered under the cheque in question was not paid inspite of service of statutory legal notice, respondent-complainant has initiated proceedings against the petitioner-accused for offence punishable under Section 138 of N.I.Act, 1881.

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HC-KAR

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It is the specific defence of the petitioner-accused that the amount borrowed by him was repaid and the loan agreements executed in stamp papers were returned by the respondent-complainant. However, the cheque in question which was issued as a security to the loan borrowed was not returned after the loan was cleared and subsequently, the said cheque was misused by the respondent-complainant. The respondent-complainant was examined as PW.1 and he has stated that, on three different dates he had totally paid a sum of Rs.5,00,000/- to the petitioner-accused, who had executed loan agreements in stamp papers. During the course of crossexamination of PW.1, he has stated that when he had advanced

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loan for the third time to the petitioner-accused, he had received cheque from the petitioner-accused for total amount of Rs.5,00,000/- and also an agreement for the said amount, which he has produced at Ex.P.11. He has also stated that after receiving cheque-Ex.P1 for a sum of Rs.5,00,000/- and loan agreement-Ex.P11 also for a sum of Rs.5,00,000/- and earlier two loan agreements executed by the petitioner-accused in stamp paper were returned to the petitioner-accused. It appears that the said loan agreements have been produced by

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NC: 2026:KHC:6403 CRL.RP No. 252 of 2023

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HC-KAR

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the petitioner-accused before the trial Court as Exs.D2 to D4. Petitioner-accused has not disputed Ex.P11-loan agreement which is for a sum of Rs.5,00,000/-. He has also not disputed the fact that he has issued Ex.P1-cheque in favour of the respondent-complainant nor he has disputed the signature found in the said cheque. The cheque in question has been drawn on the bank account of the petitioner-accused maintained by him in Syndicate Bank, Rajajinagar II Stage branch, Bengaluru and the said cheque on presentation for realisation was dishonored. In view of the aforesaid as provided under Section 139 r/w Section 118 of N.I.Act, 1881, a presumption arises against the petitioner-accused that the cheque in question was issued by him towards discharge of legally recoverable debt. In the present case transaction between the petitioner-accused and the respondentcomplainant is not in dispute and the defence setup by the petitioner-accused should be probable and it is only then, the presumption that arises against him as aforesaid stands rebutted. In the present case, petitioner-accused has not put forward any probable defence and in addition to the same the defence set up by the petitioner-accused was not raised at the

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HC-KAR

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inception in the reply notice issued on his behalf. The trial Court as well as the Appellate Court having appreciated the aforesaid aspects of the matter have rightly convicted the petitioner-accused for the offence punishable under Section 138 of N.I.Act, 1881. Even the order of sentence passed by the Courts below cannot said to be excessive or disproportionate.

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Under these circumstances, I am of the opinion that, the impugned judgment and order of conviction and sentence passed by the Courts below requires no interference.

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Accordingly, this revision petition stands dismissed .

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The amount deposited by the petitioner-accused either before the Appellate Court or before the trial Court is permitted to be withdrawn by the respondent-complainant.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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GPG

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List No.: 1 Sl No.: 26

Sri N Byregowda v. Smt Devarajamma

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Sri N Byregowda v. Smt Devarajamma

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