- 1 - HC-KAR NC: 2025:KHC:40363 CRL.RP No. 1500 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 1500 OF 2025 BETWEEN: MR. SURESH NAYAR S/O MADAVA NAYAR, AGED ABOUT 46 YEARS, R/AT NAGANADKA HOUSE, NETTANIGE MUDNOOR VILLAGE, KARNOOR POST, ISHWARA MANGALA, PUTTUR, D K DISTRICT - 574 201. …PETITIONER (BY SRI MALATESH H., ADVOCATE) AND: MR. VIJAY RAI B., S/O VISHWANTHA RAI, AGED ABOUT 45 YEARS, R/AT VISHNU PRASAD, BARAMELU HOUSE, SAVANOOR POST, PUTTUR TALUK, D K DISTRICT - 574 201. PRESENTLY R/AT VINAYAKA NILAYA, B MOODA VILLAGE, GANDODI MODANKAP POST, B C ROAD,BANTWAL TALUK, D K DISTRICT - 574 211. …RESPONDENT THIS CRL.RP IS FILED U/S.397 R/W 401(FILED U/S.438 R/W SEC.442 BNSS) CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO A. SET ASIDE THE JUDGMENT OF CONVICTION DATED 02.04.2024, PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT BANTWAL D.K., IN C.C.NO.206/2022. B. SET ASIDE THE JUDGMENT DATED 02.08.2025 PASSED IN CRL.A.NO.105/2024 PASSED BY THE III ADDL DISTRICT AND SESSIONS JUDGE AT BANTWAL D.K., MANGALURU. Digitally signed by ANUSHA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:40363 CRL.RP No. 1500 of 2025 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 02.08.2025 passed by III Addl. District & Sessions Judge, Bantwal, in Crl.A.no.105/2024 confirming judgment of conviction and order of sentence dated 02.04.2022 passed by Senior Civil Judge and JMFC., Bantwal D.K., in C.C.no.206/2022, this revision petition is filed. 2. Sri H Malthesh, learned counsel for petitioner submitted, on allegation that petitioner, who was a close friend of respondent-complainant had borrowed a sum of Rs.1,25,000/- in February 2020 for his household requirement promising to repay same within six months and on demand had cheque no.658972 dated 04.03.2021 for Rs.1,25,000/- drawn on Vijaya Bank, Ishwaramangala Branch, Puttur Taluk. It was further alleged when cheque was presented for payment through complainant's bank ie Bank of Baroda, Bantwal Branch, on 04.03.2021, it returned with an endorsement 'insufficient funds' on 05.03.2021. And, on receipt of said intimation, - 3 - HC-KAR NC: 2025:KHC:40363 CRL.RP No. 1500 of 2025 complainant got issued legal notice on 13.03.2021, which was served on accused on 19.03.2021, to which accused sent a false reply and failed to repay amount within time, thereby committed offence punishable under Section 138 of Negotiable Instruments Act. 3. It was submitted, after service of summons, accused appeared and pleaded not guilty and claimed to be tried. Trial Court recorded evidence, wherein complainant examined himself as PW1 and got marked Exs.P.1 to 5. Thereafter statement of accused under Section 313 Cr.P.C. was recorded, wherein he denied incriminating material against him as false and led rebuttal evidence, examining himself and another as DWs 1 and 2 and got marked Exhibits D1 and D2. 4. It was submitted, defence set up by petitioner/accused were substantial, such as that there was no legal enforceable debt existing between accused and complainant; that cheque in question was issued to a third party namely one Subhash Rai, and complainant had failed to disclose date and place on which payment was made. It was further submitted in course of cross-examination, to a suggestion about date of payment, - 4 - HC-KAR NC: 2025:KHC:40363 CRL.RP No. 1500 of 2025 complainant had pleaded ignorance; to a subsequent suggestion, he had stated that it was near Puttur KSRTC bus stand, which indicated inconsistency in deposition of PW.1. 5. It was further submitted, in cross-examination of PW1, it was elicited that at time of receipt of alleged cheque, there was one more complaint filed by complainant against accused for offence punishable under Section 138 of NI Act, pending, which would render claim of complainant about having lent further amount unbelievable. But, trial Court and first appellate Court failed to appreciate material on record in proper perspective and by drawing presumption under Section 139 of NI Act, proceeded to convict petitioner/accused for offence under Section 138 of NI Act and sentenced him to pay fine of Rs.1,50,000/- and in default to undergo SI for six months. 6. Learned counsel for petitioner submitted, though scope for interference with concurrent findings in revision petition was limited, findings by both Courts suffered from perversity. It was firstly submitted, complainant had failed to disclose place and date of making payment. Even admission neither at time of making payment nor issuance of cheque, - 5 - HC-KAR NC: 2025:KHC:40363 CRL.RP No. 1500 of 2025 there were any witnesses, would also cast doubt. It was further submitted, complainant had merely stated that money was lent in February, 2020. It was submitted, as on date of alleged issuance of cheque by accused, another complaint filed for similar was pending and admitted by respondent/complainant. Same would substantiate probability of defence that there was no legally enforceable debt between complainant and accused. 7. It was submitted, though suggestions were made casting doubt about capacity of compliant to have lent money, no material was produced to substantiate same. Therefore judgment of conviction and order of sentence passed by both Courts were unsustainable and sought for setting aside same. 8. Heard and perused material on record. 9. It is seen this revision petition is by accused challenging concurrent findings holding accused guilty of commission of offence under Section 138 of NI Act. Hon'ble Supreme Court in K. Ravi v. State of T.N., reported in 2024 SCC OnLine SC 2283 and Amit Kapoor v. Ramesh Chander & Anr. reported in (2012) 9 SCC 460 have explained scope of Section 397 Cr. P.C. and held it to be normally confined to - 6 - HC-KAR NC: 2025:KHC:40363 CRL.RP No. 1500 of 2025 findings suffering from perversity or being contrary to provisions of Statute. 10. Insofar as first contention that there was no legally enforceable debt and that cheque in question was issued to some third party ie Subhash Rai. It is seen though accused had taken such contention, he failed to examine said Subhash Rai. Therefore said contention would require to be rejected. On other hand, said defence would admit signature of petitioner on cheque and there would be a presumption under Section 139 of NI Act in favour of holder of cheque and that it was issued towards legally enforceable debt. 11. Indeed, said presumption would be rebuttable and as held in decision of three Judges Bench in Rangappa Vs. Sri Mohan, reported in (2010) 11 SCC 441, that there would be no need for accused to lead specific evidence to substantiate his defence and it would be available for him to probablize his defence in cross-examination of complainant or from material placed on record by complainant. In instant case, petitioner has cross-examined complainant and only material elicitation as submitted are that he does not remember date and place of - 7 - HC-KAR NC: 2025:KHC:40363 CRL.RP No. 1500 of 2025 payment of money and thereafter stating that payment was made near Puttur Bus stand. 12. To a query, about date of cross-examination, learned counsel for petitioner submitted, it was on 21.11.2023. As per complainant, transaction was in February 2020 and cheque was issued on 13.03.2021 i.e., more than three years after date of transaction. Mere inconsistency and omission to depose with mathematical precision about date and place of payment would not render deposition of witnesses in a criminal trial to be acceptable, especially, when it is after lapse of substantial time. Therefore contention of petitioner about deposition of PW1 being inconsistent and liable for rejection on said count, would not be justified. 13. Insofar as last contention that PW1 admitted cheque in question was accepted by complainant even when earlier cheque allegedly issued by accused was dishonoured and complaint filed being pending would not hold water, as there is explanation by complainant that amount paid on second occasion was considering assurance by accused, to repay amount by selling immovable property. Sufficient particulars of - 8 - HC-KAR NC: 2025:KHC:40363 CRL.RP No. 1500 of 2025 property are also disclosed. Thus, it is seen that while passing impugned judgment, trial Court referred to material on record and also taken note of petitioner's contention about cheque having issued to third party to conclude that there is admission by accused about his signature on cheque which attracted presumption about legally enforceable debt. It has also referred to effort by accused in cross-examination to rebut presumption and proceed to pass order of conviction. 14. Likewise, first appellate Court has re-appreciated entire material on record and confirmed order passed by trial Court by assigning reasons. Since judgment passed by both Courts are with reference to material on record and by assigning proper reasons, no case of perversity is made out. Hence, I do not find any justification to entertain revision petition. Revision petition is accordingly dismissed. Sd/- (RAVI V HOSMANI) JUDGE Psg*:List No.: 1 Sl No.: 36