Mr Mohammed Yakub Vs Mr Naveen Kambali — Cheque Dishonour | Karnataka HC (2026)

Mr Mohammed Yakub Vs Mr Naveen Kambali — Cheque Dishonour | Karnataka HC (2026)

What the court decided

AI extract

Outcome

No relief to the petitioner; the Criminal revision petition is dismissed. Amount if any deposited by the petitioner before this Court or the Courts below is permitted to be withdrawn by the respondent/complainant.

Issue for consideration

Whether the statutory legal notice issued to the petitioner was duly served, the notice having returned with postal shara 'unclaimed'. +3 more

Court's answer

The legal notice was issued to the correct address of the petitioner; the petitioner was served before the Trial Court at the very same address, and the same address appears in the cause titles of the criminal appeal and of this revision petition.

Ratio / Principle

Since the legal notice returned with postal shara 'unclaimed' despite being sent to the correct address, the Trial Court rightly held that the notice is deemed to have been served on the accused as provided under Section 27 of the Gender Clauses Act read with Section 114 of the Evidence Act.

Key takeaways

The petitioner's defence that the cheque was issued as a guarantee/security for a loan borrowed by one Ismail from the complainant was not probabilised; he produced no documentary evidence and did not even examine the said Ismail.ratio¶55
Signature on the cheque and the drawer account (Canara Bank, Valencia Branch) not being in dispute, presumption under Section 139 N.I.Act arose against the petitioner; he failed to rebut it, and the Trial Court and Appellate Court rightly so held — no illegality or irregularity in those findings.ratio¶60
The sentence is not on the higher side: the cheque was for Rs.2,50,000/- and the fine imposed by the Trial Court is likewise Rs.2,50,000/-.

Detailed headnote1 paragraphs

Criminal revision under S.397 r/w S.401 Cr.PC against conviction under S.138 N.I.Act (C.C.No.463/2017, 8th JMFC Mangaluru, dated 20.01.2020, confirmed in Crl.A.No.27/2020 on 03.02.2021): cheque for Rs.2,50,000/- (No.967462, dt.15.09.2016, Canara Bank Valencia Branch) dishonoured 'Funds Insufficient'; legal notice (Ex.P3) returned with postal shara 'unclaimed' but posted to the correct address — deemed service under S.27 of the Gender Clauses Act (as printed) r/w S.114 of the Evidence Act upheld; signature and drawer account not disputed, so presumption under S.139 N.I.Act arose and was not rebutted; plea that the cheque was guarantee for a loan taken by one Ismail not probabilised, Ismail not examined, no defence documents; fine of Rs.2,50,000/- equal to cheque amount not excessive; revision dismissed; deposits, if any, permitted to be withdrawn by the complainant.

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 6^TH DAY OF JANUARY, 2026

BEFORE

THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

CRIMINAL REVISION PETITION NO. 358 OF 2021

(397(Cr.PC) / 438(BNSS))

BETWEEN:

MR MOHAMMED YAKUB S/O USMAN, AGED ABOUT 40 YEARS, R/O ZEENATH BAKSHA, YATHEN KHAN APARTMENT, BUNDER D K DISTRICT MANGALURU- 575001

…PETITIONER

(BY SRI. H MALATESH., ADVOCATE)

AND:

Digitally signed by MR NAVEEN KAMBALI KAVYA R AGED ABOUT 44 YEARS, Location: High S/O NARAYAN KAMBALI, court of C/O GANESH MEDICAL, Karnataka KANKANADY MANGALURU- 575 002.

…RESPONDENT

(BY MS. POOJA PARVATHI.V, ADVOCATE FOR

SRI. G.RAVISHANKAR SHASTRY., ADVOCATE)

THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION

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DATED 20.01.2020 PASSED BY THE COURT OF THE J.M.F.C., VIII AT MANGALURU IN C.C.NO.463/2017., AND ETC.

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

ORAL ORDER

This Criminal revision petition under Section 397 read

with Section 401 of Cr.PC is filed assailing the judgment and order of conviction and sentence passed by the Court of 8^th JMFC at Mangalore in C.C.No.463/2017 dated 20.01.2020, confirmed in Criminal Appeal No.27/2020 dated 03.02.2021 by the Court of Principal District and Sessions Judge, D.K., Mangaluru.

Heard the learned counsel for the parties.

Respondent herein had initiated proceedings

against the petitioner for offence punishable under Section 138 of the Negotiable Instrument Act, 1881 (in short 'N.I.Act') in C.C.No.463/2017. It is the case of the respondent/complainant that petitioner had borrowed a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand

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only) and towards repayment of the said amount, he had issued cheque bearing No.967462 dated 15.09.2016 drawn on Canara Bank, Valencia Branch, Mangaluru, Dakshina Kannada District, in favour of the complainant and on presentation of the said cheque for realisation, the

same was dishonored by the drawee bank with an endorsement "Funds Insufficient". Thereafter, the complainant had complied the statutory requirements as provided under the N.I.Act by issuing a legal notice to the petitioner and since the petitioner had failed to pay the amount covered under the cheque-in-question, proceedings were initiated against him for offence punishable under Section 138 of N.I.Act in C.C.No.463/2017. The petitioner had appeared before the Trial Court and claimed to be tried. The complainant/respondent in support of his case had examined himself as PW.1 and got marked eight documents as Ex.P1 to Ex.P8. On behalf of the respondent/accused, he had examined himself as DW.1,

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but no documents were marked in support of his defence.

The Trial Court after hearing the arguments addressed on both sides vide judgment and order dated 20.01.2020 passed in C.C.No.463/2017 had convicted the petitioner for offence punishable under Section 138 of N.I.Act and sentenced petitioner to pay fine of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) and in default to undergo simple imprisonment for a period of six months. The said Judgment and order of conviction and sentence passed by the Trial Court has been upheld by the Appellate Court in Criminal Appeal No.27/2020 which was dismissed on 03.02.2021. It is under these circumstances, petitioner is before this Court.

Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that the legal notice issued to the petitioner on behalf of the respondent/complainant was not served. The Courts below have failed to appreciate this aspect of the matter. He submits that the petitioner had not borrowed any amount

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from the complainant and on the other hand the cheque-in-question was issued as a guarantee for the amount borrowed from the complainant by one Sri.Ismail.

Per contra, learned counsel for the respondent

has argued in support of the order's impugned.

Perusal of the material on record would go to show that complainant in support of his case has examined himself as PW.1 and has got marked 8 documents in support of this case. It is the case of the complainant that petitioner had borrowed a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) from him and towards repayment of the said amount the cheque-in-question was issued. The signature found in the cheque-in-question is not in dispute and it is also not in dispute that the cheque was drawn on the bank account which was maintained by the petitioner/accused at Canara Bank, Valencia Branch, Mangalore, Dakshina Kannada District. The said cheque was dishonoured by the drawee

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bank with an endorsement "Funds Insufficient". Copy of the cheque has been marked as Ex.P1 and the bank endorsement has been marked as Ex.P2. Ex.P3 is the copy of the legal notice issued on behalf of the complainant to the petitioner. The said legal notice had returned with a postal shara 'unclaimed'.

Perusal of the material on record would go to show that the notice was issued to the correct address of the petitioner. Petitioner was served before the Trial Court on the very same address and even in the cause title of the Criminal appeal as well as of this Criminal revision petition, the very same address has been mentioned by the petitioner. Since the legal notice had returned with the postal shara 'unclaimed', the Trial Court had rightly held the legal notice is deemed to have been served on the accused as provided under Section 27 of the Gender Clauses Act, read with Section 114 of the Evidence Act.

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Though the petitioner has taken a defence before

the Trial Court that the cheque-in-question was issued by him as a guarantee to the loan borrowed by one Ismail from the complaint, he has failed to probabilise the said defence by producing any documentary evidence. It is also necessary to note here that petitioner had not even examined the said Ismail, who allegedly had borrowed money from the complainant and the petitioner had issued the cheque-in-question as security for the loan allegedly borrowed by Ismail.

It is not in dispute that the cheque was drawn on

the bank account of the petitioner maintained by him at Canara Bank, Valencia Branch, Mangaluru, Dakshina Kannada District and it is also not in dispute that the signature found in the cheque belonging to the petitioner. Therefore, presumption arises as against the petitioner as provided under Section 139 of N.I.Act. Unless the petitioner rebuts this presumption by putting forward a probable defence he is liable to be convicted for the

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offence punishable under Section 138 of N.I.Act. The Trial Court as well as the Appellate Court having appreciated the oral and documentary evidence placed on record have rightly held that petitioner has failed to rebut the presumption that arose against him under Section 139 of the N.I.Act. I do not find any illegality or irregularity in the said findings recorded by the Courts below.

The cheque-in-question has been issued by the petitioner towards repayment of the amount borrowed by him from the respondent. The cheque was issued for a sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand) and the Trial Court has sentenced the petitioner to pay a fine a Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand). Therefore, it cannot be said that the sentence imposed on the petitioner is on the higher side. Under the circumstances, I do not find any good ground to entertain this Criminal revision petition. Accordingly, this Criminal revision petition is dismissed.

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Amount if any deposited by the petitioner either

before this Court or before the Courts below, is permitted

to be withdrawn by the respondent/complainant.

Sd/(S VISHWAJITH SHETTY)

JUDGE

KVR List No.: 1 Sl No.: 37