- 1 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL REVISION PETITION NO. 100202 OF 2018 BETWEEN: SRI PARSHWANATH S/O. KIRAPPA HOTAPETI, AGE: 49 YEARS, OCC: CIVIL CONTRACTOR, R/O: PLOT NO.25, CHAITANYA NAGAR, MURDESHWAR FACTORY ROAD, GOKUL ROAD, HUBBALLI-580 030. … PETITIONER (BY SMT. ARCHANA A. MAGADUM, ADVOCATE) AND: M/S.ROKHADE INDUSTRIES THROUGH ITS PARTNER SRI MAHAVEER S/O. BABURAO ROKHADE, AGE: 48 YEARS, OCC. BUSINESS, R/O. HOUSE NO.16, ROKHADE CASTLE, 1ST FLOOR FLAT NO.3, PRASHANT COLONY, VIDYANAGAR, HUBBALLI-580 021. … RESPONDENT (BY SMT.JYOTI P.DESAI, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH UNDER SECTION 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT DATED 03.10.2018 PASSED BY THE I-ADDL. DIST. & SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI IN CRL.A.NO.72/2017 AND CONSEQUENTLY SET-ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 06.07.2017 PASSED BY THE PRL. CIVIL JUDGE & JMFC COURT, HUBBALLI IN C.C.NO.495/2017. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 27.02.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCING FROM BANGALORE BENCH, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 CAV ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) Challenging judgment/order dated 03.10.2018 passed by I Addl. District and Sessions Judge, Dharwad sitting at Hubballi (‘Appellate Court’, for short) in Crl.A.no.72/2017 and judgment/order dated 06.07.2017 passed by Principal Civil Judge and JMFC, Hubballi (‘Trial Court’, for short) in C.C.no.495/2017, this revision petition is filed. 2. Smt.Archana A. Magadum, learned counsel for petitioner submitted, respondent (complainant) had filed private complaint against petitioner, stating that complainant was a partner in M/s.Rokhade Industries, partnership firm engaged in sale of Shahabad stones. It was stated that petitioner was brother-in-law of complainant and was civil contractor by occupation and for execution of his works, purchased goods from complainant. That petitioner had contractual relationship from 2007 and availing credit purchase facility, made purchases from time to time, for which bills were drawn. It was stated, petitioner had purchased goods on credit basis for Rs.3,69,055.50/- and for payment, issued cheque bearing no.0201990, drawn on Ratnakar Bank Limited, Hubballi Branch on 25.02.2013. And when said cheque was presented - 3 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 through complainant’s banker Karnataka Bank Limited, Hubballi on 20.02.2013, it was dishonored as “Account closed”. On communication, petitioner was alleged to have issued cheque dated 06.03.2013 bearing no.0221895 of drawn on same bank but different account number. On presentation, even said cheque was dishonoured on 08.03.2013 with endorsement “Funds Insufficient”. 3. Therefore, complainant got issued legal notice dated 25.03.2013. And as petitioner failed to pay cheque amount within fifteen days of receipt of notice and instead sent untenable reply on 10.04.2013, offence under Section 138 of Negotiable Instruments Act, 1881 (‘NI Act’, for short) was committed. Hence, complaint was filed. 4. It was submitted, after appearance, petitioner pleaded not guilty and sought trial. Complainant examined himself as PW.1 and got marked Exhibits P1 to P23. Thereafter, petitioner was apprised of incriminating circumstances and his statement denying same was recorded under Section 313 of Cr.P.C. Petitioner also led oral evidence by examined himself as DW.1 and without marking any documents. - 4 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 5. It was submitted, petitioner set-up substantial defence not only denying transactions with complainant after 2009, but also alleging misuse of petitioner’s cheque. Ignoring same, trial Court convicted petitioner and sentenced him to pay fine amount of Rs.7,38,111/- and in default to undergo simple imprisonment for 6 months. Aggrieved, petitioner preferred Crl.A.no.72/2017 on various grounds. It was submitted, without proper appreciation, appeal was dismissed on 03.10.2018, thereby leading to this revision petition. 6. At outset, it was submitted, during relevant period, there were no transactions between complainant and petitioner. Therefore, there was no legally enforceable debt. Though it was allegation of petitioner availing credit facility for purchase of goods worth Rs.3,69,055.55/- was denied, no material was produced to establish supply of goods to petitioner or about their delivery at respective places. It was submitted, even as per complaint, transaction began in year 2007 and ended in 2009. Therefore, cheque dated 08.03.2013 would be in respect of time barred debt. 7. It was submitted, though there was raising of presumption under Section 139 of NI Act, petitioner had not - 5 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 only taken specific stand, but also pointed out, Bills issued on various dates had continuous serial numbers, even when complainant had reasonably large volume of sales of stones, thereby giving rise to grave doubt. Even in cross-examination of complainant, admissions elicited that none of Exs.P8 to 10 - Bills had counter signatures from recipients or driver of vehicle in which they were transported. 8. Complainant admitted, there was no mention about any outstanding amount from petitioner in Ex.P19 - balance sheet. Likewise, it was admitted, even in VAT or income tax returns at Exs.P13 to P18, there was no mention of outstanding amount from anyone or particulars of amount due from petitioner. It was submitted, bills did not have TIN numbers, raising doubt. Thus, without proper records to establish transaction with petitioner in year 2013, false and baseless complaint was filed. It was alleged, cheque was issued during currency of earlier transactions, with view to recover time- barred debt. It was submitted as both trial as well as appellate Courts had failed to appreciate above material, interference was warranted. - 6 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 9. On other hand, Smt.Jyothi P. Desai, learned counsel for complainant opposed petition on ground that it was against concurrent findings, leaving no scope for interference. Repelling contentions of petitioner, it was submitted, admittedly, petitioner was relative of complainant and contractor by occupation. It was submitted, petitioner had purchased goods from complainant since year 2007 and cleared dues from time to time by availing credit purchase facility. But, in year 2013, he purchased goods for Rs.3,69,055.50/- on credit. 10. It was submitted, petitioner initially issued cheque bearing no.0201990 drawn on Ratnakar Bank towards outstanding amount that too after many requests to clear debt. On presentation, said cheque was dishonored due to closure of account. Thereafter, petitioner issued Ex.P.1 - cheque no.0221895 drawn on different account in same Bank. On presentation, even said cheque was dishonored due to insufficient funds in account. As petitioner failed to repay even after receiving demand notice and instead addressed untenable reply, complaint was filed. - 7 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 11. It was submitted, complainant’s claim were duly supported by Bills, Ledger Extracts, VAT returns, etc. Therefore, defence set up were without any substance. It was submitted, in his cross examination, petitioner admitted signing and issuing cheque, thereby attracting presumption in favour of complainant about cheque issued for discharge of legally enforceable debt. Though, petitioner denied same, provisions of NI Act casted burden on petitioner to rebut presumption under Section 139 of NI Act. As no material was placed to corroborate defences, they were rightly negatived by both Courts. On above grounds, sought for dismissing petition. 12. Heard learned counsel and perused impugned judgment and order. 13. From above, point that arises for consideration is: “Whether revision petitioner has made out a case for interference with concurrent findings?” 14. This revision petition is under Section 397 read with Section 401 of CrPC. As per decision of Hon’ble Supreme Court in case of Amit Kapoor v. Ramesh Chander and Anr. reported in (2012) 9 SCC 460, scope of interference with - 8 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 concurrent findings was held to be extremely limited and normally only on questions of law and not findings of fact. 15. Main grounds of challenge are denial of transaction between petitioner and complainant and on said basis contending that there was no legally enforceable debt; and misuse of cheque issued long ago as security purposes only for transactions of earlier years by forgery filling up of blanks in cheque etc. 16. Before trial Court, complainant made clear assertions about petitioner being Civil contractor, complainant being supplier of construction material and petitioner making purchases from complainant. He also stated that petitioner was brother-in-law of complainant and credit purchase facility being availed. There are also clear averments about particulars of purchased goods worth Rs.3,69,055.50/- due for payment, issuance of cheque dated 25.02.2013 bearing no.0201990 drawn on Account no.1053 in Ratnakar Bank Ltd., Hubballi. It is also stated that when presented for payment, it returned dishonored due to Closure of Account. Complainant has also specifically stated that on being appraised of dishonor, petitioner issuing fresh cheque dated 06.03.2013 bearing - 9 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 no.0221895 drawn on Account no.980 in Ratnakar Bank Ltd., Hubballi. And about dishonor of said cheque also on ground of insufficiency of funds, when presented for collection on same day. He further stated, despite issuing demand notice on 25.03.2013, petitioner failed to make payment, thereby committing offence under Section 138 of NI Act. 17. During trial, complainant produced both dishonored cheques with bank endorsements about dishonor as Exs.P.1 to P.4; Legal Notice with postal receipts/acknowledgements as Exs.P.5 and 6; Reply Notice as Ex.P.7; Tax Invoices as Exs.P.8 to P.10; Ledger extracts as Exs.P.11 and P.12; IT Return as Ex.P.13; VAT Returns as Exs.P14 to P.18; Balance Sheet as Ex.P.19; Memorandum of acknowledging receipt of documents as Ex.P.20; Partnership Deed, Dissolution of Partnership and Authorization letter as Exs.P.21 to P.23. In rebuttal, petitioner chose to lead only oral evidence examining himself as DW.1. 18. Though, re-appreciation would not be appropriate in Revision, unlike as contended by petitioner, bare glance at Exs.P.1 and P.2 - cheques does not indicate that they were signed together. He has also not disclosed that signed cheques issued were drawn on different accounts. Neither in Ex.P.7 nor - 10 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 in oral evidence, petitioner disclosed particulars of alleged signed blank cheques issued to complainant. 19. It is also seen, there is no contention about complaint being defective due to violation of statutory time limit prescribed in Section 138 of NI Act. Though there is denial of transaction and issuance of cheque towards legally enforceable debt, there is admission about execution of cheques, although for security purposes only. Said admission would qualify for attraction of presumption under Sections 118 and 139 of NI Act as per law laid down by Hon'ble Supreme Court in Rangappa v. Sri Mohan reported in (2010) 11 SCC 441. Therefore, burden to dislodge presumption would be on accused, either by leading specific evidence by accused or by raising probable/acceptable defence and substantiating same from evidence led by complainant. 20. In instant case, rebuttal is sought to be substantiated firstly by denying transaction and alleging failure on part of complainant to produce relevant record and also substantiating doubt over records produced. But, complainant has produced tax invoices as Exs.P.8 to 10, Ledger extracts as Exs.P.11 and 12, IT Return as Ex.P.13, VAT Returns as - 11 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 Exs.P.14 to P.18 and Balance Sheet as Ex.P.19. Even contentions such as non-mentioning of outstanding amount in IT Return and Balance Sheet would not hold much water as Ex.P.19 - Balance Sheet attested by Chartered Accountant specifically mentions total due amount from petitioner at Rs.3,69,055.50/-. 21. Insofar as specific contention for casting doubt about Exs.P.8 to 10 on ground that they are serially numbered though drawn on different dates, on perusal, it is seen, two Bills namely Bill no.27 dated 25.07.2008 for Rs.10,687.50/- and Bill no.46 dated 08.11.2008 for Rs.19,724/- are marked as Ex.P.8; Ex.P.9 is Bill no.295 dated 08.06.2012 for Rs.19,950/-. Unlike contended, they bear non-serial Bill numbers and do not exude suspicion. 22. Said contention is however, sought to be highlighted referring to Ex.P.10 wherein 17 bills virtually and serially numbered though drawn in respect of different transactions against petitioner for period between 05.01.2013 and 16.02.2013. During cross-examination of complainant, suggestion made Ex.P.12 - ledger extract would indicate that under bills no.17 to 34, there was sale of material only to - 12 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 petitioner, between January and March, 2013, is admitted. Though suggestion is made about suppressing sale to others, said suggestion is denied. It is seen, very suggestion made by petitioner-accused would contradict his contention. Further, it is settled law that merely making suggestion and eliciting denial would not be sufficient to probabilize defence as per ratio in Rangappa's case (supra). 23. Bare perusal of Ex.P.12 - ledger extract does not indicate anything suspicious. In fact, Exs.P.8 to 12 are marked without any objection. Even admissions elicited about non- mention of particulars of consignee, acknowledgment of delivery by consignee or by driver of vehicle would not be material, firstly, as per complainant, order being placed by accused and bills containing particulars of vehicle in which they were transported with most of them also containing signatures of driver. Likewise, contentions that audited records are ledger/bills not containing signatures of Tax Authorities would be too hypertechnical, as proceedings under NI Act are summary in nature. [Indian Bank Association v. Union of India, (2014) 5 SCC 590]. - 13 - NC: 2025:KHC-D:5836 CRL.RP No. 100202 of 2018 24. It is also seen that petitioner failed to elicit any admission about issuance of cheque for security purposes. It is held by Hon'ble Supreme Court in APS Forex Services (P) Ltd. v. Shakti International Fashion Linkers reported in (2020) 12 SCC 724 that mere taking of such defence would not be sufficient to rebut presumption under Section 139 of NI Act. 25. While passing impugned judgment, both Courts have taken note of specific defence set up by petitioner and after referring to entire material held commission of offence under Section 138 of NI Act as established. There is no challenge on sentence. Taking note of fact that cheque was issued way back in year 2013 and as Section 138 of NI Act permits imposition of sentence of twice cheque amount, even same would not warrant interference. Point for consideration is answered in negative. Consequently, following: ORDER Revision petition is dismissed. Sd/- (RAVI V.HOSMANI) JUDGE Psg/AV/GRD List No.: 19 Sl No.: 1