- 1 - HC-KAR NC: 2025:KHC:23223 CRL.RP No. 1203 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 1203 OF 2024 BETWEEN: DR. HIDAYATHUR RAHAMAN KHAN S/O LATE ABDUL HAFEEZ KHAN AGED ABOUT 41 YEARS R/A GRACE HOUSE AYSHIYANA –E - SHAHABAZ MISBA No.5, 8TH ‘B’ MAIN RAOD BTM LAYOUT 1ST STAGE BANGALORE - 560 029. …PETITIONER (BY SRI SURESHA, ADVOCATE) AND: MR. SARWAR MIYAN S/O HAAJI MIYAN AGED ABOUT 49 YEARS R/A No. 6/8, 1ST MAIN BISMILLAH NAGAR BANNERGHATTA CROSS ROAD BANGALORE - 560 029. …RESPONDENT (BY SRI ANIRUDH T A, ADVOCATE FOR SRI JAVEED S, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 05/04/2022 PASSED IN CC No. 5754/2019 FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT, ON THE FILE OF HON’BLE XII ACMM, Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:23223 CRL.RP No. 1203 of 2024 BENGALURU CITY AND ALSO SET ASIDE THE ORDERS DATED 02/01/2024 IN CRIMINAL APPEAL No.505/2022 PASSED BY THE LVI ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH 57) AT BENGALURU CITY, PENDING DISPOSAL OF THE ABOVE REVISION PETITION AND ETC., THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER 1. This revision petition is directed against the judgment dated 02.01.2024 passed in Crl.A. No. 505/2022 by the LVI Additional City Civil and Sessions Judge, Bengaluru, whereunder the judgment dated 05.04.2022 passed in C.C. No. 5754/2019 by the XIII Additional Chief Metropolitan Magistrate, Bengaluru convicting the petitioner for offence punishable under Section 138 of Negotiable Instruments Act (hereinafter for the sake of brevity referred to as the `N.I. Act’) and sentencing him to pay fine of Rs.5,45,000/- and in default to undergo simple imprisonment for a period of 3 months has been affirmed. - 3 - HC-KAR NC: 2025:KHC:23223 CRL.RP No. 1203 of 2024 2. Heard learned counsel for petitioner and learned counsel for respondent. 3. Case of the complainant before the trial Court was that he was working as a Pharmacy Manager in Sagar Hospital and the accused was working as a Doctor and both were known to each other. Petitioner - accused borrowed a sum of Rs.8,50,000/- to meet out his financial difficulties. Said amount of Rs.8,50,000/- has been paid by cheques, RTGS and NEFT on various dates. Respondent - complainant demanded petitioner - accused to repay the amount borrowed and petitioner - accused had repaid a sum of Rs.1,60,000/- on 30.06.2018 and for payment of balance amount of Rs.6,90,000/-, he had issued two cheques, one for Rs.6,00,000/- and the other for Rs.90,000/-. It is the further case of respondent - complainant that petitioner - accused thereafter issued 2 cheques, one for Rs.4,00,000/- and another for Rs.2,00,000/- in favour of respondent - complainant. Said 2 cheques on being presented came to be dishonoured for - 4 - HC-KAR NC: 2025:KHC:23223 CRL.RP No. 1203 of 2024 the reason `funds insufficient’ under Bank memo dated 17.09.2018. Respondent - complainant got issued legal notice to petitioner - accused on 01.10.2018 by RPAD. Said RPAD has returned with postal shara `door locked’. As petitioner - accused has not paid the cheque amount, respondent - complainant has initiated proceedings under Section 138 of N.I. Act. Respondent – complainant got examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.9. Petitioner - accused has not chosen to cross- examine P.W.1 inspite of giving sufficient opportunity. Statement of petitioner - accused has been recorded under Section 313 of Cr.P.C. Petitioner - accused has not let in any defence evidence. The trial Court, on appreciating the evidence on record, has convicted petitioner - accused as noted supra. Said judgment of conviction was challenged before the Sessions Court in Crl.A. No. 505/2022 and the same came to be dismissed on merits confirming the judgment of conviction passed by the trial Court. - 5 - HC-KAR NC: 2025:KHC:23223 CRL.RP No. 1203 of 2024 4. Learned counsel for petitioner – accused would contend that petitioner - accused has not been given sufficient opportunity to cross-examine P.W.1. Petitioner - accused had some personal difficulties at that time and therefore, he could not cross-examine P.W.1. Notice sent to petitioner - accused has not been served on him and it had returned with postal shara `door locked’. 5. Having heard learned counsel for the parties this Court has perused the impugned judgments and trial Court records. 6. Two cheques issued by petitioner - accused are at Ex.P.1 and Ex.P.2. Said two cheques have been dishonoured for want of funds in the account of petitioner - accused. P.W.1 in his evidence has stated that petitioner – accused, in order to repay the amount borrowed, had issued 2 cheques which are at Ex.P.1 and Ex.P.2. As there is no cross-examination of P.W.1 said evidence remained unchallenged. Therefore, presumption has to be drawn under Section 139 of the N.I. Act that the cheques are - 6 - HC-KAR NC: 2025:KHC:23223 CRL.RP No. 1203 of 2024 issued for discharge of debt. Said presumption has not been rebutted by petitioner - accused by cross-examining P.W.1 and leading defence evidence. 7. A perusal of the order sheet of the trial Court would indicate that petitioner - accused has been given several opportunities for cross-examination of P.W.1. Case has been posted for cross-examination of P.W.1 on 04.09.2019, 06.10.2019, 08.11.2019, 24.02.2020, 18.02.2021, 26.03.2021, 28.10.2021 and 16.11.2021. Inspite of giving sufficient opportunity, learned counsel for petitioner has not chosen to cross-examine P.W.1 and cross-examination has been taken as nil on 16.11.2021. Petitioner - accused has also not led any defence evidence. Learned counsel for petitioner has filed written arguments on 23.03.2022. Considering the said aspect it is clear that the trial Court has granted sufficient opportunities to the petitioner for cross-examination of P.W.1. Petitioner - accused has not availed the said opportunities to cross- examine P.W.1. In the appellate Court also petitioner - - 7 - HC-KAR NC: 2025:KHC:23223 CRL.RP No. 1203 of 2024 accused has not prayed for remand of the matter to the trial Court. 8. Notice issued to petitioner - accused has been returned as `door locked’ and on perusal of the postal cover it is seen that there is an endorsement that `intimation has been delivered’. Said aspect indicates that petitioner - accused has not claimed the notice sent by RPAD. Therefore, said notice is deemed to have been served on petitioner - accused. 9. Considering all these aspects there are no grounds to entertain this revision petition. Hence, revision petition is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE LRS List No.: 1 Sl No.: 41