- 1 - HC-KAR NC: 2025:KHC:51873 CRL.RP No. 494 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 494 OF 2023 BETWEEN: MR. VINCENT D'COSTA AGED ABOUT 54 YEARS S/O LATE JEROME D'COSTA R/AT DREAM KITCHEN AND INTERIORS ESSEL WILCON, BELOW RADHA MEDICALS BENDOORWELL CIRCLE, MANGALORE-01. …PETITIONER (BY MISS PRASANNA K., ADVOCATE) AND: MR. ANIL MANTAL AGED ABOUT 48 YEARS S/O O.P. MANTAL R/AT PROPRIETOR OF M/S MAKARANA MARBLE AND GRANITE CENTRE NH 66, HOSABETTU-574227 MANGALORE, D.K. …RESPONDENT (BY SRI RAKESH KINI, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH 401 OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 06.04.2022 IN C.C.NO.1289/2016 ON THE FILE OF THE J.M.F.C. (V COURT), MANGALURU, D.K AND SET ASIDE THE JUDGMENT AND ORDER DATED 13.02.2023 IN CRL.A.NO.78/2022 BEFORE THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:51873 CRL.RP No. 494 of 2023 CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL ORDER Challenging judgment dated 13.02.2023 passed by II Additional District and Session Judge, D.K., Mangaluru, in Crl.A.no.78/2022 confirming judgment of conviction and order of sentence dated 06.04.2022 passed by J.M.F.C (V Court), Mangaluru, D.K., in C.C.no.1289/2016, this revision petition is filed. 2. Miss Prasanna K., learned counsel for petitioner (accused) submitted that impugned proceedings were initiated on a private complaint filed by respondent (complainant) under Section 200 of Code of Criminal Procedure, 1973, ('CrPC', for short) stating that complainant was Proprietor of M/s. Makarana Marble and Granite dealing in sale of Marble, Granite Slab and Tiles etc., where accused purchased material on credit basis as under. Invoice Nos. Date Amount 478 29.10.2014 Rs.15,429/- 552 15.12.2014 Rs.3,950/- 572 23.12.2014 Rs.2,748/- 636 02.02.2015 Rs.78,316/- 745 21.03.2015 Rs.91,113/- - 3 - HC-KAR NC: 2025:KHC:51873 CRL.RP No. 494 of 2023 3. It was stated as per above invoices, accused had purchased material worth Rs.1,91,556/- and same was due. It was further stated that said balance was confirmed by accused in letters of confirmation dated 14.07.2016 undertaking to pay said amount before 15.09.2016 and towards part payment of said amount, accused had issued four cheques for total sum of Rs.1,85,000/- as under. Sl. nos. Cheque nos. & Date Amount Bank a 024215 Dtd:21.10.2016 Rs.50,000/- b 024216 Dtd:21.10.2016 Rs.50,000/ c 024217 Dtd:24.10.2016 Rs.50,000/ d 024218 Dtd:24.10.2016 Rs.35,000/ Drawn on Axis Bank, Mangalore Branch, Mangalore 4. And when said cheques were presented, they returned dishonoured with endorsement 'Account Closed' on 26.10.2016 and even when demand notice got issued by complainant on 01.11.2016 was served, accused failed to repay amount, thereby committed offence punishable under Section 138 of Negotiable Instruments Act, 1881, ('NI Act', for short). 5. It was submitted, on appearance, accused denied charges and sought trial. Therefore, complainant deposed as - 4 - HC-KAR NC: 2025:KHC:51873 CRL.RP No. 494 of 2023 PW.1 and got marked documents as Exhibits-P1 to P23. On being explained incriminating material, accused denied same and did not choose to lead evidence. 6. It was submitted, accused had taken substantial defence firstly, claiming that cheque in question was issued as security for a transaction in year 2010, which was cleared, but cheque misused by complainant to file present proceedings. Secondly, Exs.P8 and P9 - account confirmation letters did not refer to particular transactions i.e. invoice numbers and therefore confirmation or acknowledgment cannot be stated to be with regard to complainant's claim in question. Therefore finding of both Courts that issuance of Exs.P1 to P4 - cheques was towards legally enforceable debt was contrary to material on record and as such, liable for interference and sought for allowing revision petition. 7. On other hand, Sri Rakesh Kini, learned counsel for complainant opposed revision petition. It was submitted, both Courts had concurrently held accused guilty of offence punishable under Section 138 of NI Act, by reasoned findings and same did not call for interference. Insofar as contention - 5 - HC-KAR NC: 2025:KHC:51873 CRL.RP No. 494 of 2023 that cheque was issued as security, it was submitted, there was absolutely no material to substantiate same. On other hand, complainant had not only produced account confirmation letters dated 31.01.2015 and 31.03.2016 as per Exs.P8 and P9, which bore acknowledgment/affirmation by accused, but had also produced separate hand written acknowledgments as per Exs.P10 and P11. 8. Apart from above, complainant had produced invoices, whereunder accused was required to make payment and E-Sugama extracts for dispatch as well as extracts of Cash book, Ledger Extract and Audit report maintained by complainant in course of his business. These documents would substantiate transactions. It was submitted, mere adoption of defence denying transaction without producing any specific material would not be sufficient to upset presumption in favour of complainant under Section 139 of NI Act. Therefore, no case of perversity was established and revision petition was without merit. 9. Heard learned counsel, perused impugned judgments and record. - 6 - HC-KAR NC: 2025:KHC:51873 CRL.RP No. 494 of 2023 10. This revision petition is by accused challenging concurrent findings, convicting accused for offence punishable under Section 138 of NI Act, on grounds of perversity, firstly, that cheque in question was issued as security for transaction in year 2010 which was cleared, but cheque was misused. Admittedly, accused did not issue reply to demand notice, nor stepped into witness-box. Same would invite an inference against accused. 11. Further, cross-examination of PW.1 does not indicate any elicitation as would probablize defence setup. Indeed, there is a suggestion about issuance of Exs.P1 to P4 - cheques for security purpose in year 2010, which is denied. It is also seen, reason for dishonour of cheques is 'insufficient funds' and for 'not stop payment'. In case, cheques in question were issued as security for an earlier transaction which was cleared, accused would have issued instructions to Bank for stopping payment on said cheques or issued notice for their return. Absence of same would also attract inference against accused. - 7 - HC-KAR NC: 2025:KHC:51873 CRL.RP No. 494 of 2023 12. On other hand, contention about issuance of cheque as security for earlier transaction would admit signature of accused on cheque as well as its issuance to complainant. Same in view of ratio laid down by Hon'ble Supreme Court in case of Bir Singh v. Mukesh Kumar reported in (2019) 4 SCC 197, attract presumption under Section 139 of NI Act, in favour of complainant. Merely by making suggestions which are denied, said presumption cannot be upset. 13. Moreover, while passing impugned judgment, trial Court has not only taken note of above factors and found claim of complainant being consistent and nothing material having been elicited in cross-examination of PW.1. Therefore, findings of trial Court and Appellate Court in favour of complainant, convicting accused based on presumption cannot be stated to be suffering from perversity i.e., finding without basis or finding being contrary to material on record. No ground for interference made out, revision petition is dismissed. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 23