- 1 - NC: 2025:KHC-D:2663 CRL.RP No. 100007 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL REVISION PETITION NO.100007 OF 2023 [397(CR.PC)/438(BNSS)] BETWEEN: D. SHANTAMMA W/O. CHANDRAPPA DEVASHETTI, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O. HOLAL, TQ: HUVINAHADAGALI, DIST: BELLARI. … PETITIONER (BY SRI ABHISHEK HOSAKERI, ADVOCATE FOR SRI IRANAGOUDA K. KABBUR, ADVOCATE) AND: MALATESH S/O. MALLESHAPPA VEERAPUR, AGE: 36 YEARS, OCC: SDA AND AGRICULTURE, R/O. GUNDENAHALLI, TQ: BYADAGI, DIST: HAVERI-581110. … RESPONDENT (BY SRI SADASHIV S.PATIL, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 OF CR.P.C. SEEKING TO ALLOW THIS REVISION PETITION BY CALL FOR THE RECORDS AND SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 03.11.2022 PASSED BY THE ADDL. DIST. AND SESSIONS JUDGE, AND FTSC-I HAVERI IN CRIMINAL APPEAL NO.35/2022, WHEREBY CONFIRMED THE JUDGMENT AND ORDER OF CONVICTION DATED 29.04.2022 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, HAVERI IN C.C.NO.12/2018 FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: V N BADIGER Digitally signed by V N BADIGER Date: 2025.02.19 14:38:08 +0530 - 2 - NC: 2025:KHC-D:2663 CRL.RP No. 100007 of 2023 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) Challenging judgment/order dated 03.11.2022 passed by Addl. District and Sessions Judge and FTSC-I, Haveri (‘Appellate Court’, for short) in Crl.A.no.35/2022 and judgment/order dated 29.04.2022 passed by Principal Civil Judge and J.M.F.C., Haveri (‘Trial Court’, for short) in C.C.no.12/2018, this revision petition is filed. 2. Sri Abhishek Hosakeri, advocate appearing for Sri Iranagouda K.Kabbur, learned counsel for petitioner submitted respondent (complainant) had filed private complaint against petitioner alleging that petitioner had approached him on 31.08.2016 for handloan of Rs.5,00,000/- for his family necessities agreeing to repay same within 7 to 8 months and that complainant had lent money on said assurance. After lapse of agreed time, when complainant demanded repayment, petitioner postponed it to some extent and on 20.09.2017 issued cheque no.746737 drawn on Axis Bank, Haveri Branch. But when same was presented for collection on 25.09.2017, it returned dishonoured with endorsement ‘funds insufficient’ on - 3 - NC: 2025:KHC-D:2663 CRL.RP No. 100007 of 2023 same day. Thereafter, when legal notice was got issued on 11.10.2017, even after receipt of same, petitioner failed to pay cheque amount within 15 days. Therefore, complaint was filed on 16.11.2017 alleging commission of offence under Section 138 of Negotiable Instruments Act, 1881 (‘NI Act’, for short). 3. It was further submitted, after appearance, when substance of accusation was read over and explained, petitioner pleaded not guilty and claimed to be tried. It was submitted, complainant examined himself as PW1 and got marked Exs.P1 to P9. On being apprised of incriminating circumstances, statement of petitioner denying same was recorded under Section 313 of CrPC. Thereafter petitioner availed opportunity, examined herself as DW1 and got marked Exs.D1 to D9. She also examined another witness as DW2 and got marked Ex.D10. 4. It was submitted, though petitioner had set up substantial defence denying not only acquaintance and having any financial transaction with complainant, but also alleged misuse of cheque given by petitioner’s son to Poojar Chandrappa and Thippeswamy, violation of Section 269SS of - 4 - NC: 2025:KHC-D:2663 CRL.RP No. 100007 of 2023 Income Tax Act, 1961 (‘IT Act’, for short) as well as denying handwriting on Ex.P1 – cheque except signature. However, without proper consideration, trial Court held complainant was entitled for presumption under Section 118 and 139 of NI Act and that petitioner had failed to establish probable defence to upset presumption and consequently erroneously convicted petitioner. 5. It was submitted, even though said contentions were urged, First Appellate Court without proper re-appreciation confirmed findings and dismissed appeal. It was submitted, both Courts had concurrently erred in ignoring fact that petitioner had totally denied having any financial transaction with complainant. Even financial capacity of complainant to lend such amount or need by petitioner to take loan were also disputed. Even in absence of any witnesses to such transaction or any corroborative material, both Courts were not justified in extending presumption and relied upon ratio laid down in case of Rohitbhai Jivanlal Patel v. State of Gujarat and another reported in (2019) 18 SCC 106. On above grounds sought to allow revision petition. - 5 - NC: 2025:KHC-D:2663 CRL.RP No. 100007 of 2023 6. On other hand, Sri Sadashiv S. Patil, learned counsel for complainant opposed petition. It was submitted, all contentions urged herein were duly considered by both Courts and findings thereon were concurrently against petitioner leaving no scope for interference in revision. It was submitted, complainant had very clearly stated in complaint that complainant was a Class-II contractor and agriculturist earning sufficient income, while petitioner and her son had together opened mobile phone shop at Holalu village by name Yes Mobile. It was further stated that complainant got acquainted with petitioner through their common friend Shivayogi Rudrappa Yogi since 3 to 4 years. During said period, she had taken handloan and repaid same on several occasions. As such when petitioner sought money for development of mobile shop as well as for her family necessities, he had lent Rs.5,00,000/- to her at his house on 31.08.2016. It was submitted, complainant had also specifically stated that amount of Rs.5,00,000/- was withdrawn by complainant from his account with Axis Bank on same day. It was submitted, bank account statement of complainant was produced as Ex.P9. It was further submitted, said facts were also narrated in Ex.P6 – legal - 6 - NC: 2025:KHC-D:2663 CRL.RP No. 100007 of 2023 notice which as per Ex.P8 – acknowledgement duly served on petitioner. Despite same, there was no reply. Under above circumstances, it was submitted, both Courts had extended presumption in favour of complainant. 7. Contentions about cheque issued to third person being issued by complainant was rejected by referring to decision of this Court in K.Kuppuraju v. Thrilokamurthy reported in 2021 (1) KCCR 542 and about violation of provisions of IT Act by referring to decision in case of Dilip Chawala v. Ravindra Kumar and another reported in 2017 SCC OnLine Delhi 10246. It was submitted, since signature on cheque was admitted, presumption under Section 118 and 139 of NI Act would be available in favour of complainant and burden would be on petitioner to set up probable defence. Both Courts had arrived at finding of fact that petitioner failed to establish probable defence. Thus, there was no scope for interference and sought dismissal of revision petition. 8. Heard learned counsel and perused impugned judgment and order. - 7 - NC: 2025:KHC-D:2663 CRL.RP No. 100007 of 2023 9. From above, point that arises for consideration is: “Whether revision petitioner has made out a case for interference with concurrent findings?” 10. This revision petition under Section 397 read with 401 of CrPC, is by petitioner (accused) questioning concurrent findings holding her guilty of offence under Section 138 of NI Act. 11. Hon’ble Supreme Court in Amit Kapoor v. Ramesh Chander, reported in (2012) 9 SCC 460 has clarified contours of jurisdiction under above provisions as follows: “18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension - 8 - NC: 2025:KHC-D:2663 CRL.RP No. 100007 of 2023 or suspicion of the same would not be a sufficient ground for interference in such cases.” 12. Thus, interference would normally be justified only on questions of law and not on concurrent findings of fact. In case of Rangappa v. Sri Mohan, reported in 2010 (11) SCC 441, Hon’ble Supreme Court has held that it would not be necessary for accused to step into witness box to rebut presumption and same could be done based on material produced by complainant. 13. By virtue of specific defence about complainant misusing cheque issued to someone else, there would be admission about petitioner signing on cheque which would be sufficient to attract presumption under Section 118 and 139 of NI Act. In light of above, when contentions such as denial of transaction with complainant and his financial capacity to pay such amount cannot be held probabilized merely on oral assertion. Ex.P9 – bank account statement of complainant would reveal that he had withdrawn Rs.5,00,000/- from his bank account on 31.08.2016, date on which he claims to have lent it to petitioner. Admittedly, complainant is holder of Ex.P1- cheque who would also attract presumption under NI Act. - 9 - NC: 2025:KHC-D:2663 CRL.RP No. 100007 of 2023 Though, petitioner alleged, complainant to have misused cheque issued by her son to Poojar Chandrappa and Thippeswamy, they are not examined. She has chosen to examine her son Devashetti as DW2, who got marked statement of his bank account from 01.03.2016 to 30.04.2016 as Ex.D10. It was however elicited in cross examination, that it did not reflect his transactions with said Poojar Chandrappa and Thippeswamy. DW2 also admitted that no notice was issued to aforementioned persons for misuse of cheque or cheating or about issuing stop payment intimation to bank. He also admitted receipt of Ex.P6 – legal notice and failure to issue reply. Therefore, both Courts would be justified in holding that petitioner had failed to probabilise defence. 14. Under above circumstances, ratio in Rohitbhai Jivanlal Patel (supra) would not be of any help to petitioner. In view of above, point for consideration is answered in negative. Hence, following: ORDER Criminal Revision Petition is dismissed. SD/- (RAVI V.HOSMANI) JUDGE CLK_CT:PA