- 1 - HC-KAR NC: 2025:KHC:51694 CRL.RP No. 331 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 331 OF 2023 BETWEEN: MR. ABOOBAKKAR N.B., S/O LATE B.K.IBRAHIM, AGED ABOUT 54 YEARS, R/A 6-100/12/3, 2ND FLOOR, HARUSHA COMPLEX, SURATHKAL, MANGALURU - 575 014. …PETITIONER [BY SRI NATARAJU T., ADVOCATE] AND: MR. G.R.SHETTY, S/O A MONAPPA SHETTY, AGED ABOUT 59 YEARS, R/A SHRI DURGA MALEMAR ROAD, DEREBAIL, KONCHADY, ASHOKNAGAR, MANGALURU - 575 002. …RESPONDENT [BY SRI GANAPATHI BHAT, ADVOCATE FOR SRI VENKATESH SOMAREDDI, ADVOCATE] THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE ORDER DATED 09.03.2023 PASSED BY III ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K. MANGALURU IN CRL.APPEAL NO.82/2022 AND THE JUDGMENT AND ORDER DATED 19.04.2022 PASSED IN C.C. NO.788/2017 ON THE FILE OF JMFC V COURT, D.K. MANGALURU, BY DISMISSING THE COMPLAINANT OF THE RESPONDENT/COMPLAINANT. THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: Digitally signed by ANUSHA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:51694 CRL.RP No. 331 of 2023 CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL ORDER Challenging judgment dated 09.03.2023 passed by III Additional District and Sessions Judge, D.K., Mangaluru, in Crl.A.no.82/2022 confirming judgment dated 19.04.2022 passed by learned JMFC (V Court), D.K., Mangaluru, in C.C.no.788/2017, this revision petition is filed. 2. Sri Nataraju T., learned counsel for petitioner (accused) submitted that revision petition was by accused challenging concurrent erroneous judgments, convicting him for offence punishable under Section 138 of Negotiable Instruments Act, 1881, ('NI Act', for short). 3. It was submitted, respondent (complainant) had filed private complaint under Section 200 of Code of Criminal Procedure, 1973, ('Cr.PC', for short) alleging that accused was an Engineer well-known to complainant who was a business man. On 04.04.2016, accused had borrowed sum of Rs.5,00,000/- to meet his urgent needs agreeing to repay it within nine months with 15% interest per annum, executed a promissory note in presence of witnesses and issued cheque - 3 - HC-KAR NC: 2025:KHC:51694 CRL.RP No. 331 of 2023 bearing no.000134 drawn on HDFC Bank, Jayanagar Branch, Bengaluru for Rs.5,75,000/- towards repayment, which on presentation, returned dishonoured with endorsement 'funds insufficient' on 29.06.2017 and even when demand notice got issued by complainant was served, accused failed to repay amount and thereby committed offence punishable under Section 138 of NI Act. 4. It was submitted, on appearance, accused denied charge and sought trial. Complainant examined himself and another as PWs.1 and 2 and got marked Exhibits P1 to P9. Thereafter, when accused was appraised of incriminating material, he denied same and his statement under Section 313 of CrPC was recorded. Thereafter accused examined himself as DW.1, but did not mark any documents. 5. It was submitted, even though accused had denied/disputed existence of legally enforceable debt, complainant failed to produce any material to establish lending, and relied on Ex.P6 - promissory note, to establish transactional relationship. It was submitted, Ex.P6 - promissory note was executed on 03.04.2016, prior to date of lending - 4 - HC-KAR NC: 2025:KHC:51694 CRL.RP No. 331 of 2023 money and being without consideration would be void. It was further submitted, though cheque and promissory note were executed, there was no actual payment of money. 6. Apart from above, there was procedural error, as recording of evidence of accused was by affidavit in lieu of examination-in-chief. In support of said contention, reliance was placed on judgment in WP no.3519/2024 disposed of on 19.07.2024 by this Court and by Hon'ble Supreme Court in case of Mandvi Co-operative Bank Ltc. v. Nimesh B. Thakore reported in 2010 (3) SCC 83. 7. Without appreciation of above factors, accused was convicted and Appellate Court erred in confirming same without proper re-appreciation. As such impugned judgments suffered from perversity calling for interference. 8. On other hand, Sri Ganapathi Bhat, Advocate, appearing for Sri Venkatesh Somareddi, learned counsel for respondent - complainant opposed petition. It was submitted, Hon'ble Supreme Court in case of Indian Bank Association v. Union of India reported in (2014) 5 SCC 590, clarified that - 5 - HC-KAR NC: 2025:KHC:51694 CRL.RP No. 331 of 2023 ratio in Mandvi's case (supra), would not apply where evidence recorded was in full and not in summary manner. This Court in Afzal Pasha v. Mohamed Ameerjan reported in ILR 2016 KAR 4145, had clarified that recording of defence evidence by way of affidavits was permissible. Same was reiterated in Crl.RP.no.1307/2010 disposed of on 15.10.2020 on ground that accused had not raised any objection and filed affidavit examination-in-chief voluntarily. Similar view was expressed in Crl.RP.no.100299/2021 disposed of on 15.09.2023 and Crl.P.no.9172/2018 disposed of on 12.06.2024. Reliance was also placed on decision in case of - Rakesh Bhai Maganbhai Barot reported in 2019 SCC OnLine GUJ 6936. It was submitted trial court and first appellate Court on appreciation of entire material on record arrived at well reasoned findings, which did not call interference and prayed for dismissal of same. 9. Heard learned counsel, impugned judgments and perused entire material on record. 10. This revision petition is by accused challenging concurrent judgments convicting him for offences punishable - 6 - HC-KAR NC: 2025:KHC:51694 CRL.RP No. 331 of 2023 under Section 138 of NI Act on ground of perversity as well as on ground of being contrary to provisions of law. 11. At outset, contention about error in procedure i.e. recording deposition of accused by accepting examination-in- chief by way of affidavit, requires to be rejected in limine as accused has firstly not established any prejudice caused and secondly on ground that accused cannot take advantage of one's own wrong and thirdly in view of law laid down in Indian Bank Association, Afzal Pasha and Rakesh Bhai Maganbhai Barot (supra). 12. Insofar as contention that Ex.P.6 relied upon to establish legally enforceable debt was void having been executed prior to date of lending, complainant relied on Ex.P.6 in corroboration of his claim that accused had borrowed money from complainant and issued cheque in question towards repayment. While passing impugned judgment, trial Court noted that there is categorical admission by accused about his signature on Ex.P.1 - cheque and Ex.P6 corroborated complainant's claim, attracting presumption under Section 118 and 139 of NI Act. Apart from above, Ex.P.1 bears name of - 7 - HC-KAR NC: 2025:KHC:51694 CRL.RP No. 331 of 2023 complainant and it is not established that cheque was filled up by complainant without consent of accused. 13. In any case, one of defence set up was that cheque was issued as surety to Zamaluddin on complainant's Chit subscription. As rightly noted by trial Court, failure on part of accused to have issued stop payment instructions to his banker would be a material omission. Above factors weighed with both Courts in passing orders of conviction. Thus, it is seen that reason assigned for conclusions are based on detailed examination of material on record. Therefore, contention that findings suffer from perversity would be unacceptable. No ground for interference. Revision petition is dismissed. Sd/- (RAVI V HOSMANI) JUDGE Psg*/GRD List No.: 1 Sl No.: 79