IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO. 496 OF 2023 (397(Cr.PC) / 438(BNSS))

BETWEEN:

MR VENKATESH K S/O LATE KRISHNAPPA, AGED ABOUT 62 YEARS RESIDING AT NO. 418/10, MIG 3^RD STAGE, WARD NO. 25, A SECTOR, YELAHANKA NEW TOWN, BENGALURU-560106 …PETITIONER (BY SRI. MANJUNATH.G.KANDEKAR, ADVOCATE)

AND:

MR P PRASANNA KUMAR Digitally SON OF PERIYANNA, signed by REKHA R AGED ABOUT 55 YEARS, Location:

RESIDING AT AGAMYA ARCADE High Court of Karnataka NO.810, (NISAN CAR SHOWROOM BUILDING)

100 FEET ROAD, HOSAKEREHALLI, BANASHANKARI 5^TH BLOCK, 3^RD STAGE, NEXT TO GUPTA COLLEGE, BENGALURU-560085.

…RESPONDENT (BY SRI. G M SRINIVASAREDDY, ADVOCATE)

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 OF CONVICTION AND SENTENCE IN CRL.A.NO.44/2021, DATED 07.03.2023 BY THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT AT BENGALURU AND ALSO THE JUDGMENT, SENTENCE AND CONVICTION PASSED BY C.J.M., BENGALURU RURAL DISTRICT AT BENGALURU IN C.C.NO.8088/2018 DATED 15.11.2021 AND ETC., 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, wherein he has challenged his conviction and sentence imposed by the trial Court for the offence punishable under Section 138 of N.I Act, 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. Complainant filed the complaint against accused alleging that he and accused are known to each other since long time. For his legal necessity accused borrowed a sum of ₹10 lakhs from the complainant with a promise to repay the same within one year. However, when he failed to keep up with his promise, on the insistence of the complainant, accused issued 2 cheques for ₹5 lakhs, each dated 22.06.2018. When presented for realisation, they were dishonoured as "Funds insufficient". Complainant got issued legal notice to the accused. The notice sent to the residential address of the accused is returned as not claimed. However, the one sent to his office address is duly served. In fact, accused sent an evasive reply and hence the complaint.

4. Accused has resisted the complaint by pleading not guilty.

5. In order to prove the allegations against the accused, complainant has examined himself as PW-1 and relied upon Exs.P1 to 10.

6. During the course of his statement under Section 313 Cr.P.C, accused has denied the incriminating evidence led by the complainant.

7. He has also given evidence as DW-1. However, no documents are marked on his behalf.

8. The trial Court convicted the accused and sentenced him to pay a fine of ₹14 lakhs with default sentence of imprisonment.

9. Aggrieved by the same, accused filed appeal before the Sessions Court, which came to be dismissed by confirming the judgment and order of trial Court.

10. Aggrieved by the same accused is before this Court contending that the judgment and order of the trial Court as well as the Sessions Court are unjust, perverse and contrary to the fact circumstance of the case. Both Courts have not considered the evidence of accused. The complainant has failed to prove that he had financial capacity and that he has lent to ₹10 lakhs to the accused and that it is a legally recoverable debt or liability. Therefore, drawing of presumption, placing the burden on the accused is not correct. Viewed from any angle, the impugned judgment and order of the trial Court and Sessions Court are not sustainable and pray to allow the petition.

11. In support of his arguments, learned counsel for accused has relied upon the following decisions:

(i) Vijay Vs. Laxman (Vijay)

(ii) Khaleel Khan P Vs. Shankarappa (Khaleel Khan)

12. On the other hand, learned cou