Karnataka High Court
Smt. Anuja W/O Ramesh Desai vs Shree Bhakti Mahila Co-Op, Credit ... on 12 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2025:KHC-D:2816
CRL.RP No. 100185 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100185 OF 2022
[397(CR.PC)/438(BNSS)]
BETWEEN:
SMT.ANUJA W/O. RAMESH DESAI,
AGE: 41 YEARS, OCC: HOUSEWIFE,
R/O. HOUSE NO.341, CHAVADI GALLI,
BELAGAVI-590001.
... PETITIONER
(BY SRI KS KORISHETTAR, ADVOCATE)
AND:
SHREE BHAKTI MAHILA CO-OP. CREDIT SOCIETY LTD.,
RAMALINGKHIND GALLI,
REPRESENTED BY ITS CLERK,
SHRI TANAJI S/O. KRISHNA GHORE,
AGE: 39 YEARS, OCC: SERVICE,
Digitally
R/O. RAMALINGKHIND GALLI,
signed by
MALLIKARJUN
MALLIKARJUN RUDRAYYA
RUDRAYYA KALMATH
BELAGAVI-590001.
KALMATH Date:
2025.02.13
14:37:22
... RESPONDENT
+0530
(BY SRI DEEPAK S.KULKARNI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C., SEEKING TO SET ASIDE
THE JUDGMENT DATED 26.04.2022, IN CRL.APPEAL NO.514/2019
PASSED BY THE XI ADDL. SESSIONS JUDGE, BELAGAVI, WHEREBY
CONFIRMING THE JUDGMENT DATED 16.11.2019 PASSED BY THE
VIII JMFC COURT, BELAGAVI IN C.C.NO.1467/2017, FOR THE
OFFENCES UNDER SECTION 138 OF N.I. ACT AND THEREBY ACQUIT
THE PETITIONER/ACCUSED AND GRANT ANY OTHER RELIEFS.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2025:KHC-D:2816
CRL.RP No. 100185 of 2022
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) Challenging judgment/order dated 26.04.2022 passed by XI Additional Sessions Judge, Belagavi ('Appellate Court', for short) in Crl.A.no.514/2019 and judgment of conviction and order of sentence dated 16.11.2019 passed by VIII J.M.F.C., Belagavi ('Trial Court', for short) in C.C.no.1467/2017, this revision petition is filed.
2. Sri KS Korishettar, learned counsel for petitioner submitted as a member of respondent Co-operative Society, she had availed financial assistance to tune of Rs.2,00,000/- from respondent on 28.10.2013. After paying few installments, she defaulted due to financial hardship. But was ever willing to repay amount, even under one time settlement. But, respondent filed C.C.no.1467/2017 alleging that petitioner herein had issued Cheque no.245924 dated 21.12.2015 drawn on ICICI Bank, RPD Cross Branch, Belagavi for a sum of Rs.2,64,420/- towards balance amount. But when presented, it returned with endorsement 'funds insufficient' on 23.12.2015. Complainant had got issued demand notice on 19.01.2016. -3-
NC: 2025:KHC-D:2816 CRL.RP No. 100185 of 2022 Said notice was served on 20.01.2016. As amount was not paid even after lapse of fifteen days, a private complaint was filed before trial Court.
3. On appearance, when petitioner denied charges, matter was put trial, wherein respondent - complainant examined two witnesses as PWs.1 and 2 and got marked Exs.P1 to P10, while respondent did not examine any witness, but cross-examined complainant's witnesses. Main defences set-up were, petitioner had not deliberately defaulted in repayment, that Ex.P1 - cheque was given as security only and though financial assistance availed was for Rs.2,00,000/- and petitioner had paid some installments, complainant had filled cheque amount as Rs.2,64,420/- indicating unreasonable or exorbitant rate of interest. Without proper consideration, trial Court applied presumption under Section 118 and 139 of Negotiable Instruments Act, 1881 ('NI Act'), convicted petitioner for offence under Section 138 of NI Act and directing him to pay fine amount of Rs.4,08,000/- and in default to undergo simple imprisonment for a period of 6 months. -4-
NC: 2025:KHC-D:2816 CRL.RP No. 100185 of 2022
4. Aggrieved, petitioner filed Crl.A.no.514/2019. Though petitioner urged various grounds including defences set up by her before trial Court, Appellate Court without application of judicious mind to facts and circumstances merely on surmises proceeded to confirm order passed by trial Court and dismissed appeal. Aggrieved, present revision was filed.
5. It was submitted, as contended by complainant before trial Court, Ex.P1 was not issued for discharging loan liability. It was merely issued as security for loan. Therefore, without any material to indicate that cheque was towards legally recoverable debt, trial Court had convicted petitioner. Further, when loan availed was only Rs.2,00,000/- and petitioner had paid a part of it, claiming amount of Rs.2,64,420/- by complainant as outstanding amount was not justified. Said contentions were not properly appreciated by both Courts and sought for setting aside of same by allowing revision petition.
6. On other hand, Sri Deepak S. Kulkarni, learned counsel for respondent sought to sustain impugned order by contending that none of grounds urged were tenable and both -5- NC: 2025:KHC-D:2816 CRL.RP No. 100185 of 2022 Courts on due consideration had passed impugned judgments/ orders and there was no scope for interference in revision against concurrent findings.
7. Heard learned counsel and perused impugned judgment and order.
8. 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?"
9. At outset, it is seen that this revision petition is filed under Section 397 read with Section 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 India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find -6- NC: 2025:KHC-D:2816 CRL.RP No. 100185 of 2022 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."
10. At outset, it is seen petitioner has not disputed availing financial assistance from respondent - complainant. Even though contention is urged that Ex.P1 - cheque was issued only for security purposes, same would not hold good in view of ratio laid down by Hon'ble Supreme Court in case of Sripati Singh v. State of Jharkhand, reported in (2022) 18 SCC 614 as follows:
"21. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. "Security" in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified time-frame and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to -7- NC: 2025:KHC-D:2816 CRL.RP No. 100185 of 2022 defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of the NI Act would flow.
22. When a cheque is issued and is treated as "security" towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as "security" cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceeding initiated under Section 138 of the NI Act. Therefore, there cannot be a hard-and-fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an "on demand promissory note" and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute.-8-
NC: 2025:KHC-D:2816 CRL.RP No. 100185 of 2022 When a cheque is issued even though as "security" the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation."
11. Even insofar as contention that complainant had charged exorbitant interest, same would not hold much water in view of fact that complainant had produced account statement of petitioner as Exs.P10. Therefore, said contention appears to be spacious and untenable.
12. It is also seen that while passing impugned judgment, trial Court verified compliance with legal requirements of due presentation, receipt of intimation, issuance of notice and filing of complaint within time period stipulated under Section 138 of NI Act. Admittedly, petitioner did not step into witness box to lead evidence to rebut presumption under Section 139 of NI Act. Though, Hon'ble Supreme Court in case of Rangappa v. Sri Mohan, reported in 2010 (11) SCC 441, has held such rebuttal need not be by -9- NC: 2025:KHC-D:2816 CRL.RP No. 100185 of 2022 accused stepping into witness box, but can also be based on material/evidence led by complainant himself.
13. However, contentions urged would not be sufficient to probablize defence as to rebut presumption. 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 CT:PA LIST NO.: 1 SL NO.: 15