- 1 - HC-KAR NC: 2025:KHC:49662 CRL.RP No. 1621 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 1621 OF 2023 BETWEEN: SHANKAR PRAHLAD VHATKAR AGED ABOUT 35 YEARS, OCC BUSINESS, AUTHORIZED SIGNATORY, OF MS/ OM BUILDER AND DEVELOPERS, R/AT PLOT NO.189, FLAT NO.02, SECTOR-31, VASHI VILLAGE, VASHI NAVI MUMBAI-400 705 …PETITIONER (BY SRI. BHOJARAJA S.V., ADVOCATE) AND: SHAILENDRA MISHRA S/O VIRENDRA KUMAR MISHRA, AGED ABOUT 47 YEARS, OCC: SERVICE, R/AT 27/139, NO.6, THANK SHORE ROAD, MCHS COLONY, 4TH B CROSS, 29TH MAIN ROAD, T M LAYOUT, BANGALORE-560 076 …RESPONDENT (BY SRI. DEVENDRA BABU C.A., ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C., PRAYING TO SET ASIDE IMPUGNED JUDGMENT PASSED BY LXXIV ADDITIONAL Digitally signed by ANUSHA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:49662 CRL.RP No. 1621 of 2023 CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU (CCH-75) IN CRL.A.NO.25010/2023 AND ORDER DATED 12.12.2022 PASSED BY XIV ADDL.C.M.M., BENGALURU IN C.C.NO.57648/2019 AND ACQUIT PETITIONER/ACCUSED. THIS PETITION IS COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL ORDER Challenging judgment dated 18.10.2023 passed by LXXIV Addl. City Civil and Sessions Judge, Mayohall Unit, Bengaluru, in Crl.A.no.25010/2023 confirming judgment dated 12.12.2022 passed by XIV Addl. Chief Metropolitan Magistrate, Mayohall Unit, Bengaluru, in C.C.no.57648/2019, this revision petition is filed. 2. Sri SV Bhojaraja, learned counsel for petitioner submitted, petition was by accused against concurrent findings convicting him for offence punishable under Section 138 of Negotiable Instruments Act, 1881, ('NI Act' for short). 3. It was submitted, respondent (complainant) has filed private complaint under Section 200 of Code of Criminal - 3 - HC-KAR NC: 2025:KHC:49662 CRL.RP No. 1621 of 2023 Procedure, 1978 ('CrPC' for short) alleging that accused were running business under name and style M/s.OM Builders and Developers and Expertz Enterprises and that they had planned to lease Hotel at Goa and for said purpose, obtained Rs.11 Lakhs from complainant. Said amount was transferred online and cheque dated 29.10.2018 drawn on HDFC Bank, Bengaluru, but, later accused stated that property was leased to someone else and failed to hand over premises. On demand for return of money paid, accused issued two cheques bearing no.000828 dated 30.05.2019 and 000827 dated 15.05.2019 for Rs.3,50,000/- each drawn on HDFC Bank, Sion Panvel Road, Navi Mumbai, which when presented for collection, returned dishonored with endorsement 'insufficient funds' on 20.07.2019 and thereafter, accused failed to repay amount or reply even when demand notice dated 13.08.2019 was served on accused no.1 on 16.08.2019 thereby committed offence punishable under Section 138 of NI Act. 4. It was submitted, on appearance, accused denied charged and sought trial. And, complainant examined himself as CW.1 and Viswajit Bhagawath (until then arrayed as accused no.2 and later deleted) as CW.2 and got marked Exhibits P1 to - 4 - HC-KAR NC: 2025:KHC:49662 CRL.RP No. 1621 of 2023 P13. Thereafter, trial Court explained incriminating material to accused no.1. Same was denied and his statement under Section 313 of CrPC was recorded. Therefore, trial Court proceeded to pass impugned judgment convicting accused. It was submitted, even appeal filed thereagainst was dismissed without proper re-appreciation, leading to this revision petition. 5. It was submitted, in cross-examination of complainant witnesses, accused has substantiated his defence and despite establishing same, trial Court erred in convicting accused. Therefore, impugned judgments suffered from perversity. It was submitted, at time of filing complaint, complainant had arrayed petitioner herein as accused no.1 and Viswajit Bhagawath as accused no.2. In complaint, he had made statement that he had made payment of Rs.11 Lakhs to accused. It was submitted, entire sum of Rs.11 Lakhs was not paid to accused no.1. In fact, only a sum of Rs.2 Lakhs was paid to accused no.1 and complainant admitted Rs.9 Lakhs was paid to accused no.2. But commencement of trial, complainant voluntarily deleted accused no.2 and proceeded to recover entire balance amount from accused no.1. - 5 - HC-KAR NC: 2025:KHC:49662 CRL.RP No. 1621 of 2023 6. It was submitted, during cross-examination of PW.1, it was elicited that Rs.2 Lakhs was transferred to accused no.1 and balance of Rs.9 Lakhs was transferred to bank account of M/s.Expertz Enterprises belonging to Viswajit Bhagawath. Thereafter, both had transferred some amount to him, which was towards interest. It was submitted, said admission would probabalize defence of accused no.1 that he had received sum of Rs.2 Lakhs and repaid same to complainant. It was submitted, while passing impugned judgments, trial Court and Appellate Court failed to appreciate material on record in proper perspective and same resulted in perverse judgments. On said grounds, sought for allowing revision petition. 7. On other hand, Sri CA Devendra Babu, learned counsel for complainant opposed revision petition. It was submitted, both Courts have appreciated entire material on record and arrived at well reasoned conclusions and same did not suffer from perversity and do not call for interference. On above ground, sought dismissal. - 6 - HC-KAR NC: 2025:KHC:49662 CRL.RP No. 1621 of 2023 8. Heard learned counsel and perused impugned judgments and record. 9. This revision petition is by accused against concurrent findings convicting him for offence punishable under Section 138 of NI Act, on ground of perversity, firstly on ground that amount in cheque was more than admitted amount. Indeed in cross-examination of CW.1-complainant, accused no.1 elicited following: "I have not transferred any amount in the name of home builders but I have transferred Rs. 11,00,000/- to Shankar and Vishwajith. I have transfered Rs.2,00,000/- and balance of 9,00,000/- to the Bank Account of Experts Enterprises belonging to Vishwajith. Shankar and Vishwajith have transfered some amount to me but I can not tell without reference to the records, what amount has been transferred by Shankar." 10. Above admission would mean accused no.1 is trying to establish himself as separate and individual borrower than accused no.2 from complainant and same was repaid. In cross- examination of CW.1 yet another defence taken is that complainant had visited office of accused i.e,. M/s.OM Builders and Developers in Vashi, Mumbai, and while his staff were busy - 7 - HC-KAR NC: 2025:KHC:49662 CRL.RP No. 1621 of 2023 in work, complainant had taken three cheques without their knowledge. Perusal of Exs.P1 and 2 - cheques would reveal that they bear name of complainant and issued for sum of Rs.3,50,000/- each. Ex.P3-endorsement by Bank would indicate reason for dishonor as 'insufficient funds'. In case, cheques were taken away without permission or stolen as is sought to be contended, accused ought to have given police complaint or issued 'stop payment' intimation to Bank. However, specific date on which cheques were taken away is not suggested. This would dilute force of such defence. It is also seen, there is no cross-examination regarding handwriting on cheque. On other hand, there is clear admission about signature of accused no.1 on Exs.P1 and 2 - cheques. 11. Besides above, it is seen that there is no material produced to establish that accused no.1 and 2 were not operating together while receiving funds from complainant. In fact, accused no.2, after deletion from array of parties is examined as CW.2 and nothing material is elicited from his cross-examination. Thus, there is no material to indicate that accused no.1 had received Rs.2 Lakhs from complainant separately. Consequently, contention that amount mentioned in - 8 - HC-KAR NC: 2025:KHC:49662 CRL.RP No. 1621 of 2023 cheque was not borrowed is without basis. Admission of signature and failure to establish possession of cheques by complainant was illegal or unauthorized would attract, statutory presumption under Section 139 of NI Act. Efforts by accused would not be sufficient to upset said presumption. Thus, conclusions arrived at by trial Court and Appellate Court are in accordance with law. No case for perversity is established. Consequently, revision petition is dismissed. Sd/- (RAVI V HOSMANI) JUDGE AV List No.: 1 Sl No.: 42