- 1 - NC: 2025:KHC-D:1881 CRL.RP No. 100368 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL REVISION PETITION NO.100368 OF 2022 [397(CR.PC)/438(BNSS)] BETWEEN: SHRI UDAY S/O. GOPALRAO KULKARNI, AGE: 45 YEARS, OCC. BUSINESS, R/O. H.NO.254, KIRANODAYA BLDG., NEAR JAIN TEMPLE, HINDAWADI, BELAGAVI-590001. … PETITIONER (BY SRI K.S.KORISHETTAR, ADVOCATE) AND: BELAGAUM ZILLA RANI CHANNAMMA MAHILA SAHAKARI BANK NIYAMAT, BELAGAVI, REPRESENTED BY ITS MANAGER, SHRI VINAYAK C. YALLIGAR, AGE: 37 YEARS, OCC. SERVICE, R/O. BELAGAUM ZILLA RANI CHANNAMMA MAHILA SAHAKARI BANK NIYAMAT, KLE DENTAL COLLEGE CAMPUS, NEHRU NAGAR, BELAGAVI-590001. … RESPONDENT (BY SRI S.S.KULKARNI AND SRI. MAHANTESH MATHAD, ADVOCATES (ABSENT)) THIS CRIMINAL REVISION PETITION IS FILED U/S.397 R/W. 401 OF CR.PC., SEEKING TO SET ASIDE THE JUDGMENT DATED 01.09.2022 IN CRL.APPEAL NO.122/2019 PASSED BY THE IX ADDL. SESSIONS JUDGE, BELAGAVI WHEREBY CONFIRMING THE JUDGMENT DATED 14.03.2019 PASED BY THE V JMFC COURT, BELAGAVI IN C.C.NO.2425/2017, FOR THE OFFENCE U/S.138 OF N.I.ACT AND THEREBY ACQUIT THE PETITIONER/ACCUSED AND GRANT ANY OTHER RELIEFS AS THIS HON’BLE COURT DEEMS FIT, IN THE INTEREST OF JUSTICE. MANJANNA E Digitally signed by MANJANNA E Date: 2025.02.03 14:20:57 +0530 - 2 - NC: 2025:KHC-D:1881 CRL.RP No. 100368 of 2022 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) Challenging judgment/order dated 01.09.2022 passed by IX Addl. Sessions Judge, Belagavi (‘Appellate Court’, for short) in Crl.A.no.122/2019 and judgment/order dated 14.03.2019 passed by V J.M.F.C., Belagavi (‘Trial Court’, for short) in C.C.no.2425/2017, this revision petition is filed. 2. Sri KS Korishettar, learned counsel for petitioner submitted respondent is a Co-operative Bank, petitioner is its member. As such, petitioner had availed financial assistance to tune of Rs.2,50,000/- from respondent on 22.07.2011. Though loan installments were serviced for some time, due to financial difficulty there was default. However petitioner was ready and willing to clear balance amount by availing one time settlement. Such being case, respondent filed C.C.no.2425/2017 alleging that petitioner herein had issued Cheque no.94647 drawn on ING Vysya Bank, Belgaum Branch, College Road, Belagavi for a sum of Rs.3,91,153/- towards discharge of his loan liability with Bank. When same was presented for collection through its - 3 - NC: 2025:KHC-D:1881 CRL.RP No. 100368 of 2022 banker namely IDBI Bank, College Road Branch, Belagavi, it returned with endorsement ‘account closed’ on 17.10.2017. Thereafter, complainant had got issued demand notice through counsel on 03.11.2017. Said notice was served on 06.11.2017. Since even after receipt of notice, amount was not paid. Complainant had filed complaint before trial Court. 3. It was submitted upon appearance, petitioner had opposed petition. During proceedings before trial Court, petitioner set up two defences. Firstly that he had repaid 80% of loan amount to Bank and Ex.P1-cheque was taken by society towards security and secondly no notice was served on Rukmini Marbles and Granites the proprietary concern. It was submitted, without proper consideration of above defences trial Court extended benefit of presumption under Section 139 of Negotiable Instruments Act, 1881 to respondent – complainant and convicted petitioner for offence under Section 138 of N.I. Act and directing him to pay fine amount of Rs.4,30,000/- or in default to undergo simple imprisonment for a period of 1 month. Aggrieved, petitioner filed Crl.A.no.122/2019. Though petitioner urged various grounds including defences set up by him before trial Court, Appellate Court without application of - 4 - NC: 2025:KHC-D:1881 CRL.RP No. 100368 of 2022 judicious mind to facts and circumstances merely on surmises proceeded to confirm order passed by trial Court and dismissed appeal. Aggrieved, petitioner was before this Court. Learned counsel therefore prayed for setting aside of both judgments and orders by allowing this revision petition. 4. None appears for respondent. 5. Heard learned counsel and perused impugned judgment and order. 6. From above, point that arises for consideration is: “Whether petitioner has made out a case for interference with concurrent findings of trial Court as well as Appellate Court?” 7. At outset, it is seen that this revision petition is filed under Section 397 r/w 401 of CrPC against concurrent findings. Hon’ble Supreme Court in Amit Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460 has clarified contours of revisional jurisdiction under above provisions and held: “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 - 5 - NC: 2025:KHC-D:1881 CRL.RP No. 100368 of 2022 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 or suspicion of the same would not be a sufficient ground for interference in such cases.” 8. At outset, it is seen there is no dispute about petitioner being Member of complainant’s – Society and about availing of financial assistance from it. There is also no dispute about issuance of cheque. While passing impugned judgment, trial Court has verified about compliance with legal requirement of due presentation, receipt of intimation of dishonor, issuance of notice and filing of complaint within time period stipulated under Section 138 of N.I. Act. In view of fact that execution of cheque was admitted, it rightly extended presumption under Section 139 of N.I. Act. 9. Admittedly, petitioner did not step into witness box to lead evidence to substantiate reasonable doubt to rebut presumption under Section 139 of N.I. Act. Though, Hon’ble Supreme Court in case of Rangappa v. Sri Mohan, reported in - 6 - NC: 2025:KHC-D:1881 CRL.RP No. 100368 of 2022 2010 (11) SCC 441, has held that it would not be necessary for accused to step into witness box to rebut presumption and same could be achieved even by cross-examination or on material produced by complainant himself, in instant case, except suggestion that loan account outstanding was not produced. Two defenses raised namely i.e. accused has paid 80% of loan amount and noticed was served on Sri Uday G. Kulkarni and not on Rukmini Marbels and Granites, were examined. 10. Trial Court observed that Ex.P7 – Loan account statement would indicate that accused had used entire cash credit amount and there was no entry about repayment of 80%. Merely raising doubt would not suffice to rebut presumption accused ought to have produced any material to probabilise same. In absence, rejection of said defense would appear just and proper. 11. Insofar as other contention that no notice was issued to Rukmini Marbels and Granites, it is seen that Rukmini Marbels and Granites is a proprietorship belonging to Sri Uday G. Kulkarni. Admittedly, notice was issued to him and served as - 7 - NC: 2025:KHC-D:1881 CRL.RP No. 100368 of 2022 per Exs.P1 to P3. Trial Court referred to decision of Hon’ble Supreme Court in M/s. Kumar Exports v. M/s. Sharma Carpets, reported in 2009 (2) SCC 513 to reject said contention. Even Appellate Court on independent assessment concurred with findings. Ground now urged that petitioner was ready to clear loan if he was availed one time settlement by respondent – Bank would not be available for interference in revision. 12. 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,GRD CT:PA LIST NO.: 1 SL NO.: 31