H. H. Gowrish Vs Paramesha

H. H. GOWRISH S/O HARISHA, AGED ABOUT 44 YEARS, RESIDING AT BEHIND H.B. PETROL BUNK, FARM HOUSE, THITHAMATHI VILLAGE & POST, KASABA HOBLI, VIRAJPET TALUK, KODAGU DISTRICT, PIN CODE - 571 254.

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…PETITIONER

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(SRI. S.N.MAHESH, AMICUS CURIAE)

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AND:

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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PARAMESHA S/O KUBERA, AGED ABOUT 32 YEARS, RESIDING AT HEMMAHALLI VILLAGE, KASABA HOBLI, K.R. PETE TALUK, MANDYA DISTRICT, PIN CODE - 571 426.

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…RESPONDENT

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(BY SRI. SWAROOP T., ADVOCATE)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 27.01.2024 PASSED BY THE HON'BLE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA (SITTING AT SRIRANGAPATNA) IN CRIMINAL APPEAL NO.5015/2022 AND SET ASIDE THE ORDER

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NC: 2026:KHC:9974 CRL.RP No. 399 of 2024

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HC-KAR

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DATED 19.03.2022 PASSED BY THE HON'BLE ADDITIONAL CIVIL JUDGE AND JMFC AT K.R. PETE IN C.C.NO.306/2016 FOR THE ALLEGED OFFENCE P/U/S 138 OF N.I. ACT AND ACQUIT THE PETITIONER, IN THE INTEREST OF JUSTICE.

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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 S VISHWAJITH SHETTY

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ORAL ORDER

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Accused is before this Court in this Criminal revision

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petition filed under Section 397 read with 401 of Cr.P.C, with a prayer to set aside the judgment and order of conviction and sentence passed in C.C.No.306/2016 dated 19.03.2022 by the Court of Addl. Civil Judge & JMFC, K.R. Pete and the judgment and order passed in Criminal Appeal No.5015/2022 dated 27.01.2024 passed by the Court of III Addl. District & Sessions Judge, Mandya (sitting at Srirangapatna).

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Heard the Learned Amicus curiae on behalf of the petitioner and learned counsel appearing for respondent.

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Respondent herein had initiated proceedings against

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the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'N.I. Act') in

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NC: 2026:KHC:9974 CRL.RP No. 399 of 2024

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HC-KAR

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C.C.No.306 of 2016 before the jurisdictional Court of Magistrate. It is the case of the respondent that the petitioner, who had borrowed sum of ₹.1,50,384/- from him, towards repayment of the amount borrowed had issued the cheque in question bearing no.701556 dated 21.08.2025 drawn on Vijaya Bank, Hutahalli Branch, Mysuru City in favour of the respondent. The said cheque on presentation for realization was dishonoured by the drawee bank. The legal notice issued on behalf of the respondent to the petitioner was duly served on the petitioner and in spite of service of notice, since he had failed to repay the amount covered under the cheque in question, respondent had initiated proceedings against him for offence punishable under Section 138 of N.I Act. In the said proceeding, the Trial Court by judgment and order dated 19.03.2022 has convicted the petitioner for offence punishable under Section 138 of N.I Act and has sentenced him to pay fine of ₹.1,70,000/- and in default to undergo simple imprisonment

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for a period of 6 months. The said judgment and order of conviction and sentence passed by the Trial Court has been confirmed by the Appellate Court in Criminal Appeal No.5015 of

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NC: 2026:KHC:9974 CRL.RP No. 399 of 2024

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HC-KAR

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2022, which was dismissed on 27.01.2024. It is under the circumstances, petitioner is before this Court.

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Learned Amicus Curiae appearing on behalf of the petitioner having reiterated the grounds urged in the petition submits that the petitioner is the Managing Director of a company known as "Karunadu Agro Farm Estate Pvt. Ltd", and the respondent was a commission agent working for the Company. The cheque which was signed and kept in the office of the Company was stolen and misused by the respondent for filing the present case. The transaction between the petitioner and respondent is not proved and therefore, the Courts below were not justified in convicting the petitioner for the alleged offence. He accordingly, prays to allow the petition.

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Per contra , learned counsel for the respondent has argued in support of the impugned judgment and order and prays to dismiss the revision petition.

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Respondent / complainant in order to prove his case before the Trial Court had examined himself as PW1 and got marked 13 documents as Ex.P1 to Ex.P13. Ex.P1 is the cheque

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NC: 2026:KHC:9974 CRL.RP No. 399 of 2024

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HC-KAR

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in question, which admittedly is drawn on the bank account of the petitioner maintained by him in Vijaya Bank, Hutahalli branch, Mysuru City. The signature of the petitioner in the said cheque is marked as Exhibit P1(a). Petitioner has not disputed the signature found in the cheque in question. Therefore, a presumption arises against him that the cheque in question was issued towards legally recoverable debt and unless he rebuts the said presumption by putting forward a probable defence, he is liable to be punished for offence punishable under Section 138 of N.I. Act. The copy of legal notice Ex.P3, got issued on behalf of the respondent to the petitioner was duly served and undisputedly the petitioner has not replied to the said notice.

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It is the specific defence of the respondent that the signed cheque which was kept in his office was stolen by the petitioner and misused for the purpose of filing the present case against him. Though such a defence was raised by the petitioner, he has failed to probabilise the same. It is relevant to notice here that, the petitioner has not disputed that the writings found in the cheque belongs to him. He had not even suggested to PW1 that the cheque was filled up by PW1. DW1

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NC: 2026:KHC:9974 CRL.RP No. 399 of 2024

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HC-KAR

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has also not stated during his examination-in-chief that the handwriting found in Ex.P1 does not belong to him. If that is so, the defence of the petitioner that signed blank cheque, which was kept in his office was stolen and misused by the petitioner does not have legs to stand. Resultantly, the petitioner had failed to rebut the presumption that arose against him under Section 139 R/w Section 118 of N.I. Act by putting forward any probable defence. The Trial Court as well as the Appellate Court were therefore fully justified in convicting the petitioner for the offence punishable under Section 138 of N.I. Act. Even the order of sentence passed against the petitioner is just and proper, which does not call for interference. Under the circumstances, the criminal revision petition does not merit consideration.

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