Karnataka High Court
Jagdish R vs Sri B S Ravi on 16 April, 2026
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 1081 of 2018
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.1081 OF 2018
(397(Cr.PC) / 438(BNSS)
BETWEEN:
JAGADISH R
AGED ABOUT 29 YEARS,
S/O L RAMANNA,
NO.9-9/1,
E CROSS, 24TH MAIN ROAD,
J.C.NAGARA,
KURUBARAHALLI
BANGALORE-560086
...PETITIONER
(BY SRI. RISHI PAL SINGH VARMA, ADVOCATE)
AND:
SRI B S RAVI
AGED 56 YEARS,
Digitally
signed by R S/O LATE SRIKANTAIAH,
MANJUNATHA R/AT NO.4, 4TH MAIN ROAD, SHIVA NAGAR,
Location: RAJAJINAGAR,
HIGH COURT BANGALORE-560010
OF
KARNATAKA
SINCE DEAD REPRESENTED BY
LEGAL REPRESENTATIVES
1(A) SMT.SHEELAVATHI.B.M
W/O LATE SRI B.S.RAVI
AGED ABOUT 60 YEARS
1(B) SRI JAYANTH RAVI.B
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CRL.RP No. 1081 of 2018
S/O LATE SRI B.S.RAVI
AGED ABOUT 35 YEARS
1(C) LAVANYA.B.R
D/O LATE SRI B.S.RAVI
AGED ABOUT 30 YEARS
ALL ARE RESIDENT OF
NO.176, 3RD MAIN ROAD
7TH CROSS, 1ST STAGE, 5TH PHASE,
SRI MAHAGANAPATHY NAGAR
RAJAJINAGAR
BENGALURU.
...RESPONDENTS
[BY SRI. CHANDRASHEKAR P PATIL, ADVOCATE
FOR R1 (A TO C)]
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED
09.08.2018 IN CRL.A.NO.1154/2016, BEFORE THE HON'BLE
COURT OF LXVIII CITY CIVIL AND SESSION JUDGE, CCH-69,
AT BANGALORE FOR AN OFFENCE PUNISHABLE UNDER
SECTION 138 OF THE NEGOTIABLE INSTRUMENT ACT AGAINST
PETITIONER AND JUDGMENT DATED 21.09.2016 IN
C.C.NO.3975/2015, BEFORE THE HON'BLE 13TH ACMM,
BANGALORE AND ACQUIT THE PETITIONER/ACCUSED FROM
THE CHARGES AGAINST HIM UNDER SECTION 138 OF THE
NEGOTIABLE INSTRUMENT ACT.
THIS PETITION HAVING BEEN RESERVED FOR ORDERS,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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CRL.RP No. 1081 of 2018
CAV ORDER
(PER: HON'BLE MR JUSTICE V SRISHANANDA)
Heard Sri Rishi Pal Singh Varma, learned counsel for the
revision petitioner and Sri Chandrashekar P.Patil, learned
counsel for respondent Nos.1(A to C).
2. Accused who is convicted for the offence punishable
under Section 138 of the Negotiable Instruments Act, 1881 in
C.C.No.3975/2018 confirmed in Crl.A.No.1154/2016 is the
revision petitioner.
3. Facts of the case which are utmost necessary for disposal
of the present revision petition are as under:
A private complaint under Section 200 of the Code of
Criminal Procedure came to be lodged with the jurisdictional
Magistrate alleging commission of an offence punishable under
Section 138 of the Negotiable Instruments Act, 1881, by
contending that complainant and the accused are acquainted
with each other for several years.
4. Taking advantage of such acquaintance, accused said to
have approached the complainant for financial assistance in a
sum of Rs.3,00,000/- agreeing to repay the said loan amount
within two months with interest at 16% per annum.
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CRL.RP No. 1081 of 2018
5. The complainant, considering the request of the accused
lent the loan of Rs.3,00,000/- to the accused by way of cash on
24.10.2014 which was duly acknowledged by the accused and
after receipt of the amount, accused failed to repay the same
as agreed.
6. On persistent demands, accused said to have issued a
post dated cheque bearing No.643006 dated 24.11.2014 in a
sum of Rs.3,00,000/- drawn on State Bank of India, West of
Chord Road Branch, Bengaluru, which on presentation came to
be dishonoured with an endorsement 'funds insufficient' on
26.11.2014. Accused was demanded to pay the said amount
by issuing a legal notice.
7. Despite service of notice, there was no compliance to the
callings of the notice and therefore, complainant has sought for
action.
8. On receipt of the complaint, learned Trial Magistrate
summoned the accused and recorded the plea. Accused
pleaded not guilty. Therefore, trial was held.
9. In order to prove the case of the complainant,
complainant got examined himself as P.W.1 and placed on
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record seven documents which were exhibited and marked as
Exs.P.1 to P.7, comprising of cheque, bank endorsement,
notice, postal receipt, postal acknowledgment, complaint and
letter.
10. As against the material evidence placed on record by the
complainant, accused got examined himself as D.W.1 and
placed on record fourteen documents which were exhibited and
marked as Exs.D.1 to D.14 comprising of letters, receipts,
notice, reply notice, postal acknowledgment, blank cheque
(original), statement of account, Xerox copy of the cheque and
endorsement.
11. On conclusion of recording of evidence, accused
statement as is contemplated under Section 313 of the Code of
Criminal Procedure was also recorded.
12. Thereafter, learned Trial Magistrate heard the arguments
of the parties and by following the dictum of the Hon'ble Apex
Court in the case of Krishna Janardhan Bhat vs. Dattatraya
G. Hegde reported in AIR 2008 SC 1325 and also taking into
consideration the principles of law enunciated in the case of
Rangappa vs. Sri Mohan reported in (2010)11 SCC 441,
while raising the presumption under Section 139 of the
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CRL.RP No. 1081 of 2018
Negotiable Instruments Act, 1881, by the considered judgment
dated 21.09.2016, convicted the accused and sentenced him as
under:
"Acting under Section 255(2) Cr.P.C, the accused is
convicted for the offence punishable under Section 138 of
Negotiable Instruments Act.
The accused shall pay a fine of Rs.4,00,000/-. In default of
payment of said fine amount, the accused shall undergo
simple imprisonment for six months.
Out of the said amount, accused shall be paid
Rs.3,95,000/- to the complainant as compensation, as
provided under Section 357 of Cr.P.C and Rs.5,000/- shall
be remitted to the State as fine."
13. Being aggrieved by the judgment of conviction and
sentence, accused filed an appeal before the District Court in
Criminal Appeal No.1154/2016.
14. Learned Judge in the First Appellate Court, after securing
the records, heard the arguments of the parties in detail and on
re-appreciation of the material evidence on record, by the
considered judgment dated 09.08.2018, dismissed the appeal,
inter alia holding in paragraph Nos.12(c) to 12(g) as under:
"12(c) The learned counsel for the accused had
raised a contention that the Bank endorsement, marked as
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CRL.RP No. 1081 of 2018
Ex.P2, is not a genuine endorsement as it does not bear
any seal or signature of the concerned Bank or its Manager.
However, in this regard, it is pertinent to note that Ex.P2 is
a Computer generated document, as such, as contended by
the learned counsel for the respondent, it does not bear the
signature of the concerned Manager. Even if for a moment,
the above said contention of the learned counsel for the
accused is accepted, the accused was at liberty to summon
and examine the Manager of the concerned Bank to
substantiate his claim that Ex.P2-Endorsement, is a created
document, but the accused has not done so. Therefore, the
above said contention of the learned counsel for the
accused cannot be accepted and the decisions relied on by
the learned counsel for the accused in that regard would
not help the case of the accused.
12(d) It was also contended by the learned counsel
for the accused that, if at all Ex.P1-cheque was issued to
respondent/complainant, it would have been mentioned in
the statement of accounts pertaining to the accused,
marked as Ex.D11. In so far as this contention is
concerned, on perusal of Ex.D11, it is to be seen that,
there is no mention even with regard to the fact, as
contended by the accused that the said cheque was issued
to the Society at the time of availment of loan. Hence, the
above said contention of the learned counsel for the
accused cannot be accepted. Moreover, a letter stated to
have been addressed by the accused to the Manager of
State Bank of India, marked as Ex.D12, it is to be seen that
it is dated 22-02-2016, whereas the present complaint
against the accused has been filed on 12-01-2015.
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CRL.RP No. 1081 of 2018
Therefore, Ex.D12 which is subsequent to the filing of the
complaint, cannot be considered.
12(e) One more contention urged by the learned
counsel for the accused is that, in Ex.D14-document, the
Account Number bears All Zeros (17 Zeros) and as such
there is no such account of the accused in the State Bank
of India. However, it is not known under which context the
said document (Ex.D14) was produced and for what
purpose. Moreover, the accused has not examined the
Manager of the said Bank in that regard. Hence, the above
said contention of the learned counsel for the accused
cannot be accepted.
12(f) It was further contended by the learned
counsel for the accused that, the complainant had filed
insolvency case in I.C.No.46/2009 and as such it was
contended that the complainant had no capacity to lend the
money in question to the accused. However, in this regard,
the accused has not produced any documents to
substantiate that the complainant had become insolvent.
On the other hand, it is to be seen from the perusal of the
cross-examination portion of PW.1 by the counsel for the
accused that, a suggestion has been put to PW.1, the
complainant that the accused had availed loan of only
Rs.50,000/- from the complainant. The said suggestion is
to be found at unnumbered Page No.7 of the deposition of
PW.1. Therefore, the contention of the accused that the
complainant had no financial capacity to lend the amount in
question to the accused, cannot be accepted. Further more,
it is to be seen that Exs.D7 and D.8, which are stated to be
the legal notice and reply to the legal notice, have come
into existence after the institution of the present complaint
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CRL.RP No. 1081 of 2018
by the complainant under Sec.200 of Cr.P.C., dated 12-01-
2015. Therefore, Ex.D7 and 8 would not have any bearing
upon the case on hand.
12(g) The accused has not disputed the fact that,
Ex.P1-cheque in question is the cheque pertaining to his
account and that Ex.P1(a) is his signature. Such being the
case, it was for the accused to offer explanation under what
circumstances the said cheque reached the hands of the
complainant. But the explanation given by the accused that
the said cheques were given to the Society and in turn it
has been misused by the complainant, it not satisfactory
and it has not been substantiated by any satisfactory
evidence. Hence, a presumption has to be drawn that
Ex.P1-cheque was issued by the accused to the
complainant in connection with the money transaction as
contended by the complainant. As such, the findings of the
learned trial Judge in the impugned judgment, is in
consonance with the facts of the case. Therefore, I do not
see any grounds to interfere with the findings of the
learned trial Judge. Accordingly, I hold point Nos.1 and 2 in
the NEGATIVE."
15. Being further aggrieved by the same, accused is before
this Court in this revision petition.
16. Learned counsel for the revision petitioner, after
addressing oral arguments has furnished the written
submission. Important points are as under:
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"1. Which bank issues the cheque return memo
under Section 146 NI Act?
2. Whether seal and signature of bank are
mandatory under Section 146 NI Act?
3. Hence dishonour itself remains unproved.
4. Dishonour itself not legally proved - hence
conviction unsustainable.
5. Cheque return memo of the accused exhibit has
to be taken for this case and not the cheque return
memo of complainant Ex. P-2."
17. In support of his arguments, learned counsel placed on
record the judgment of the Kerala High Court in the case of
P.Soman vs. Thomas Paul reported in LAWS(KER)-2002-5-
31 wherein, at paragraph-5, it is held as under:
"(5.) It is in this background that Ext. P2 has to be
perused. It is a letter sent to the complainant from the
complainants bank through which Ext. P1 cheque had
been presented for payment. What is done through Ext.
P2 is the conveyance of the information received from
the accuseds bank. It is categorically stated in Ext. P2
that the cheque was returned unpaid for the reason of
insufficiency of funds. According to me, in the absence of
any counter evidence, nothing more is required to
convince the court that the dishonour of the cheque took
place for want of funds. It is more so in view of the two
circumstances mentioned in the two earlier paragraphs.
Of course, in order to succeed in a case of this nature
the complainant has to convince the court, without room
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CRL.RP No. 1081 of 2018
for doubt, that the dishonour of the cheque was for
insufficiency of funds. The evidence required therefore
may take many forms. It is not an inflexible rule that in
an action under S.136 of the Act, the complainant should
invariably produce the memo of dishonour issued by the
Bank in which the accused has his account certifying that
the reason for dishonour is want of funds."
18. He also places reliance on the judgment of the co-
ordinate Bench of this Court in the case of Rasheed Ahamed
vs. Shoukath Hussain reported in AIR Online 2024 KAR
1133, invited the attention of this Court to paragraphs 20 to
22 and 26 which reads as under:
"20. Keeping in mind the ratio in the above
decisions, it is necessary to examine whether complainant
has proved his financial capacity to lend a sum of Rs.
8,45,000/- on 20.6.2011. During the course of his cross-
examination, the complainant has deposed that since 1995
he is running liquor business in the name and style of H. R
Bar. He has maintained account with regard to the said
business. He is owning account in ICICI, SBM, Canara, IDBI
and SBI Banks. He has admitted that, except the Bar he is
not having any other source of income. He is an income tax
assessee and filing returns every year.
21. During his cross-examination, the accused has
admitted that complainant is running a Bar. Though he has
admitted that complainant is living in his own house and
has also rented out 4 premises, he has expressed
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ignorance to the suggestion that the complainant is also
owning agricultural land. However, during the course of his
evidence, complainant has not deposed regarding owning
agricultural land. Complainant has not produced any
documents with regard to the income derived from liquor
business, the exact rent received by him from letting out 4
premises and also owning agriculture land and getting any
income. He has also not produced his income tax returns to
show the exact income, expenditure and savings. It would
also have helped him to show that he has lent Rs.
8,45,000/- to the accused by way of hand loan as he is
expected to show the details of Sundry debtors. Despite
the accused challenging his financial capacity and cross-
examining him extensively on that aspect, for reasons best
known to him, complainant has not chosen to produce any
documentary evidence to prove his income. Though in the
reply notice, the complainant has not challenged his
financial capacity, as he has done so during the trial, it was
incumbent upon the complainant to place some evidence to
prove his income to show that on 20.06.2011 he had cash
in a sum of Rs. 8,45,000/- and he paid the same to the
accused by way of hand loan. Consequently, the
complainant has failed to prove that he has lent Rs.
8,45,000/- to the accused and the cheque in question was
issued towards repayment of the same.
22. On the other hand, during the course of evidence
the accused has deposed that while borrowing Rs.
3,00,000/- from the complainant during 2008, he had
issued a blank cheque and though he repaid the same
during 2011, complainant failed to return the blank cheque
and utilizing the same he has filed this complaint.
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Complainant has also claimed that earlier to the present
transaction, on several occasions accused has borrowed
hand loan from him and repaid and claimed that during
January 2011, accused borrowed a sum of Rs. 3,00,000/-
and repaid it in two installments in the month of April 2011.
Whether the earlier transaction was in the year 2008 or
2011, fact remains that there used to be monetary
transaction between the complainant and accused. Accused
has claimed that he had issued Ex. P1 in a blank form
during 2008 when he borrowed Rs. 3,00,000/-.
26. In the above facts and circumstances, trial Court
is justified in dismissing the complaint and this Court finds
no justifiable grounds to interfere with the conclusions
arrived by the trial Court. In the result, the appeal fails and
accordingly, the following:
ORDER
(i) Appeal filed by the complainant under Section
378(4) of Cr. P.C. is dismissed.
(ii) The impugned judgment and order dated
17.06.2015 in C.C. No. 1454/2012 on the file of
JMFC-II, Davanagere is confirmed.
(iii) The Registry is directed to send back the trial
Court records along with copy of this judgment
forthwith.”
19. Further, learned counsel for the revision petitioner also
relied on the following judgments, in support of his arguments.
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CRL.RP No. 1081 of 2018
(i) Criminal Appeal No.1789/2004 (Citibank vs.
RPS Varma) on the file of High Court of
Karnataka, Bengaluru.
(ii) Criminal Appeal No.815/2010 (A.M.
Govindegowda vs. B.V.Ravi) on the file of High
Court of Karnataka, Bengaluru.
(iii) Criminal Appeal No.431/2017 (Kanthar Raj vs.
Sham Shudin) on the file of High Court of
Karnataka, Bengaluru.
(iv) Criminal Appeal No.2789/2009 (Thippeswamy
vs. Gopalshetty K. Shettar) on the file of High
Court of Karnataka, Bengaluru.
(v) Insolvency Case No.46/2009 (B.S.Ravi vs.
Manjula and others) on the file of the City Civil
Judge, Bengaluru.
(vi) O.A. No.36/2010 (State Bank of Mysore,
Bangalore vs. B.S.Ravi) on the file of Debts
Recovery Tribunal, Bengaluru.
20. Per contra, learned counsel for the respondent/
complainant supports the impugned judgment by contending
that, prior to introduction of Electronic Clearance System in the
banks, the procedure contemplated for encashing the cheque
was by physical method wherein, cheque would be sent to the
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clearing house and there would be physical verification of
records including ledgers. Later on, necessary endorsement
would be issued which would require the signature of the
banker of the accused as well as the banker of the complainant,
through which the cheque in question would be sent for
collection.
21. But, after introduction of Electronic Clearance System,
the physical and manual intervention would not be there and
the cheque would be electronically cleared by comparing with
the data available with the banker of the accused as well as the
banker of the complainant and necessary endorsement would
be issued which requires no specific signature of any of the
Officers of the bank.
22. Therefore, the contentions urged on behalf of the revision
petitioner/accused cannot be countenanced in law and thus
sought for dismissal of the revision petition.
23. Having heard the arguments of both sides, this Court
perused the material on record, meticulously.
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24. On such perusal of the material on record, there is no
dispute that the cheque marked at Ex.P.1 is belonging to the
accused and signature found therein is that of the accused.
25. The bank endorsement marked at Ex.P.2 contains the
cheque number marked at Ex.P.1. The sort code, ISN, branch
code, bank name and inward of the cheque is also mentioned.
Similarly, the date of presentation of the cheque for collection,
amount of the cheque, reason for dishonor is also mentioned.
26. Therefore, the first contention on which the learned
counsel for the revision petitioner has stated that there could
not be any criminal prosecution for dishonor of the cheque,
inasmuch as the bank memo did not contain proper
endorsement of dishnour cannot be countenanced in law.
Likewise, the contention that the seal and signature of the bank
was a mandatory requirement when the cheque was sent for
manual collection cannot also be accepted.
27. In view of the electronic clearance, the seal and signature
is not mandatory and therefore, seal and signature, official
mark etc., on Ex.P.2 cannot be a ground to reject the
complaint.
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28. Since the complainant enjoys the presumption under
Section 139 of the Negotiable Instruments Act, 1881, if at all
the accused is of the opinion that bank endorsement vide
Exhibit P-2 is incomplete or incorrect, he could have summoned
his banker to establish that he had sufficient money in his
account and the cheque was not presented to his banker at all
for collection.
29. Therefore, the ground that in view of Section 146 of the
Negotiable Instruments Act, 1881, complaint is not
maintainable, cannot also be countenanced in law.
30. Moreover, accused admits that Exhibit P-2 is the
endorsement issued by the banker in respect of dishonour of
cheque at Exhibit P-1. Thus, argument that Exhibit P-2 is not
in consonance with Section 146 of the Negotiable Instruments
Act is only an afterthought inasmuch as DW-1(accused) has
specifically admitted in his cross-examination that Exhibit P-2
which is the bank endorsement is in respect of dishonour of
Ex.P-1/cheque. Accused further admitted in his cross-
examination that he has not complained to his banker that
Exhibit P-2 is incorrect. He also admits that he has not taken
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any action against his banker for having wrongly issued Exhibit
P-2.
31. What is the probative value of cheque return memo after
electronic clearance system has been adopted by the banks
was subject matter for decision before the Hon’ble Delhi High
Court.
32. In the case of Guneet Bhasin vs. State (NCT of Delhi)
reported in 2022 SCC OnLine Del 3967, at paragraph-9, it
has been held as under:
“9. The cheque return memo is a memo informing the
payee’s banker and the payee about the dishonour of a
cheque. When the cheque is dishonoured, the drawee bank
immediately issues a cheque return memo to the payee’s
banker mentioning the reason for non-payment. The
purpose of the cheque return memo is to give the
information of the holder of the cheque that his cheque on
presentation could not be encashed due to the variety of
reasons as mentioned in the cheque return memo. As per
the section 146 of the NI act, the cheque return memo on
presentation presumed the fact of dishonour of the cheque
unless and until such fact is disapproved. Neither section
138 nor the section 146 of the NI act has prescribed any
particular form of cheque return memo. The section 138 of
the NI Act does not mandate any particular form of cheque
return memo which is nothing but a mere information
given by the Banker of the due holder of a cheque that the
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cheque has been returned as unpaid. If the cheque return
memo is not bearing any official stamp of the bank, it does
not render the cheque return memo as invalid or illegal.
The cheque return memo is not a document which is not
required to be covered under section 4 of the Bankers Book
(Evidence) Act, 1891. If there is any infirmity in the cheque
return memo, it does not render entire trial under section
138 of the NI Act as nullity.”
33. Similar view is also taken by Hon’ble High Court of
Calcutta in the case of Pravin Kumar Tiwari V. Ajit Chandra
Mandal, reported in 2025 SCC OnLine Cal 779.
34. Moreover, if sufficient money was available in the account
of the revision petitioner and the bank has wrongly dishonoured
the cheque, soon after receipt of the notice or at least on first
appearance, as a bonafide drawer of the cheque, accused could
have repaid the amount covered under Ex.P-1.
35. Insofar as the presumption under Section 139 of the
Negotiable Instruments Act, 1881, is concerned, time and
again, the Hon’ble Apex Court has held that, once the execution
of the cheque is admitted, initial presumption under Sections
118 and 139 of the Negotiable Instruments Act, 1881, can be
invoked by the Trial Magistrate which can be rebutted by
accused by placing sufficient rebuttal evidence.
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36. The principles of law enunciated in the case of Rangappa
supra, and Rajesh Jain vs. Ajay Singh reported in (2023)10
SCC 148 and latest judgment of the Hon’ble Apex in the case
of Sanjabij Tari vs. Kishore S. Borcar and another reported
in 2025 SCC OnLine SC 2069 would aptly fortify the said
legal position.
37. What is the scope of revisional jurisdiction is also spelt
out by the Hon’ble Apex Court in the case of Sanjabij Tari
supra wherein, it has been held as under:
“15. In the present case, the cheque in question has
admittedly been signed by respondent No. 1-accused.
This court is of the view that once the execution of the
cheque is admitted, the presumption under section 118
of the Negotiable Instruments Act, that the cheque in
question was drawn for consideration and the
presumption under section 139 of the Negotiable
Instruments Act, that the holder of the cheque received
the said cheque in discharge of a legally enforceable
debt or liability arise against the accused. It is pertinent
to mention that observations to the contrary by a two-
judge Bench in Krishna Janardhan Bhat v. Dattatraya
G. Hegde [(2008) 141 Comp Cas 665 (SC); (2008) 4
SCC 54; (2008) 2 SCC (Cri) 166; 2008 SCC OnLine SC
106.] have been set aside by a three-judge Bench in
Rangappa v. Sri Mohan [(2010) 11 SCC 441; (2010) 4
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SCC (Civ) 477; (2011) 1 SCC (Cri) 184; 2010 SCC
OnLine SC 583.]
16. This court is further of the view that by creating
this presumption, the law reinforces the reliability of
cheques as a mode of payment in commercial
transactions.
17. Needless to mention that the presumption
contemplated under section 139 of the Negotiable
Instruments Act, is a rebuttable presumption. However,
the initial onus of proving that the cheque is not in
discharge of any debt or other liability is on the
accused/drawer of the cheque (see : Bir
Singh v. Mukesh Kumar [(2019) 5 Comp Cas-OL 560
(SC); (2019) 4 SCC 197; (2019) 2 SCC (Cri) 40;
(2019) 2 SCC (Civ) 309; 2019 SCC OnLine SC 138.] .
18. The judgment of this court in APS Forex Services P.
Ltd. v. Shakti International Fashion Linkers [(2020) 12
SCC 724; (2020) 4 SCC (Cri) 505; 2020 SCC OnLine SC
193.] relied upon by learned counsel for respondent No.
1-accused only says that the presumption under section
139 of the Negotiable Instruments Act is rebuttable and
when the same is rebutted, the onus would shift back
to the complainant to prove his financial capacity, more
particularly, when it is a case of giving loan by cash.
This judgment nowhere states, as was sought to be
contended by learned counsel for respondent No. 1-
accused, that in cases of dishonour of cheques, in lieu
of cash loans, the presumption under section 139 of the
Negotiable Instruments Act does not arise.
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Approach of some courts below to not give effect to the
presumptions under sections 118 and 139 of the
Negotiable Instruments Act, is contrary to mandate of
Parliament
21. This court also takes judicial notice of the fact that
some district courts and some High Courts are not
giving effect to the presumptions incorporated in
sections 118 and 139 of the Negotiable Instruments
Act, and are treating the proceedings under the
Negotiable Instruments Act, as another civil recovery
proceedings and are directing the complainant to prove
the antecedent debt or liability. This court is of the view
that such an approach is not only prolonging the trial
but is also contrary to the mandate of Parliament,
namely, that the drawer and the bank must honour the
cheque, otherwise, trust in cheques would be
irreparably damaged.
No documents and/or evidence led with regard to the
financial incapacity of the appellant.
22. It is pertinent to mention that in the present case,
respondent No. 1- accused has filed no documents
and/or examined any independent witness or led any
evidence with regard to the financial incapacity of the
appellant- complainant to advance the loans in
question. For instance, this court in Rajaram v.
Maruthachalam [(2023) 16 SCC 125] has held that the
presumptions under sections 118 and 139 of the
Negotiable Instruments Act, can be rebutted by the
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accused examining the Income-tax Officer and bank
officials of the complainant/drawee.
When the evidence of PW-1 is read in its entirety, it
cannot be said that the appellant-complainant had no
wherewithal to advance loan.
27. It is well settled that in exercise of revisional
jurisdiction, the High Court does not, in the absence of
perversity, upset concurrent factual findings (see : Bir
Singh v. Mukesh Kumar [(2019) 4 SCC 197]). This
court is of the view that it is not for the revisional court
to re-analyse and re-interpret the evidence on record.
As held by this court in Southern Sales and Services v.
Sauermilch Design and Handels GmbH [(2008) 14 SCC
457], it is a well-established principle of law that the
revisional court will not interfere, even if a wrong order
is passed by a court having jurisdiction, in the absence
of a jurisdictional error.”
38. Taking note of these aspects of the matter, the
contentions urged on behalf of the revision petitioner that there
is no proper material evidence to show that the bank
endorsement vide Ex.P.2 is not in order and therefore, there
could not be any offence under Section 138 of the Negotiable
Instruments Act, 1881 cannot be countenanced in law.
39. Thus, on cumulative consideration of the material on
record, in the light of the limited revisional jurisdiction, this
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Court having noted that the cheque belongs to accused and
signature is not in dispute the transaction between the
complainant and accused is also established, the complainant
has discharged the initial burden so as to invoke the
presumption available to the complainant under Section 139 of
the Negotiable Instruments Act, 1881.
40. The rebuttal evidence placed on record in the form of oral
testimony of D.W.1 and documentary evidence vide Exs.D.1 to
D.4 is not sufficient to rebut the presumption available to the
complainant inasmuch as in the cross-examination of D.W.1 he
has specifically admitted that he had borrowed sum of
Rs.50,000/- from the complainant and he has answered that he
has repaid the same on 26.09.2015.
41. Accused has specifically admitted that he has issued two
blank cheques to the Society of the complainant as security and
one such cheque has been misused by the complainant.
42. Accused also admits that he has not maintained any
counterfoil to establish that the cheque in question was issued
in blank as security. He admits that Exhibit D-6 has been
issued on 03.11.2015 by which time the loan obtained from
Aditya Society has been cleared in full. He admits that in
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Exhibit D-6 there is no demand for return of the two blank
cheques.
43. Further, he admits that in Exhibit D-8 there is no demand
for return of the two cheques which were given in blank as
security for the loan obtained from Aditya Society. He further
admitted that for the alleged misuse of Exhibit P-1/cheque, he
has not taken any criminal action against the complainant.
44. Therefore, the oral and documentary evidence of the
accused is not sufficient to rebut the presumption available to
the complainant and as such, conviction of the accused for the
offence under Section 138 of the Negotiating Agreement Act,
upheld by the First Appellate Court, needs no interference in
this revision petition.
45. Hence, the following:
ORDER
Revision Petition is meritless and is hereby dismissed.
Sd/-
(V SRISHANANDA)
JUDGEkcm
