- 1 - HC-KAR NC: 2025:KHC:45981 CRL.RP No. 639 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 639 OF 2023 BETWEEN: SMT B.K.PUSHPA AGED ABOUT 42 YEARS, W/O CHANDRU, R/A GARAGANDOOR VILLAGE, MADAPURA SOMWERPET TALUK, KODAGU DISTRICT - 571 236. …PETITIONER (BY SRI SACHIN B.S., ADVOCATE) AND: SRI M.U GANESH, AGED ABOUT 39 YEARS, S/O LATE M.K.UNNIKRISHNANA, R/O SUNKADDAKATTE, VIRAJPETE TOWN, KODAGU DISTRICT - 571 218. …RESPONDENT (RESPONDENT - SERVED & UNREPRESENTED) THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED JUDGMENT DATED 30.01.2023 IN THE CRIMINAL APPEAL NO.5022/2019 ON THE FILE OF II ADDL. DISTRICT AND SESSIONS JUDGE, KODAGU - MADIKERI, SITTING AT VIRAJPET, THEREBY CONFIRMING THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 09.07.2019 IN C.C.NO.297/2017 ON THE FILE OF CIVIL JUDGE AND JMFC AT VIRAJPET, AND CONSEQUENTLY DISMISS THE COMPLAINT FILED BY THE COMPLAINANT/SWRESPONDENT FOR THE OFFENCE P/U/S 138 OF N.I. ACT. Digitally signed by GURURAJ D Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:45981 CRL.RP No. 639 of 2023 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL ORDER Challenging judgment dated 30.01.2023 passed by II Additional District and Sessions Judge, Kodagu - Madikeri (sitting at Virajpet), in Crl.A.no.5022/2019 confirming judgment of conviction and order of sentence dated 09.07.2019 passed by Prl. Civil Judge and JMFC, Virajpet, in C.C.no.297/2017, this revision petition is filed. 2. Sri Sachin B.S., learned counsel petitioner submitted that revision petition was by petitioner (accused) against concurrent erroneous findings convicting petitioner for offence punishable under Section 138 of Negotiable Instruments Act, 1881, ('NI Act', for short). It was submitted, respondent (complainant) had filed complaint under Section 200 of Cr.P.C. alleging that accused was a lab technician, running a diagnostic lab in Virajpet, beside complainant's shop viz., 'Prince Lottery Shop'. On 03.10.2016, accused borrowed Rs.6,00,000/- as hand loan for family needs and issued post- dated cheque bearing no.060167 dated 03.03.2017 drawn on - 3 - HC-KAR NC: 2025:KHC:45981 CRL.RP No. 639 of 2023 Corporation Bank, Virajpet towards repayment. But on presentation, said cheque returned with endorsement 'insufficient funds' on 14.03.2017. And even when demand notice dated 17.03.2017, got issued by complainant was duly served on 20.03.2017, accused failed to repay amount, thereby committing offence punishable under Section 138 of NI Act. 3. On appearance, accused denied allegations and sought trial, whereupon complainant examined himself as PW.1 and got marked Exs.P.1 to P10. On appraisal of incriminating material, which was denied, statement of accused was recorded under Section 313 of Cr.PC. Thereafter accused examined himself as DW.1 and got marked Exs.D1 to D.7. 4. It was submitted, accused had set up various defence which though substantiated were overlooked and order of conviction passed. Despite, being challenged in appeal, same was confirmed without proper re-appreciation. Thus, orders impugned were perverse and warranted interference. 5. It was firstly submitted, even when accused had denied relationship of debtor and creditor and disputed financial - 4 - HC-KAR NC: 2025:KHC:45981 CRL.RP No. 639 of 2023 capacity of complainant to lend such heavy amount, even in reply to Demand Notice, complainant had failed to produce any material, firstly to establish his financial capacity to lend said amount to accused. Relying upon decision of Hon'ble Supreme Court in case of APS Forex Services (P) Ltd. v. Shakti International Fashion Linkers, reported in (2020) 12 SCC 724, it was submitted, on accused denying or disputing financial capacity of complainant to pay amount, onus would be on complainant to establish same with material. 6. In cross-examination of PW1, it was elicited lottery business was closed and complainant was vending vegetables and amount lent was not shown in income tax returns. It was further submitted, both Courts failed to notice that Ex.P1 was non-CTR cheque, but put up for collection only in year 2017, substantiating accused's contention that it was stale. On said grounds sought for allowing revision. 7. Respondent is served and unrepresented. 8. Heard learned counsel and perused material on record. - 5 - HC-KAR NC: 2025:KHC:45981 CRL.RP No. 639 of 2023 9. This revision petition is by accused challenging concurrent findings of conviction of accused for offence punishable under Section 138 of NI Act. As noted above, challenge is mainly on ground of perversity of findings. 10. Insofar as first contention denying financial capacity of complainant to lend huge amount of Rs.6,00,000/- to accused, it is indeed seen that such contention is also urged in Ex.P.6-reply to demand notice. Hon'ble Supreme Court in case of Sanjabij Tari v. Kishore S Borcar & Anr. reported in 2025 SCC OnLine SC 2069, referring to decision in APS Forex (supra) observed that, it was not an authority for proposition that in case of denial of complainant's financial capacity, presumption under Section 139 of NI Act would not be attracted and it was held that presumption under NI Act was rebuttable and when rebutted, onus would shift back to complainant. 11. Even, contention that Ex.P.1 was a non-CTR cheque and as such stale, would not hold much water as per circular of RBI, non-CTR (and Non-MICR) cheques continued to be legal tender until their discontinuation in 2022. Apart from above, - 6 - HC-KAR NC: 2025:KHC:45981 CRL.RP No. 639 of 2023 trial Court observed that accused had failed to lead any evidence to establish Ex.P.1 was issued as security for availing loan of Rs.15,000/- in year 2006. It is not established that said observation was contrary to material on record. 12. Insofar as contentions based on admission that lending money was not included in IT returns. Hon'ble Supreme Court in Sanjabij Tari (supra) has held to rebut presumptions under NI Act, it would be open for accused to examine Income Tax or Bank Officials and unless on reading of entire material would lead to an inference that complainant did not have wherewithal to lend amount as claimed, it would not be proper to withdraw presumption. In instant case, trial Court has observed that complainant had stated to be running lottery shop and after banning of said business, begun trading in ginger. Besides, Trial Court observed that Exs.P.7 to 9 showed that in month of October 2016, there was balance of Rs.6,02,920/-, Rs.4,47,870/- and Rs.93,552/- respectively in account of complainant. Same would dispel any doubt about financial capacity. - 7 - HC-KAR NC: 2025:KHC:45981 CRL.RP No. 639 of 2023 13. Thus, petitioner fails to establish that impugned judgments suffer from perversity as to warrant interference in revision. 14. Consequently, Revision petition is dismissed. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 28