Karnataka High Court
Sri Nanjundegowda vs Sri Vasudevamurthy on 25 July, 2025
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CRL.RP No. 1242 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO.1242 OF 2018
BETWEEN:
SRI NANJUNDEGOWDA
AGED ABOUT 65 YEARS
RESIDING AT NO.HIG 1272
FIRST FLOOR 2ND STAGE, S.B.M. COLONY,
SRIRAMPURA, MYSURU-570001.
...PETITIONER
(BY SRI. M.C. RAVI KUMAR, ADV.)
AND:
SRI. VASUDEVAMURTHY
S/O RAMASWAMY L.
AGED ABOUT 53 YEARS,
MAIN ROAD, HOLENARASIPURA TOWN
HOLENARASIPURA-573211.
...RESPONDENT
(BY SRI. RAJARAM SOORYAMBAIL, ADV.)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND SENTENCE DATED
05.10.2018, ON THE FILE OF THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE AT HASSAN IN CRL.A.NO.205/2017,
CONFIRMING THE JUDGMENT AND SENTENCE DATED
19.10.2017, IN C.C.NO.666/2013, ON THE FILE OF THE CIVIL
JUDGE AND JMFC, HOLENARASIPURA PRODUCED VIDE
ANNEXURE A AND B RESPECTIVELY AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 21.07.2025 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT,MADE
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
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CRL.RP No. 1242 of 2018
CAV ORDER
Accused has preferred this revision petition against the
judgment of conviction and order on sentence dated 19th
October 2017 passed in CC No.666 of 2013 by the Civil Judge
and JMFC, Holenarasipura, (for short hereinafter referred to as
"the Trial Court") which is confirmed by Judgment dated 05th
October 2018 passed in Criminal Appeal No.205 of 2017 by the
III Additional District & Sessions Judge at Hassan (for short
hereinafter referred to as "the appellate Court").
2. For the sake of convenience, the parties herein are
referred to as per their rank and status before the trial Court.
3. Brief facts leading to this revision petition are that the
complainant has filed a complaint under Section 138 of
Negotiable Instruments Act, 1881 as to dishonour of cheque. It
is stated in the complaint that the complainant and accused are
friends and well-acquainted with each other. Accused
approached the complainant on 01st August 2012 for his
financial exigencies, as he was running a school and was
intending to construct additional structure and also for
discharge of loan and hence in this regard, requested for an
amount of ₹15,00,000/- from the complainant. Accordingly,
the complainant has agreed to pay the sum on 13th August
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CRL.RP No. 1242 of 2018
2012. On the said date, the accused borrowed the loan from
the complainant and agreed to repay it in six months. To
discharge the said loan, accused issued a post-dated Cheque
bearing No.261899 dated 13th February 2013 drawn on Canara
Bank, Vivekanandanagar Branch, Mysore as per Exhibit P1 in
favour of the complainant. When the complainant presented the
Cheque through his Banker i.e. Shri Vasavamba Co-operative
Bank, Holenarsipura, Branch on 13th February, 2013, the
cheque came to be dishonoured with bankers endorsement
dated 14th March 2013, stating "insufficient funds". The
complainant has requested the accused on 10th March 2013 to
repay the dishonoured Cheque amount to which the accused
has replied arrogantly. Therefore, the complainant got issued
legal notice on 22nd March 2013 through Registered Post to
both the addresses of the accused. Among the two addresses,
the notice sent to one of the addresses was duly served and
one returned with an endorsement "Not claimed". The accused
failed to comply with the notice by paying the Cheque amount,
and has given a false reply. Hence, the complainant was
constrained to lodge a complaint under Section 200 of Code of
Criminal Procedure before the Civil Judge & JMFC,
Holenarsipura, which came to be registered and renamed as
PCR No.201 of 2013.
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CRL.RP No. 1242 of 2018
4. The learned Magistrate took cognizance and recorded
the sworn-statement of the Complainant and issued process to
the accused and registered the case in CC No.666 of 2013
against the accused for the offence punishable under Section
138 of Negotiable Instruments Act, 1881. Accused appeared
through his Counsel and was enlarged on bail. The substance
of plea was recorded and the accused pleaded not guilty and
claimed to be tried. To prove the guilt of the accused,
complainant has examined three witnesses as PWs1 to 3 and
produced 41 documents as Exhibits P1 to P41. On closure of
complainant's side evidence, Statement of the accused under
Section 313 of the Code of Criminal Procedure was recorded.
Accused has totally denied the evidence of complainant
witnesses and has adduced evidence of two witnesses as DWs1
& 2 and marked two documents as Exhibits D1 and D2.
Complainant has submitted written arguments. Having heard
the arguments on both sides, the trial Court convicted the
accused for the offence punishable under Section 138 of
Negotiable Instruments Act and awarded compensation of
Rs.20,00,000/- and in default of payment of compensation, the
accused shall undergo simple imprisonment for a period of six
months. Being aggrieved by this Judgment of conviction and
order on sentence, the accused preferred appeal before the III
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CRL.RP No. 1242 of 2018
Additional District & Sessions Judge, Hassan in Criminal Appeal
No.205 of 2017. Same came to be dismissed on 05th October
2018. Being aggrieved by the Judgment of conviction and order
on sentence passed by the trial Court which is confirmed by
appellate Court, accused is before this Court in this Revision
Petition.
Submission on behalf of the accused-revision petitioner:
5. Sri M.C. Ravi Kumar, learned Counsel appearing for
the revision petitioner would submit that the judgment of
conviction and order on sentence passed by the trial Court
which is confirmed by the appellate Court, suffers from non-
application of mind as also non-appreciation of law and facts,
and the same is neither sustainable in law nor on facts. He
submitted that the Court below, based only on presumptions,
surmises and conjectures, which are not relevant to the
circumstance of the case, has passed the impugned Judgment
of conviction which again is erroneously confirmed by the
appellate Court. The complainant has averred that he has lent
a sum of Rs.15,00,000/- to the accused, but has not submitted
any evidence to corroborate this fact. As per Section 269SS of
the Income Tax Act, any payment above Rs.20,000/- must be
made by way of Cheque. The complainant has no source of
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CRL.RP No. 1242 of 2018
income to lend such huge sum to the accused. Further, submits
that the endorsement issued by the Canara Bank did not bear
the seal and signature, and the same is concocted and created.
However, both the Courts have not considered the above. The
revision petitioner is a retired Professor and his children are also
well-settled. Petitioner's son is working abroad and daughter is
working at Bengaluru and both are having handsome income.
The revision petitioner is a pensioner as well. The sale deed
Exhibit P32 has not been executed by the wife of the
complainant alone. The sale consideration amount of
Rs.9,60,000/- was not entirely belonging to the wife of the
complainant. Though the accused has closed his account during
the year 2008 itself and has exhausted all the Cheque leaves,
apart from the Cheque in question, as the same was given to
his wife which he was under the impression that even that
Cheque might have been used by his wife as he is not in the
habit of writing counterfoils. The last Cheque issued was to LIC
and thereafter he has not operated the said account. The
accused was shocked to comprehend as to how the respondent,
who is a stranger, was in custody of the Cheque. Both the
Courts have erred in concluding that the respondent has the
benefit of the presumption under Section 139 of Negotiable
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CRL.RP No. 1242 of 2018
Instruments Act. The petitioner has rebutted the presumption
by:
a) issuing a reply to the notice issued by the
complainant;
b) conducting cross examination; and
c) way of leading evidence and producing the
documents
But, the same is not considered by both the Courts.
6. Learned Counsel further submitted that it is the case
of the complainant that for the purpose of constructing
additional structure in the education institution, the accused is
said to have borrowed Rs.15,00,000/- on 01st August 2012 with
an assurance to repay the same and in that regard, has issued
a Cheque dated 13th February 2013. It is the specific case of the
complainant that the post-dated Cheque was given, which came
to be dishonoured by the Bank with an endorsement
"Insufficient funds", and as such, legal notice was issued to the
accused on 22nd March, 2013. The accused is said to have
replied to the Notice on 06th April, 2013 as per Exhibit P7.
7. Further, it submitted that in the cross-examination
when the question about source of money was posed, the
complainant has given explanation that it is his Brother-in-law,
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CRL.RP No. 1242 of 2018
who gave money by selling a Plot measuring 30 x 40 situated at
Nachenahalli, JP Nagar, Mysore. Whereas, in the cross-
examination of the complainant, there are serious
contradictions with regard to receipt of money, where the
complainant mentioned that his brother-in-law gave a sum of
Rs.9,60,000/-.
8. It is his further submission that the endorsement of
"insufficient funds" is not given by the Canara Bank and does
not contain the seal of Canara Bank to evidence the same. The
printed shara is manipulated by the complainant to
surreptitiously introduce in the Court, as if the Cheque was
returned. The complainant has examined the officials of Sri
Vasavamba Co-operative Bank and Canara Bank. When an
application is made as such under Section 91 of Chapter VII of
the Code of Criminal Procedure to call a witness, more
particularly a Bank witness, it is presumable that the witness
coming from the Bank to give evidence is an official witness and
such witness is expected to speak pertaining to the documents
either received or dispatched from the Bank from where the
Cheque was originated. It is also submitted that Exhibit P1
Cheque has no seal of the said Branch of Canara Bank, which
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CRL.RP No. 1242 of 2018
was received from Sri Vasavamba Co-operative Bank,
Holenarasipura Branch, for realisation.
9. Further, it is submitted that the important aspect
which is apparent on record, is the evidence of the complainant
which is categorical to say that the accused gave a post-dated
Cheque in favour of the complainant. On close examination of
the same, one could see that the signature, admittedly belongs
to the accused, is in one ink, whereas the date, name and
amount in words and in figure are written in different ink and
the handwriting is also different. This supports the case of the
accused that the signed Cheque was there in the Cheque of 20
leaves and one missing is not utilised by the wife of the accused
for school expenditure.
10. Further, he would submit that the introduction
relating CTS Cheque transactions was, admittedly, around the
year 2005. The missing Cheque being the subject matter, was
one from the Cheque book issued in the year 2002. Bank
Circular mandates surrender of the non-CTS
Cheques/chequebooks after the introduction of CTS concept.
Therefore, the subject matter of Exhibit P1 date back to 2002,
more particularly, when the said account became inoperative in
the year 2008. It was necessary for the Bank witness, if he was
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CRL.RP No. 1242 of 2018
genuinely a Bank witness, to have spoken about the inoperative
aspect of the said Bank account when the Exhibit P1 was
submitted for realisation. Therefore, looked from any angle,
the complainant played fraud in collusion with Bank witness.
Further, if Exhibit P2 were to be genuine, it should have been a
computer-generated memo. Whereas, Exhibit P2 is a printed
blank memo kept in the Bank to be obtained by anybody for
utilisation, prior to 2005. Had it been a computer-generated
memo, the need for the verification of a signature might not be
necessary. Since Exhibit P2 is a printed one, the same cannot
be treated as computer-generated, more particularly, in the
year 2013. Hence, he submits that taking into consideration
the above points, the pleadings and evidence placed on record,
the accused has successfully rebutted the presumption of
Section 139 and the endorsement as "insufficient funds"
marked as Exhibit P2 is a fabricated memo, deliberately made
for unlawful gain. On all these grounds, he sought to allow the
Revision Petition. In support of his submissions, the learned
counsel placed reliance on the following decisions:
1. CRIMINAL APPEAL NO.439 OF 2018 AND
CONNECTED APPEAL DECIDED ON 09.10.2023
IN THE CASE OF SMT. PAVITHRA v. SMT.
SHEELA V;
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CRL.RP No. 1242 of 2018
2. CRIMNIAL APPEAL NO.939 OF 2010 DECIDED
ON 07.08.2019 IN THE CASE OF YESHWANTH
KUMAR v. SHANTH KUMAR N;
3. JUDGMENT OF HON'BLE SUPREME COURT
RENDERED IN CRIMINAL APPEAL NO.724 OF
2025 DECIDED ON 26.03.2025 IN THE CASE OF
REKHA SHARAD USHIR v. SAPTASHRUNGI
MAHILA NAGARI SAHKARI PATSANSTA LIMITED
Submission on behalf of the respondent-complainant:
11. On the other hand, Sri Rajaram Sooryambail, learned
Counsel appearing for the respondent-complainant would
submit that both the Courts have properly appreciated the
evidence on record in accordance with law and facts and
absolutely there are no grounds to interfere with the impugned
Judgment of conviction and order on sentence passed by the
trial Court, which is confirmed by the appellate Court. He would
submit that both the Courts have considered the arguments
advanced on behalf of the accused and the complainant and
assigned proper reasons to reject the grounds urged by them.
Accordingly, he sought for dismissal of revision petition.
12. Having heard on both sides and on perusal of material
placed before me, the point that would arise for my
consideration is whether the Judgment of the trial Court, which
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CRL.RP No. 1242 of 2018
is confirmed by the appellate Court is perverse, capricious,
illegal, and suffers from legal infirmities.
Finding:
13. It is the case of the complainant that the accused has
issued Exhibit P1-cheque dated 13th February 2013 to discharge
loan amount of Rs.15,00,000/- which was borrowed on 13th
August 2012. Accused has not disputed that Cheque-Exhibit P1
belongs to him. In his evidence DW1 has clearly admitted that
the Cheque-Exhibit P1 belongs to him. When the Cheque was
presented to the Bank, the same returned with endorsement
"Insufficient funds". Accused has not specifically denied as to
signature on the Cheque, which is marked as Exhibit P1(a).
Learned Counsel for the accused vehemently submitted that the
Bank endorsement-Exhibit P3 is concocted and a created
document. The Bank authorities have not put their seal on
Exhibit P3. Bank authorities have also not issued the computer-
generated endorsement. In this regard, I have examined
Exhibit P3-endorsement. This is a printed Form maintained by
Canara Bank. One Sri Vasudeva Murthy has put his signature
on behalf of Sri Vasavamba Co-operative Bank Ltd and the
reason for return of Cheque No.261899 for Rs.15,00,000/- is
insufficient funds. This endorsement of the Bank has not been
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CRL.RP No. 1242 of 2018
disputed by the accused in reply Notice Exhibit P7. Even DW1-
Nanjundegowda, the retired Principal, has not whispered
anything as to the contents of Exhibit P3. To substantiate the
contents of Exhibit P3, complainant has examined the Bank
Manager, Sri S.R. Murthy of Sri Vasavamba Co-operative Bank
Ltd. He has clearly deposed in his evidence as to the
presentation of Cheque No.261899 and he has sent the same to
Industrial Development Bank of India (for short "the IDBI") and
the IDBI has sent intimation as to insufficient funds in the
account. When they have sent the Cheque for realisation to
Canara Bank, Vivekanandanagar Branch on 8th March 2013,
they issued the endorsement as "funds insufficient". In this
regard, Exhibit P 33-certificate issued by Sri Vasavamba Co-
operative Bank Ltd., reads as under:
"²æà Dgï. ªÁ¸ÀÄzÉêÀªÀÄÆðw ©£ï J¯ï. gÁªÀĸÁé«Ä ±ÉnÖ,
ºÉƼɣÀgÀ¹Ã¥ÀÄgÀ gÀªÀgÀÄ £ÀªÀÄä ¨ÁåAQ£À°ègÀĪÀ CªÀgÀ G½vÁAiÀÄ
SÁvÉ £ÀA. 3285 PÉÌ PÉ£ÀgÁ ¨ÁåAPï, «ªÉÃPÁ£ÀAzÀ£ÀUÀgÀ ±ÁSÉ,
ªÉÄʸÀÆj£À ZÉPï £ÀA. 261899, ZÉPï ¢£ÁAPÀ 13-02-2013 gÀÆ.
15,00,000-00 (gÀÆ. ºÀ¢£ÉÊzÀÄ ®PÀë ªÀiÁvÀæ) UÀ¼À£ÀÄß ZÉPï
£ÀUÀ¢ÃPÀgÀtPÉÌ ºÁdgÀÄ¥Àr¹zÀÄÝ, ¸ÀzÀj ZÉPÀÌ£ÀÄß ¢£ÁAPÀ 14-02-
2013 gÀAzÀÄ ªÉÄʸÀÆj£À PÉ£ÀgÁ ¨ÁåAQUÉ PÀ¯ÉPÀë£ïUÁV PÀ¼ÀÄ»¹zÀÄÝ,
- 14 -
CRL.RP No. 1242 of 2018
C°èAiÀÄ SÁvÉAiÀÄ°è £ÀUÀzÀÄ E®èªÉA§ÄzÁV ªÁ¥À¸ÀÄì PÀ¼ÀÄ»¹gÀÄvÁÛgÉ.
¸ÀzÀjAiÀĪÀjUÉ £ÁªÀÅ PÉ£ÀgÁ ¨ÁåAPï ªÉÄʸÀÆj£ÀªÀgÀÄ PÉÆnÖgÀĪÀ
ZÉPï ªÁ¥À¸Áìw ªÉĪÉÆzÉÆA¢UÉ ZÉPÀÌ£ÀÄß ªÁ¥À¸ÀÄì PÉÆnÖzÀÄÝ, £ÀAvÀgÀ
zÀ£ÁAPÀ 28-02-2013 gÀ°è CzÉà ZÉPÀÌ£ÀÄß ªÉÄʸÀÆj£À PÉ£ÀgÁ
¨ÁåAQUÉ ªÀÄgÀÄ £ÀUÀ¢ÃPÀgÀtPÉÌ ºÁdgÀÄ¥Àr¸À®Ä PÉÆÃgÀzÀÄÝ. ¢£ÁAPÀ
04-03-2013 gÀ°è SÁvÉAiÀÄ°è £ÀUÀzÀÄ E®èªÉA§ÄzÁV
ªÁ¥À¸ÁìVgÀÄvÀÛzÉ. D ZÉPÀÌ£ÀÄß ²æà Dgï. ªÁ¸ÀÄzÉêÀ ªÀÄÆwðgÀªÀjUÉ
ZÉPï£ÉÆqÀ£É PÉ£ÀgÁ ¨ÁåAPï ªÉÄʸÀÆj£ÀªÀgÀ ZÉPï ªÁ¥À¸Áìw
ªÉĪÉÆzÉÆA¢UÉ ªÁ¥À¸ÀÄì ªÀiÁqÀ¯Á¬ÄvÉA§ÄzÀ£ÀÄß F ªÀÄÆ®PÀ
CfðzÁgÀgÁzÀ ²æà Dgï. ªÁ¸ÀÄzÉêÀ ªÀÄÆwðgÀªÀgÀ PÉÆÃjPÉ ªÉÄÃgÉ
F zÀÈrüÃPÀgÀt ¥ÀvÀæ ¤ÃqÀ¯ÁVzÉ."
14. Another witness PW3-Ningegowda of Canara Bank,
Vivekananda Nagar Branch, Mysore has deposed that account
No.6624 belongs to one Nanjundegowda who is the customer of
the Bank and he has issued Cheque-Exhibit P1. The same was
presented for realisation. They issued endorsement Exhibit P2
stating "funds insufficient". During the course of cross-
examination of this witness, learned Counsel for the accused
has not disputed as to the endorsement. With regard to bank
slips, it is relevant to mention here as to the provision of
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CRL.RP No. 1242 of 2018
Section 146 of Negotiable Instruments Act, 1881. The same
reads as under:
"146. Bank's slip prima facie evidence of
certain facts
The Court shall, in respect of every proceeding
under this Chapter, on production of bank's slip or memo
having thereon the official mark denoting that the
cheque has been dishonoured, presume the fact of
dishonour of such cheque, unless and until such fact is
disproved."
15. In the case on hand, though the accused has not
disputed that the cheque was dishonoured for want of sufficient
funds, he has disputed that endorsement does not bear seal
and signature of the Bank. A careful examination of this
document makes it is clear that instead of Bank's seal, there is
the name of Sri Vasavamba Co-operative Bank Ltd.,
Holenarsipura, written in handwriting and one of the officials of
the Bank has also put his signature. There is official mark of
Canara Bank on this endorsement.
16. In view of the aforesaid provision of Section 146 of
Negotiable Instruments Act, it is clear that on production of the
bank's slip or memo having thereon the official mark denoting
that the Cheque has been dishonoured, presume, the fact of
dishonour of such Cheque, unless and until such fact is
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CRL.RP No. 1242 of 2018
disproved. Merely because there is no seal of the concerned
Bank, the same would not be a ground to reject the Bank and
endorsement issued by the concerned Bank, which is also
proved by adducing oral evidence of PWs2 & 3 and also
certificate-Exhibit P33. Apart from this, upon the deposit of the
Cheque-Exhibit P1 for realisation, the Bank authorities i.e. the
Manager of Sri Vasaamba Co-operative Bank Ltd. has affixed
seal and signature while requesting the IDBI to realise the
Cheque amount. Accordingly, the complainant has proved the
contents of Exhibit P3 bank and its endorsement. Accused has
not placed any material to rebut the presumption under Section
146 of Negotiable Instruments Act as to the slip issued by the
concerned bank. On the contrary, Exhibit P7 is issued on behalf
of the accused and during the course of cross-examination of
PWs1 to 3 and evidence of DW1, accused has not taken any
contention that Exhibit P2-endorsement is a concocted and
created document. Therefore, the argument advanced on behalf
of the revision petitioner in this regard cannot be accepted.
17. It is the submission of the learned counsel for the
revision petitioner that the Bank authorities ought to have
issued computer-generated bank slip. This argument also
cannot be accepted, as there is no provision under Negotiable
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CRL.RP No. 1242 of 2018
Instruments Act or any other provision in any enactment. The
Counsel for the Revision Petitioner has not placed any material
to show that unless the Bank issues and endorsement which is
computer-generated, the endorsement is not admissible in
evidence. If the accused has disputed the contents of Exhibit
P2, the entire burden lies upon him to rebut the presumption
under Section 146 of Negotiable Instruments Act. But no such
rebuttal evidence is placed by the accused. Therefore, the
argument advanced by the learned Counsel for revision
petitioner cannot be accepted.
18. It is further submitted by the learned Counsel that
bank transaction relating to the introduction of CTS Cheque was
around the year 2005. The missing Cheque being the subject
matter was the cheque-book issued in the year 2002, Bank
circulation mandates surrender of non-CTS Cheques since the
CTS concept was introduced. Therefore, the Exhibit P1 date
back to 2002, more particularly, when the said account become
inoperative in the year 2008 itself, it was necessary for the
Bank witness to examine the aspect of said account when
Exhibit P1 was submitted for realisation. Therefore, it is clear
that the complainant played fraud in collusion with bank
witness. It is submitted that Exhibit P2 is a printed blank memo
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CRL.RP No. 1242 of 2018
kept in the Bank to be used by anyone prior to year 2005. Had
it been computer-generated memo, the need for verification of
signature may not be necessary. In this regard, the learned
Counsel for the petitioner also produced memo along with
Reserve Bank of India guidelines downloaded through internet.
In this guidelines, there is no bar to receive the Cheque which
has no CTS compliance. Therefore, this argument also cannot
be accepted.
19. As regards, cash transaction is concerned, it is
submitted that the complainant has violated the provisions of
section 269SS of Income Tax Act. In this regard, this Court in
Criminal Revision Petition No.2011 of 2013, decided on 18th
November 2022 in the case of GAJANAN v. APPASAHEB
SIDDAMALLAPPA KAVERI, relying on the decisions of various
other High Courts and the Hon'ble Supreme Court, has held that
the contravention of Section 269SS of the Income Tax Act, does
not make the alleged transaction void. Concerned authorities
can take necessary action against the complainant for non-
compliance of Section 269SS of Income Tax Act. Only on that
ground this Court cannot interfere with the judgment passed by
the courts below. In view of the said judgment, the argument
advanced on behalf of the accused cannot be accepted.
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20. With regard to financial capacity of the petitioner is
concerned in Exhibit P7, the accused has not taken any
contention to the effect that the complainant has no financial
capacity to lend amount of Rs.15,00,000/-. However, the
complainant has produced Exhibit P32-Sale Deed dated 25th
July 2012, by which agreement a plot is sold by the wife of the
complainant for valuable consideration of Rs.9,60,000/-. He
has also produced Exhibits P8 to P32, the invoices pertaining to
Mysore Sandal Soap and other prestigious companies to show
that the complainant was having agency of such companies.
DW1 has not disputed as to Exhibits P8 to P32 in his evidence.
In the decision of Supreme Court in the case of ASHOK SINGH
v. STATE OF UTTAR PRADESH AND ANOTHER rendered in
Criminal Appeal No.4171 of 2024 decided on 02nd April, 2025,
the Hon'ble Supreme Court has observed that the onus is not
on the complainant at the threshold to prove his capacity to
make payment and discharge of which is alleged to have been
issued in his favour. Only if an objection is raised that the
complainant was not in a financial position to pay the amount
so claimed by him to have been given as loan to the accused,
only then the complainant would have to bring before the Court
cogent material to indicate that he had the financial capacity
and had actually advanced with the amount in question by way
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CRL.RP No. 1242 of 2018
of loan. In the case on hand, at the time of issuance of reply
notice, the accused has not questioned the complainant as to
the financial capacity but only during the course of cross-
examination of PW1, he has questioned. Thereafter, the
complainant has adduced oral evidence along with the
documentary evidence-Exhibits P8 to P32 and the accused has
not placed any material to show that the complainant was not
having the financial capacity to land and amount of
Rs.15,00,000/-. Therefore, this argument advanced on behalf
of the accused also fails.
21. Another contention taken by the accused is that
Cheque Exhibit P1 has no seal of the branch of Canara bank
receiving the Cheque from Sri Vasavamba Co-operative Bank
Ltd. as far as realisation is concerned. In this regard, Exhibit
P2-Bank's printed slip itself reveals that the endorsement was
issued by the said Bank. Therefore, the seal on Exhibit P1 is not
at all required. Hence, the said argument also do not stand.
22. It is also contended that the bank account of the
complainant was inoperative from the year 2008. The status of
the said Cheque was not CTS complaint and the same can be
realised by computer application in order to ascertain
availability of balance. Merely because the bank transaction
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was inoperative from 2008, this Court cannot reject that the
Cheque is not issued by the accused. Among the counterfoils of
the Cheque book containing cheque leaves bearing No.261881
to 261900, one of the counterfoils i.e. Exhibit P1-Cheque
No.261899 is pertaining to the said Cheque book. All the
counterfoils are left blank. DW1 has deposed in his evidence
that he has received cheque-book from Canara Bank in the year
2002, which consists of 10 leafs and all the cheque leaves
exhausted in the year 2003. Thereafter, there is no transaction
in the said Bank. In this regard, he has produced Exhibit D1
counterfoils and Exhibit D2-Passbook of Canara Bank. Exhibit
D2-Passbook reveals that this transaction of the accused
pertaining to the account No.6624 between 02nd November,
2002 and 17th September 2003. The accused has not produced
any document to show that this account No.6624 was
inoperative from 2003. Even if we presume that the account
No.6624 was inoperative, that does not mean that the accused
has not issued Exhibit P1 in favour of the complainant. The
Cheque book was in the custody of the complainant and he can
make use of the Cheque leaf as per his convenience.
Accordingly, the accused has issued the Cheque in favour of the
complainant as stated by the complainant. Therefore, the
production of Exhibits D1 and D2 will not be of any help to the
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accused to rebut the presumption and Section 139 of Negotiable
Instruments Act. The accused has also taken defence that his
Bank account was inoperative. DW1 in his evidence also has
deposed the same. In Exhibit P7, he has stated that the
accused was astonished to get to know as to how the
complainant has come into possession of his Cheque. In this
regard, the accused has not taken any legal steps against the
complainant. Learned counsel for the accused would submit
that accused was a Professor in the College at Mysuru in 2008
and the administration of Education Institution viz. 'Vidya
Niketan' was being run by his wife. For the purpose of payment
of money to school staff and other expenses, the signed
Cheques were sometimes kept in the School Office itself. The
Cheque book was a non-CTS Cheque and the account was
inoperative from 2008 and all the leaves of Cheque book were
exhausted. It was only known when the Cheque was presented
for encashment and notice was issued upon for dishonour of
Cheque. Reply was also given to the said notice. Even the
person who stole the cheque could not be identified and hence
no complaint was given. This argument cannot be accepted for
the reason that when the accused has received the demand
notice from the complainant to pay the Cheque amount, the
complainant ought to have taken legal steps against the
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accused for issuance of Cheque for Rs.15,00,000/-. Even after
filing the complaint and after receipt of Court summons,
accused has not taken any legal steps against the complainant
for misuse of cheque on the basis of dishonour of the cheque as
also the Bank's endorsement. Therefore, the argument
advanced on behalf of the accused cannot be accepted.
23. On 22nd July, 2025, after submitting arguments on
merits, the learned Counsel for the accused-revision petitioner
filed application under along with memorandum of facts to
initiate proceedings against the respondent as he has created
document Exhibit P2. This Court has elaborately discussed as
to Exhibit P2-Bank endorsement and held that it is a genuine
endorsement issued by the concerned Bank. Hence, the
application filed under Section 340 of Code of Criminal
Procedure read with Section 379 of BNSS, 2023, is not
maintainable.
24. On careful scrutiny of the entire material placed on
record, it becomes crystal clear that the complainant has
proved the essential ingredients to attract the commission of
offence under Section 138 of Negotiable Instruments Act and
complied all the mandatory provisions of the said section before
filing the complaint. The complainant has discharged his
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burden to prove his case. On the contrary, the accused has
failed to rebut statutory presumption. Both the courts have
properly appreciated the evidence on record in accordance with
law and facts and has rightly convicted the accused for the
offence punishable under Section 138 of Negotiable Instruments
Act.
25. On re-evaluation of the entire evidence on record, I
do not find any error/Legal infirmity in the judgment of
conviction and order sentence passed by the trial Court which is
confirmed by the appellate Court. Hence I answer the point
arose for consideration in the negative.
26. In the result, I proceed to pass the following:
ORDER
i) Criminal Revision Petition is dismissed;
ii) Judgment of conviction and order on sentence dated 19th October 2017 passed in CC No.666 of 2013 by the Civil Judge and JMFC, Holenarasipura, which is confirmed by Judgment dated 05th October 2018 passed in Criminal Appeal No.205 of 2017 by the III Additional
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CRL.RP No. 1242 of 2018District & Sessions Judge at Hassan, is confirmed;
iii) Consequently, Application filed by the Revision Petitioner under Section 340 of Code of Criminal Procedure read with Section 379 of BNSS, 2023 is rejected.
iv) Registry to send the trial court records along with the copy of this order to the concerned Court.
Sd/-
(G BASAVARAJA) JUDGE lnn