SRI RIYAZ RAXIDI vs SMT SHILPA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 6 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MRS. JUSTICE GEETHA K.B.
CRIMINAL REVISION PETITION NO. 762 OF 2026
BETWEEN:
SRI. RIYAZ RAXIDI,
S/O M.A. ABUBAKAR,
AGED ABOUT 48 YEARS,
PROPRIETOR MALLAPADPU TRADERS,
MALLAPADPU HOUSE,
KOTEKAR, KEENYA POST,
DAKSHINA KANNADA DISTRICT - 574 232.
…PETITIONER
(BY SRI.JAYASHYAM JAYASIMHA RAO, ADVOCATE FOR
SRI. PRAVEEN N., ADVOCATE)
AND:
SMT. SHILPA,
W/O D.G. SHIVAKUMAR,
AGED ABOUT 46 YEARS,
R/O DEVAVRUNDA VILLAGE
AND POST, MUDIGERE TALUK,
CHIKKAMAGALUR - 577 132.
…RESPONDENT
(BY SRI. LINGARAJU K.R., ADVOCATE)
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THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO A. SET ASIDE THE JUDGMENT DATED 02.03.2026
PASSED BY THE LEARNED PRL. DISTRICT AND SESSIONS
JUDGE, CHIKKAMAGALURU IN CRL.A NO.112/2025 AT
ANNEXURE - A AND ETC.,
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE GEETHA K.B.
ORAL ORDER
This is the revision petition filed under Section 438
r/w 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(in short, 'BNSS, 2023') by the revision petitioner/ accused
praying for setting aside the judgment of Conviction and
order of Sentence dated 11.07.2025 passed in CC
No.1031/2021 on the file of Principal Civil Judge and JMFC,
Mudigere (in short, 'trial Court) which is confirmed in the
appeal in Criminal Appeal No.112/2025 dated 02.03.2026
on the file of Principal District and Sessions Judge,
Chikkamagalur (in short, 'appellate Court').
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2. The parties would be referred with their ranks,
as they were before the trial Court for the sake of
convenience and clarity.
3. The complainant has filed the complaint under
Section 200 Cr.PC before the trial Court against the
accused for the offence punishable u/s 138 of Negotiable
Instruments Act, 1918 (in short, 'NI Act').
4. The case of the complainant in nutshell is that
the accused having approached the complainant and has
sought for financial facility for his immediate necessity and
borrowed a sum of Rs.5,00,000/- and towards its
repayment, the accused has issued the cheque bearing
No.612276 (subject cheque) drawn on State Bank of
Patiyala, Kankanadi branch for a sum of Rs.5,00,000/-
dated 31.01.2014. The complainant presented the said
cheque for encashment through Syndicate Bank, Mudigere
branch and it was dishonoured with an endorsement
'payment stopped by drawer' dated 11.03.2014.
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Immediately, the complainant demanded the accused for
payment and issued a legal notice through her counsel on
25.03.2014, which was served on the accused on
01.04.2014. Inspite of service of notice, the accused has
not repaid the cheque amount, but has issued an
untenable reply to notice dated 15.04.2014. Hence, the
present complaint is filed on 02.06.2015.
5. There was some delay in filing the complaint
and it was condoned by the trial Court.
6. After recording the sworn statement of the
complainant, the trial Court has taken the cognizance of
the offence and issued summons to the accused.
7. After the issuance of summons, the accused
appeared through his counsel and pleaded not guilty of the
offence, when the accusation leveled against him were
read and explained to him.
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8. Afterwards, the statement under Section 313
Cr.PC was recorded; the complainant was cross-examined
and let in defence evidence. After hearing the arguments,
the trial Court convicted the accused for the offence
punishable under Section 138 of NI Act and directed him
to pay a sum of Rs.8,00,000/- as fine; out of which a sum
of Rs.7,98,000/- shall be payable to the complainant as
compensation and remaining Rs.2,000/- shall be defrayed
to the state expenses.
9. Aggrieved by the said judgment of the trial
Court, the complainant has preferred the appeal before
the appellate Court.
10. After hearing both sides, the appeal was also
dismissed by confirming the judgment of conviction and
order of sentence.
11. Aggrieved by the same, the revision petitioner
is before this Court.
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12. Heard arguments of both sides.
13. The learned counsel for the revision petitioner
would submit that the case of the complainant is that the
accused has issued a cheque for Rs.5,00,000/- dated
31.01.2014 for the amount received by him as hand loan
from the complainant. When the said cheque was
presented for encashment on 08.03.2014, it was returned
with an endorsement as per Ex.P2 'payment stopped by
the drawer'. Afterwards, the complainant issued a legal
notice dated 25.03.2015 as per Ex.P3 to the accused,
making allegation that she has paid the hand loan by way
of cash to the accused. The accused has given reply as per
Ex.P5 and its copy is marked as Ex.D9. In that reply, the
accused has denied the hand loan by complainant to the
accused; he has taken the plea that the accused has no
financial capacity to lend such huge amount; the accused
is a timber merchant. In support of the said timber
transaction, the husband of complainant was assisting the
accused in his business. By smelting that the
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complainant's husband may misuse those cheques, on
30.07.2013 the accused has stopped the payment of those
three cheques, as per Ex.D8 and bank endorsement at
Ex.D7. Even then on 04.02.2014, the complainant has
presented the subject cheque bearing No.612276 for
encashment and it was encashed on 06.02.2014. Hence,
there was no offence at all.
14. The learned counsel for the accused would
further submit that the accused has summoned the details
of this cheque to the bank manager. The said application
was allowed on 20.01.2024, the bank manager came to
the Court and furnished two documents. In that statement
and in the documents produced by him, it is stated that
the complainant has presented the subject cheque dated
4.02.2014 and it was came for collection on 06.02.2014
and then she has withdrawn said amount on 24.02.2014.
Later it is learnt that it was wrong payment. Hence, from
the account of the husband of complainant on 01.01.2016
they have withdrawn the said amount. Even though the
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accused has given reply denying the financial capacity of
the complainant, denying the transaction between her and
also taken contention that the cheque in question was
already honoured; the complainant has reiterated the
averments made in the legal notice, in her complaint and
also in her evidence and thus it is cryptic. She has
suppressed those material facts. The learned counsel
would further submit that in the statement recorded under
Section 313 Cr.P.C, 5 questions were put to accused, and
amongst them, there were 4 mistakes.
15. The learned counsel for the revision petitioner
would further submit that he disputes the financial
capacity of the complainant in reply notice; also elicited
some facts on this point from the cross-examination of the
complainant. But, these facts were not appreciated by the
trial Court and the appellate Court.
16. The learned counsel for the revision petitioner
would further submit that by suppressing the factum of
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receipt of the amount from the bank and suppressing the
contention taken by the accused in his reply notice; the
complainant has presented the cheque once again before
the Court and as on the date of lodging up of complaint,
the amount of Rs.5,00,000/- was already credited to the
bank account of the complainant. Thus, she has played
fraud on the Court.
17. In this regard, he places reliance of the
judgments of the Hon'ble Apex Court in S.P. Chengalava
raya Naidu (dead) by LR's vs. Jagahnath (dead) by
LRs and others reported in 1994 1 SCC para - 6, which
reads as follows:
"6. The facts of the present case leave no
manner of doubt that Jagannath obtained the
preliminary decree by playing fraud on the
court. A fraud is an act of deliberate deception
with the design of securing something by taking
unfair advantage of another. It is a deception in
order to gain by another's loss. It is a cheating
intended to get an advantage. Jagannath was
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working as a clerk with Chunilal Sowcar. He
purchased the property in the court auction on
behalf of Chunilal Sowcar. He had, on his own
volition, executed the registered release deed
(Ex. B-15) in favour of Chunilal Sowcar
regarding the property in dispute. He knew that
the appellants had paid the total decretal
amount to his master Chunilal Sowcar. Without
disclosing all these facts, he filed the suit for the
partition of the property on the ground that he
had purchased the property on his own behalf
and not on behalf of Chunilal Sowcar. Non-
production and even non-mentioning of the
release deed at the trial is tantamount to
playing fraud on the court. We do not agree
with the observations of the High Court that the
appellants-defendants could have easily
produced the certified registered copy of Ex. B-
15 and non-suited the plaintiff. A litigant, who
approaches the court, is bound to produce all
the documents executed by him which are
relevant to the litigation. If he withholds a vital
document in order to gain advantage on the
other side then he would be guilty of playing
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fraud on the court as well as on the opposite
party.
18. The learned counsel for the revision petitioner
also places reliance on the judgment of Hon'ble Apex Court
in APS Forex Services (P) Ltd. vs. Shakti
International Fashion Linkers reported in (2020) 12
SCC 724 .
19. The learned counsel for the respondent/
complainant Sri Lingaraju K.R. would submit that the
alleged amount credited to the bank account of the
complainant during February-2014 is not from the bank
account of the accused. It was a wrong entry made by the
bank. It is an internal mistake of the bank. It was re-
credited to the bank from the account of the husband of
complainant. When the said amount was not credited from
the bank account of accused, he cannot take a defence
that already the cheque was honoured. The trial Court
and the appellate Court have clearly discussed on this
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point in their respective judgments. Hence, when one view
is taken on this point, the revisional Court cannot take a
contrary view in this revision because the jurisdiction of
revisional Court is limited. In this regard, he also places
reliance on the APS Forex Services Pvt. Ltd.'s cited
supra at para No.8.4.
20. The learned counsel for the respondent/
complainant would further submit that the financial
capacity of the complainant cannot be disputed merely
because she is a housewife. The complainant is the wife of
a coffee planter. There are catena of judgments that
merely because the complainant is a homemaker, her
financial capacity cannot be disputed. Thus, the
complainant has established her financial capacity which is
accepted by both the trial Court and the appellate Court.
21. He would further submit that the transaction
between the complainant's husband and the accused is
entirely different from the subject cheque transaction
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between the complainant and the accused. The
presumptions available in favour of complainant under
Section 118 and 139 of Negotiable Instruments Act were
not at all rebutted by the accused.
22. Having heard arguments of both sides, verifying
the revision petition papers, the trial Court and the
appellate Court records, the point that arises for
consideration is:
"Whether the revision petitioner establishes
perversity or grossly erroneousness in the
judgment of the trial court and appellate court or
the judgment of the trial court and appellate
court is glaringly unreasonable or wholly
unreliable or untenable and the judgment of the
trial court and appellate court considered
immaterial or irrelevant material or no material
or non-consideration of any relevant material or
judicial discretion has been exercised arbitrarily
or capriciously?"
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23. The finding of this Court on above point is in
Affirmative for the following:
REASONS
24. The revisional jurisdiction of this Court is very
limited. In this regard, this Court places reliance on the
Judgment of the Hon’ble Apex Court in the case of
Kuntegowda v/s Thurubaiah in Criminal Appeal
No.3654/2026, (Arising out of Special Leave Petition
(Criminal) No.2247 of 2024 dated 04.08.2026
reported in 2026 SCC OnLine SC 1485 . In the aforesaid
judgment, the Hon'ble Apex Court at paragraph Nos.7.1.
to 7.3 has discussed the revisional jurisdiction of this
Court, which reads as follows:
"7.1 This Court, in the State of
Maharashtra vs. Jagmohan Singh Kuldip Singh
Anand, (2004) 7 SCC 659 observed that the
High Court, in exercise of its revisional
jurisdiction, cannot embark upon an in-depth
roving re-examination of the oral evidence and
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medical evidence and come to a conclusion
contrary to the consistent one reached by two
courts below. In the facts of the present case,
in the impugned judgment, the High Court
gravely erred in upsetting the concurrent
findings of conviction of the trial court and the
Appellate Court by substituting its own
conclusions and reasoning on the merits of the
case and thereby erred in setting aside the
well-reasoned and correct judgment and orders
of the trial and appellate courts.
7.2 Upon perusal of the impugned
judgment and order dated 06.10.2023, it is
apparent that the High Court went into great
detail into each of the testimonies, documents
and merits of the case which could have been
avoided especially when the subject matter had
come under its revisional jurisdiction. Instead,
acting as an appellate Court, the High Court
deemed it fit to go into the merits of the case,
something which is generally impermissible
unless a glaring contradiction is apparent on
the face of record. In State of Kerala vs.
Puttumana Illath Jathavedan Namboodiri,
(1999) 2 SCC 452, while considering the scope
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of the revisional jurisdiction of the High Court
this Court has laid down the following:
"5.... In its revisional jurisdiction, the
High Court can call for and examine the
record of any proceedings for the
purpose of satisfying itself as to the
correctness, legality or propriety of any
finding, sentence or order. In other
words, the jurisdiction is one of
supervisory jurisdiction exercised by
the High Court for correcting
miscarriage of justice. But the said
revisional power cannot be equated
with the power of an appellate court
nor can it be treated even as a second
appellate jurisdiction. Ordinarily,
therefore, it would not be appropriate
for the High Court to reappreciate the
evidence and come to its own
conclusion on the same when the
evidence has already been appreciated
by the Magistrate as well as the
Sessions Judge in appeal, unless any
glaring feature is brought to the notice
of the High Court which would
otherwise tantamount to gross
miscarriage of justice. On scrutinizing
the impugned judgment of the High
Court from the aforesaid standpoint,
we have no hesitation to come to the
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conclusion that the High Court
exceeded its jurisdiction in interfering
with the conviction of the Respondent
by reappreciating the oral evidence...."
7.3. The contours for exercise of revisional
jurisdiction has been well settled by the judicial
dicta of this Court wherein time and again it has
been observed that the High Court shall not
interfere with the orders of the lower court
unless:
i. The order or finding of the lower court is
perverse, grossly erroneous, glaringly
unreasonable or wholly unreliable or
untenable in law.
ii. The lower court has passed the impugned
order after considering an immaterial or
irrelevant material or no material at all.
iii. There is a non-consideration of any
relevant material or the judicial
discretion has been exercised arbitrarily or
capriciously."
25. Thus, only if the judgment of the trial Court
confirmed by appellate Court is perverse or grossly
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erroneous, are grossly unreasonable, or wholly unreliable,
or wholly untenable, or the trial Court considered an
immaterial or irrelevant, material or no material or not at
all relevant material or judicial discretion has been
exercised arbitrarily and capriciously, the revisional Court
can interfere with such judgment.
26. The alleged offence in this case is the offence
under Section 138 of NI Act. The learned counsel for the
respondent would places reliance on para 7 of the Hon'ble
Apex Court in APS Forex Services Pvt. Ltd . cited supra.
It is extracted as follows:
"7. Coming back to the facts in the present case
and considering the fact that the accused has
admitted the issuance of the cheques and his
signature on the cheque and that the cheque in
question was issued for the second time, after
the earlier cheques were dishonoured and that
even according to the accused some amount
was due and payable, there is a presumption
under Section 139 of the N.I. Act that there
exists a legally enforceable debt or liability. Of
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course such presumption is rebuttable in nature.
However, to rebut the presumption the accused
was required to lead the evidence that full
amount due and payable to the complainant has
been paid. In the present case, no such
evidence has been led by the accused. The story
put forward by the accused that the cheques
were given by way of security is not believable
in absence of further evidence to rebut the
presumption and more particularly the cheque
in question was issued for the second time, after
the earlier cheques were dishonoured.
Therefore, both the courts below have
materially erred in not properly appreciating and
considering the presumption in favour of the
complainant that there exists legally enforceable
debt or liability as per Section 139 of the N.I.
Act. It appears that both, the Learned Trial
Court as well as the High Court, have committed
error in shifting the burden upon the
complainant to prove the debt or liability,
without appreciating the presumption under
Section 139 of N.I. Act. As observed above,
Section 139 of the Act is an example of reverse
onus clause and therefore once the issuance of
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the cheque has been admitted and even the
signature on the cheque has been admitted,
there is always a presumption in favour of the
complainant that there exists legally enforceable
debt or liability and thereafter it is for the
accused to rebut such presumption by leading
evidence."
27. The learned counsel for the revision petitioner
places reliance on the Hon'ble Apex Court in APS Forex
Services Pvt. Ltd . cited supra at para 8.4. It is extracted
as follows:
"8.4. Now so far as the reliance is placed by the
learned counsel appearing on behalf of the
accused on the decision of this Court in
Basalingappa, on going through the said
decision, we are of the opinion that the said
decision shall not be applicable to the facts of
the case on hand and/or the same shall not be
of any assistance to the accused. In that case,
before this Court, the defence by the accused
was that the cheque amount was given by the
complainant to the accused by way of loan.
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When the proceedings were initiated under
Section 138 of the NI Act, the accused denied
the debt liability and the accused raised the
defence and questioned the financial capacity of
the complainant. To that, the complainant failed
to prove and establish his financial capacity.
Therefore, this Court was satisfied that the
accused had a probable defence and
consequently, in absence of the complainant
having failed to prove his financial capacity, this
Court acquitted the accused. In the present
case, the accused never questioned the financial
capacity of the complainant. We are of the view
that whenever the accused has questioned the
financial capacity of the complainant in support
of his probable defence, despite the
presumption under Section 139 of the NI Act
about the presumption of legally enforceable
debt and such presumption is rebuttable,
thereafter, the onus shifts again on the
complainant to prove his financial capacity and
at that stage, the complainant is required to
lead the evidence to prove his financial capacity,
more particularly when it is a case of giving loan
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by cash and thereafter issuance of a cheque.
That is not the case here."
28. On careful perusal of the principles noted in the
aforesaid judgment and the plain reading of Section 138
and 139 of NI Act, the following ingredients are to be
fulfilled to attract the offence under Section 138 of NI Act:
(i) that there is legally enforceable debt;
(ii) that the cheque was drawn from the
account of bank for the discharge in whole
or in part of any debt or other liability;
(iii) that the cheque has been presented to the
bank within a period of six months from the
date on which it is drawn or within the
period of its validity, whichever is earlier;
(iv) that cheque so issued has been returned
due to insufficiency of funds;
(v) the payee or the holder in due course of the
cheque makes a demand for the payment
of the said amount of money by giving a
notice in writing to the drawer of the
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cheque, within 15 days of the receipt of
information by him from the bank regarding
the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make
payment of the said amount of money to
the payee or the holder in due course of the
cheque within 15 days of the receipt of the
said notice.
29. If the aforementioned ingredients are satisfied,
then there shall be a presumption under section 139 of the
N.I. Act. Always, the cheque is a bill of exchange and thus
there shall be a presumption under Section 118 of the NI
Act. But the presumptions available under Section 118 and
139 of the NI Act are rebuttable presumptions.
30. It is contention of the complainant that the
accused has borrowed a sum of Rs.5,00,000/- from the
complainant for his immediate necessity and towards his
repayment, the accused has issued the subject cheque
dated 31.01.2014; when it was presented for encashment
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on 11.03.2014 through Syndicate Bank, Mudigere branch,
it was returned that the cheque was dishonoured with an
endorsement 'payment stopped by drawer' on 11.03.2014;
then the complainant has issued legal notice dated
25.03.2014 and it was served upon the accused on
01.04.2014 and then the accused has given reply on
15.04.2014. He has not disputed the cheque bears his
signature and it is from his bank account.
31. The complaint was received on 08.07.2014.
Thus, they was some delay in filing the complaint, which
was already condoned by the trial Court. Thus, clause
Nos.(iii) to (vi) were fulfilled.
32. There are several judgments of Hon'ble Apex
Court holding that even though the payment is stopped by
the drawer, the offence under Section 138 of N.I. Act
would be attracted. When once the complainant is able to
prove three clauses and the statutory presumption under
Section 139 of N.I. Act is automatically attracted in favour
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of the complainant that there exists a legally recoverable
debt or other liability and that the cheque was issued for
its discharge in whole or part.
33. It is contention of the complainant that the
accused has not rebutted the statutory presumption
available in favour of the complainant. However, it is the
case of the accused that he has rebutted the said
presumption by taking the contention in the reply to legal
notice that the complainant has no financial capacity to
lend the amount and there was no transaction between
the complainant and the accused. The accused has also
cross-examined the complainant regarding her financial
capacity. Thus, even though no suggestion was put to the
complainant that she has not produced any document to
prove her financial capacity and she has not pleaded about
her financial capacity either in the legal notice nor in the
complaint. However, the cross-examination of the
complainant reveals that she is merely a homemaker and
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has not produced any document to show her source of
income.
34. It is to be noted here that either in the
complaint or in the legal notice, the complainant has
stated that she has presented the cheque prior to
11.03.2015 before the bank. However, in Ex.P1 - cheque,
there is two seals of the bank, that it was presented on
04.02.2014 and also subsequently. The accused has
summoned the bank statement of the complainant and her
husband before the trial Court. The complainant and the
accused have not disputed the said bank statements of the
complainant and her husband. The statement of the
complainant reflects that on 04.02.2014, the complainant
has presented the subject cheque for encashment through
her banker; it came to the bank account on 06.02.2014
and Rs.5,00,000/- was credited to her account; on
24.02.2014 she has withdrawn the said amount. According
to the bank account of the husband of the complainant on
01.01.2015, he has credited Rs.5,00,000/- to the bank
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because of wrong credit to the account of his wife-the
complainant by name Shilpa.
35. According to this entry on 06.02.2014, an
amount of Rs.5,00,000/- was credited to the bank account
of the complainant and she has withdrawn the said
amount. But, there is no material produced by the accused
to show that the said amount was credited from his bank
account.
36. At the time of arguments, the learned counsel
for the accused fairly concedes that the said amount was
not credited from his bank account and it was wrong
amount from the bank.
37. Thus, no amount was debited from the bank
account of the accused. The trial Court and the appellate
Court have discussed these aspects in length and come to
the conclusion that the amount in question was not
debited from the bank account of the accused and thus the
offence under Section 138 of N.I. Act would be attracted
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when the cheque presented before the bank on
11.03.2014.
38. It is noted here that as on 11.03.2014, rightly
or wrongly the amount of Rs.5,00,000/- was credited to
the bank account of the complainant and she has utilized
the said amount by withdrawing the same on 24.02.2014.
It is pertinent to note that the said withdrawal amount of
Rs.5,00,000/- by the complainant is only in respect of the
subject cheque. However, the complainant again
presented the same cheque to the bank and obtained
endorsement on 11.03.2015. Furthermore, as on the date
of presentation of the complaint, said amount was already
utilised by the complainant, as discussed above.
39. The learned counsel for the complainant would
submit that the complainant has not presented the cheque
second time before the bank. But, when once bank
authorities came to know that the amount was wrongly
credited to the account of complainant they themselves
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have dishonoured it and returned the cheque. However, as
it is, the amount was utilized by the complainant as on the
date of presentation of the cheque and it was not returned
to the bank before that date.
40. On careful perusal of the evidence of PW1, it is
not so as submitted by the learned counsel for
complainant. Furthermore, as per the bank statement on
08.03.2014, again the complainant has presented the
same cheque before the bank and it was dishonoured on
11.03.2014. According to Ex.P2, the cheque was
dishonoured as 'payment stopped by drawer'. Ex.D8 is the
stop payment letter given by the accused to his bank and
it is dated 30.07.2013. In this letter, the accused has
stated that the cheques bearing No.612274, 612275 and
612276 were issued to Mr. Shivakumar (the husband of
complainant) in blank, he may misuse the cheques and
hence kindly please stop the payment for these cheques.
This was given by the accused to his banker on
30.07.2013 at 11:20 a.m. Ex.D7 is the endorsement
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issued by State Bank of India dated 31.10.2022 to the
accused that as per his instructions, the cheques bearing
No.612274, 612275 and 612276 were stopped on
30.07.2013. Thus, Ex.D7 and D8 along with Ex.P2 clearly
establish that the accused has stopped payment of subject
cheque along with two other cheques on 30.07.2013 itself.
With this background, the cross-examination of PW1 is to
be analysed.
41. In that cross-examination, PW1 categorically
deposed that about 1-1/2 - 2 months prior to Ex.P1, the
accused met her in respect of the money matter and on
that day there was a financial transaction between her and
the accused. She deposed so in para No.4 of her cross-
examination recorded on 09.02.2024. However in the
previous paragraph, the complainant has deposed that on
the date in which accused met her, no writing has taken
place between her and the accused. It is the specific
contention of the accused that there was business
transaction between the accused and the husband of
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complainant. According to him the husband of complainant
was working on behalf of the accused with timber
merchants to procure timber and to gain confidence of the
land owners, the accused has issued several cheques,
amongst them the subject cheque is also one and because
there was misunderstanding between the complainant's
husband and the accused, he has stopped the payment of
3 cheques, which includes the subject cheque.
42. Thus, the cheque in question was not with the
accused as on the date of this alleged 1-1/2 -2 months
prior to Ex.P1. Ex.P1 is dated 31.01.2015 and about 1-1/2
-2 months prior to it means December-2013, but the stop
payment was done in July-2013. Thus, the initial
presumption under Section 118 (b) of NI Act that the
cheque is drawn on the date referred in the cheque is
rebutted by the accused. The cheque in question was not
issued on the date mentioned in the cheque.
43. The other presumptions available in favour of
the complainant are that, the cheque is issued for
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consideration; there exists legally recoverable debt and
the cheque is issued for recovery of said debt either whole
or in part. With this background it is to be analysed
whether accused could rebut these presumptions.
44. As discussed earlier, the complainant in her
cross-examination admitted that there were transactions
between the complainant's husband and the accused but
she does not know details of those transactions but she
admitted the signature of her husband in Ex.D1. Ex.D1 is
the agreement between landowner and the accused and
the husband of the complainant put his signature to it as
an attester. This fact is admitted by the accused in his
cross-examination. There is no mention about the subject
cheque in Ex.D1 but it is of 01.10.2010 that is much
earlier to the date of stop payment letter and the alleged
transaction between complainant and the accused.
45. With this background, it is to be examined that
how the complainant has paid the amount to the accused.
According to her, she is the homemaker. She is not doing
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any money-lending business or any monetary business.
She is acquainted with the accused only through her
husband. But, she admitted that the accused is doing
timber business. She has categorically deposed in her
cross-examination that she is having bank account in
Syndicate bank which was earlier known as Canara Bank
at K.M. Road Mudigere. Her said account number is
09112200073795.
46. The bank account of complainant summoned by
the accused which is admitted by the complainant is of the
same bank. The complainant has deposed that she has not
done any transaction in her said bank account since 10
years. But according to her, her husband might have
transacted from said bank account. In cross-examination
complainant has specifically deposed that she has not
produced any document to show that she is having
financial capacity to lend Rs.5,00,000/-.
47. The learned counsel for complainant would
strenuously submit his arguments that only because the
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complainant is a housewife and not produced any
document to prove her financial capacity, it cannot be said
that she was incapable to lend Rs.5,00,000/-.
48. It is to be noted here that in the reply notice,
the accused has taken a specific contention that the
complainant is not having financial capacity and he has
cross-examined the complainant on these facts as
observed above. Atleast after such cross-examination,
when the accused elicited these facts in her cross-
examination, the complainant could produce some
documents to prove that he had such amount with her as
on the date of lending. Even then the complainant has not
produced any iota of evidence to show that where she has
kept Rs.5,00,000/- to lend the same to the accused. The
amount given by the complainant to the accused is only by
way of cash. This alleged transaction has taken place in
the year 2014 but as per Income Tax Act and Rules, any
transaction above a sum of Rs.2,00,000 shall be only
through bank transaction and not by way of cash.
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49. The accused has categorically established that
the cheque in question was not in his possession as on the
date of issuance to the complainant but it was already
given to the husband of complainant. The stop payment
letter given by the accused and endorsed by the bank are
not at all disputed and they are the documents issued by
the bank and cannot be disputed.
50. The accused has to rebut the presumptions only
based on the principle of preponderance of probability and
not beyond reasonable doubt. When he establishes that
the cheque in question was not at all with him as on the
date of alleged transaction and also established that there
was transaction between the husband of complainant and
the accused also established that complainant has financial
capacity; then he has rebutted the presumption in favour
of the complainant. When once the presumption in favour
of the complainant is rebutted, then the burden entirely
shifts upon the complainant to prove her case beyond
reasonable doubt. To prove the case of the complainant
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beyond reasonable doubt, the complainant has not
produced any iota of evidence. In the cross-examination of
the accused, the complainant has only elicited that
regarding the amount not debited from the bank account
of the accused at the time of its credit to the bank account
of the complainant during February-2015.
51. As discussed earlier, the amount credited to the
bank account alone cannot be a ground to say that
accused has rebutted the presumption. He has only
deposed that he does not remember the date of stopping
requisition given by him to his banker but it was in the
year 2013 but he himself has produced said document
which reflects the date of giving such requisition as
discussed above. Merely because the accused has not
taken any legal action against the husband of complainant
regarding other two cheques mentioned in stop payment
letter, it cannot be said that the subject cheque was issued
by the accused to the complainant. Except these
suggestions no other cross-examination to the accused
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regarding financial capacity of the complainant or on any
other aspect.
52. The presumptions available under Section 118
and 139 are rebuttable presumptions and trial Court and
the appellate Court ought to have examined this point in
an appropriate manner but without examining those facts,
the trial Court and the appellate Court have given
importance only to the fact that the amount in question
was not debited from the bank account of accused during
February 2014 and have wrongly concluded that the
accused has committed the offence punishable under
Section 138 of NI Act. Instead of doing so, the trial Court
convicted the accused blindly by following the
presumptions under Sections 118 and 139 which is blindly
confirmed by the appellate Court. Hence, they have not
examined the available material. There is no proper
discussion on stop payment letter of Ex.D7 and 8 in the
judgment of both Courts.
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53. Under these circumstances, when the material
evidence was not at all considered by the trial Court and
appellate Court, this Court under revisional jurisdiction can
interfere with said Judgments. Hence, this Court passes
the following:
ORDER
i) The revision petition is allowed by setting
aside the judgment of Conviction and Order
of Sentence dated 11.07.2025 in CC
No.1031/2021 on the file of the Prl. Civil
Judge & JMFC, Mudigere and confirmed in
Criminal Appeal No.112/2025 dated
02.03.2026 on the file of the Principal District
and Sessions Judge, Chikkamagaluru.
ii) The amount deposited by the accused shall
be refunded to him upon proper
identification.
Digitally Signed By:
K B GEETHA
(GEETHA K.B.)
JUDGE
LL
List No.: 2 Sl No.: 1