IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO. 445 OF 2018 (397(Cr.PC) / 438(BNSS))

BETWEEN:

SRI. PRASHANTH S/O. FRANCIS, AGED ABOUT 46 YEARS, POLICE CONSTABLE, DARAPC NO.205, R/AT HOUSE NO. 115, POLICE QUARTERS, HOSLINE ROAD, HASSAN-573 201.

…PETITIONER (BY SRI. SURESH.D.DESHPANDE, ADVOCATE)

AND:

SRI. NAGESH Digitally S/O PUTTSWAMIGOWDA, signed by REKHA R AGED ABOUT 36 YEARS, Location: R/AT DASARAKOPPALU, High Court of Karnataka JANATA MANE COLONY, KASABA HOBLI, HASSAN-573 201.

…RESPONDENT (BY SMT.K.M.ARCHANA, AMICUS CURIAE)

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 IMPUGNED ORDER OF CONVICTION DATED 23.06.2016, PASSED BY THE LEARNED II ADDITIONAL CIVIL JUDGE AND JMFC, HASSAN IN C.C.NO.2725/2014 (OLD NO.475/2008) AND ALSO THE JUDGMENT DATED 08.02.2018 PASSED BY THE 5^TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN IN CRL.APPEAL NO.142/2016 AND ETC., THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MS JUSTICE J.M.KHAZI

ORAL ORDER

This petition filed under Section 397(1)and 401(1) of the Code of Criminal Procedure is by the accused challenging the judgment and order of conviction passed 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 a complaint under Section

138 of N.I Act, contending that he and accused are friends. For his necessity, accused borrowed a sum of Rs.60,000/- from complainant on 10.04.2005 and issued cheque dated 06.06.2005 with a direction to get the amount from his account. Accordingly, he presented the cheque on 06.06.2005 for encashment through his account. However, it came to be dishonoured for want of sufficient funds. Complainant got issued legal notice dated 21.06.2005. Though duly served, the accused has neither sent reply nor complied with the same and hence the complaint.

4. Accused appeared through counsel and contested the case by pleading not guilty.

5. In order to prove the allegations against accused, the complainant has examined himself as PW-1 and got marked Ex.P1 to 5.

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

7. Accused has also given evidence as DW-1. No documents are marked on his behalf.

8. The trial Court convicted the accused and sentenced him to pay fine of Rs.80,200/- with default sentence.

9. Accused challenged his conviction and sentence before the Sessions Court, which came to be dismissed.

10. Challenging the concurrent findings of the trial Court as well as the Sessions Court, accused has filed this petition contending that they are illegal, improper and opposed to the facts and circumstances of the case. Both Courts have failed to appreciate the evidence in proper perspective. They have failed to appreciate the fact that complainant has not proved his financial capacity and that the alleged loan is legally enforceable debt. The findings of the trial Court and Sessions Court are not supported by valid reasons.

11. On the other hand, learned Amicus Curiae representing the complainant supported the impugned judgment and order of the trial Court as well as the Session Court and submitted that in the light of the fact that the cheque in question is drawn on the account of the accused and it bears his signature, presumption under Section 139 of the N.I Act comes into play placing the initial burden on the accused to rebut the same. In the present case, the accused has not only failed to rebut the presumption, but also taken inconsistence defence which he has failed to prove. Considering the oral and documentary evidence on record, both courts have come to a correct conclusion. There