Karnataka High Court
Mr. Arun. N. Shastry vs Miss. Rekha Kumari. B on 21 April, 2025
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NC: 2025:KHC:16259
CRL.RP No. 1713 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2025
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO. 1713 OF 2023
(397(Cr.PC) / 438(BNSS))
BETWEEN:
MR. ARUN. N. SHASTRY
S/O. LATE NARAYANA,
AGED ABOUT 47 YEARS,
MANAGING DIRECTOR OF
BINARYS DATE SOURCE (1) PVT. LTD.,
NO.4/35, DR. RAJKUMAR ROAD,
4TH 'N' BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
ALSO RESIDING AT NO. 42,
4TH CROSS, SIR M.V.LAYOUT,
NEAR GAS GODOWN, KODIGENAHALLI,
THINDLU MAIN ROAD, BENGALURU-560 097.
Digitally
signed by ...PETITIONER
REKHA R
(BY SRI. GOPALA H M, ADVOCATE)
Location:
High Court
of Karnataka AND:
MISS. REKHA KUMARI. B
D/O. SRI. BABUTAL.P,
AGED ABOUT 38 YEARS,
R/AT NO. 711, 4TH CROSS,
3RD BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
...RESPONDENT
(BY SRI.H.J.SANGHVI, ADVOCATE)
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CRL.RP No. 1713 of 2023
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
JUDGMENT DATED 11.09.2023 PASSED BY THE LVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-59)
BENGALURU CITY IN CRL.A.NO.658/2021 AND ALSO SET
ASIDE THE ORDER DATED 04.09.2021, PASSED BY THE
LEARNED XIII ADDL.CMM, BENGALURU IN C.C.NO.18746/2016,
CONSEQUENTLY DISMISS THE SAID BY ALLOWING THE
REVISION PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
ORAL ORDER
This petition filed under Section 397 r/w 401 Cr.P.C is by the accused, challenging his conviction and sentence for the offence punishable under Section 138 of the Negotiable Instrument Act, imposed by the trial Court, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him.
2. For the sake of convenience, parties are referred to by their ranks before the trial Court. -3-
NC: 2025:KHC:16259 CRL.RP No. 1713 of 2023
3. Complainant filed the complaint contending that she was an employee of accused, working as sales co-ordinator since August 2014. During the said period, the company was suffering loss. To overcome the same accused requested the complainant to arrange for hand loan of ₹4 lakhs. Since complainant's father is a businessman, she took ₹4 lakhs from her father and lent the same to the accused. In fact, complainant has executed a demand promote in favour of her father. Accused had promised to repay the same within a short time. However, accused failed to fulfill his promise. He also stopped paying her salary and she had to approach the labour Court for recovery of her salary. On her repeated request and demand accused issued cheque dated 31.03.2016 for ₹4 lakhs with an assurance that it would be honoured on presentation. However, when she presented it for encashment, it was returned dishonour for want of sufficient funds. In this regard, she got issued a legal notice to the accused. Accused has neither paid the amount due or sent reply and hence the complaint. -4-
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4. Accused appeared through counsel and contested the case by pleading not guilty.
5. In order to prove the allegations against the accused, complainant has examined herself as PW-1 and relied upon Exs.P1 to17.
6. During the course of his statement under Section 313 Cr.P.C accused has denied the incriminating evidence led by the complainant.
7. Accused has also stepped into the witness box and examined himself as DW-1. He has relied upon Exs.D1 to 6.
8. The trial Court convicted the accused and sentenced him to pay fine of ₹4,10,000/- with default sentence of imprisonment.
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9. Aggrieved by the same accused approached the Sessions Court in Crl.A.No.658/2021. It came to be dismissed by confirming the judgment and order of trial Court.
10. Aggrieved by the same, the accused is before this Court contending that the judgment and order are not sustainable either in law or on the facts and are liable to be set aside . The complainant has not stated the date on which loan was advanced. Except the oral testimony of the complainant, there is no evidence to show that huge some of ₹4 lakhs was advanced to the accused. The accused has borrowed hand loan of ₹1,90,000/- from the complainant and had issued a blank cheque by way of security. Even though he repaid the said amount, the cheque was not returned and it is utilised to file the complaint. Both Courts have not appreciated this fact. Complainant has not examined her father to prove her case. Her income tax returns also does not reflect the fact of lending ₹4 lakhs to the accused. The findings of the trial Court and Sessions -6- NC: 2025:KHC:16259 CRL.RP No. 1713 of 2023 Court are contrary to the evidence on record and as such perverse and pray to allow the petition and set aside the same.
11. On the other hand, learning counsel for complainant argued that when the complainant joined the company of accused, it's financial condition was not sound and infact it went on deteriorating. Not only accused failed to pay the salary of complainant, but also requested for financial assistance through her father. Accordingly complainant paid ₹4 lakhs to the accused by way of hand loan. However, accused failed to repay the same and on persistent request and demand he issued cheque for ₹4 lakhs, which came to be dishonoured for want of sufficient funds. Instead of complying with the legal notice, accused has sent a notice making false allegations of theft of records and other documents from his office when complainant left the job.
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NC: 2025:KHC:16259 CRL.RP No. 1713 of 2023 11.1 He would further submit that complainant had to approach the labour department for recovery of salary and secured order for payment of ₹1,50,000/- towards her salary from March 2015 to December 2015. He has also taken an untenable defence that he had taken hand loan of only ₹1,90,000/- and at that time, he had issued the subject cheque for ₹4 lakhs, which also includes arrears of salary, by way of security; even after he repaid the hand loan of ₹1,90,000/- complainant failed to return the security cheque; on other hand presented it and on its dishonour filed false complaint. The trial Court and Sessions Court on proper appreciation of the evidence on record have rightly convicted the accused and pray to dismiss the revision petition.
12. Heard arguments and perused the record.
13. It is not in dispute that the cheque in question is drawn on the account of the accused and it bears his -8- NC: 2025:KHC:16259 CRL.RP No. 1713 of 2023 signature. On presentation, it is dishonoured for want of sufficient funds and after issuing legal notice and on the failure of accused to comply with the same, complaint is filed. Therefore, presumption under Section 139 of the N.I Act is attracted, placing the initial burden on the accused to rebut the presumption and establish that the cheque in question was not issued towards payment of any legally recoverable debt or liability. Only after the accused rebut the presumption, the burden would shift on the complainant to prove her case.
14. It is also not in dispute that complainant was an employee of accused. The evidence of complainant reveal that from the beginning of her joining the service, she realised that company's financial condition was not sound and in fact, accused requested her to provide financial assistance through her father. During the cross- examination, accused has admitted that the financial condition of the company was very bad and ultimately it was closed. According to the complainant, she fulfilled the -9- NC: 2025:KHC:16259 CRL.RP No. 1713 of 2023 request of the accused. While the complainant claimed that the hand loan given to accused was ₹4 lakhs, accused has claimed that it was only ₹1,90,000/-.
15. It is pertinent to note that immediately after receipt of the legal notice, the accused has not chosen to send reply putting forth his defence at the earliest available opportunity. On the other hand, after the complainant filed the present complaint, she has chosen to send a legal notice to the accused as per Ex.P13 alleging that while leaving the job, she has taken several documents and 3HDDS containing software source codes, etc, and called upon her to return the same. He has also stated that the loan taken by him is only ₹1,90,000/- and cheque for ₹4 lakhs was issued by way of security and even after ₹1,90,000/- was repaid, she did not return the subject cheque. Of course, the complainant has sent reply to the said notice as per Ex.P14 denying the allegations made therein.
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16. At the same time, during the course of his evidence, the accused has deposed that the cheque for ₹4 lakhs was issued not only towards collateral security of the hand loan of ₹1,90,000/-, but also balance of salary and interest at the rate of 2% per month on the said amount. If that is so then the subject cheque for ₹4 lakhs reflects not only the alleged hand loan of ₹1,90,000/- taken from the complainant, but also the arrears of salary due, as on the said date and also the interest. Therefore, the cheque at Ex.P1 reflects the amount due. Consequently, the payment as per Exs.D1 and 2 is not the entire payment due and therefore the accused cannot claim due discharge. If at all ₹1,90,000/- was the only amount due as on the date of Ex.D1, then there was no impediment for the accused to demand return of Ex.P1 cheque and on the failure of complainant to return it, accused could have instructed his banker not to honour it, stating the reasons there on.
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17. Accused could have produced his accounts maintained in the office to demonstrate that he had borrowed ₹1,90,000/- from the complainant and repaid the same through Ex.D1. The accounts maintained by him could have also thrown light on the dispute as to what exactly was the salary due to the complainant. As per Ex.P1, accused was due to pay the salary from March 2015 to December 2015 in a total sum of ₹1,50,000/-. Despite due service of notice, the accused has not chosen to appear before the labour commissioner and produce his books of account as to what exactly was the amount if any, due to the complainant towards the salary.
18. The accused has failed to rebut the presumption and consequently failed to discharge the initial burden. Hence, the burden has not shifted on the complainant to prove his case. However, through the oral and documentary evidence on record, the complainant has established that the cheque in question was issued towards repayment of legally recoverable debt or liability.
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NC: 2025:KHC:16259 CRL.RP No. 1713 of 2023 The trial Court as well as the Sessions Court on appreciation of oral and documentary evidence placed on record have rightly held that the allegations against accused are proved. The conclusions arrived at by them is consistent with the evidence on record. This court finds no perversity calling for interference. In the result, the petition fails and accordingly the following:
ORDER
(i) Petition filed by the petitioner under Section 397 r/w 401 of Cr.P.C is dismissed.
(ii) The impugned judgment and order dated 04.09.2021 in C.C.No.18746/2016 on the file of XIII ACMM, Bengaluru and judgment and order dated 11.09.2023 in Crl.A.No.658/2021 on the file of LVIII Addl.City Civil and Sessions Judge (CCH-
59), Bengaluru are confirmed.
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(iii) The Registry is directed to send back the trial Court as well as Sessions Court records along with copy of this order to the trial Court forthwith.
Sd/-
(J.M.KHAZI) JUDGE RR List No.: 1 Sl No.: 64