Karnataka High Court
Khaja Khan Alias Crackers Khaja Khan S/O ... vs T Mustafa S/O T Abdul Khayum on 20 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2025:KHC-D:3524
CRL.RP No. 100246 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100246 OF 2023
[397(CR.PC)/438(BNSS)]
BETWEEN:
KHAJA KHAN @ CRACKERS KHAJA KHAN,
S/O. LATE CHAND KHAN,
AGE: 45 YEARS,
R/O. DALWALA MOSQUE,
2ND CROSS, ANJUMAN STREET,
BALLARI-583101.
... PETITIONER
(BY SRI B.S.SANGATI, ADVOCATE)
AND:
T. MUSTAFA S/O T.ABDUL KHAYUM,
AGE: 44 YEARS,
R/O. BANDIHATTI ROAD,
Digitally signed
NEAR GHOUSIYA MOSQUE,
KHALID NAGAR,
by
MALLIKARJUN
MALLIKARJUN RUDRAYYA
RUDRAYYA KALMATH
KALMATH Date:
2025.02.24
14:26:58
+0530
BALLARI-5838101.
... RESPONDENT
(BY SRI MOHAMMAD ABRAR S., ADVOCATE FOR
SRI SABEEL AHMED, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. SEEKING TO
CALL FOR RECORDS AND SET ASIDE THE ORDER DATED 28.04.2023
IN CRIMINAL APPEAL NO. 12/2023 PASSED BY THE COURT OF IV
ADDL. DISTRICT AND SESSIONS JUDGE (EXCLUSIVE DEDICATED
COMMERCIAL COURT) AT BALLARI, AND THE JUDGMENT PASSED IN
C.C.NO. 284/2021 DATED 23.01.2023 BY PRL. CIVIL JUDGE AND
J.M.F.C., BALLARI AND FURTHER PETITIONER BE ACQUITTED OF THE
OFFENCE UNDER SECTION 138 OF NI ACT.
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NC: 2025:KHC-D:3524
CRL.RP No. 100246 of 2023
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) Challenging order dated 28.04.2023 passed by IV Addl. District and Sessions Judge, (Exclusive Dedicated Commercial Court), Ballary ('Appellate Court' for short) in Crl.Appeal no.12/2023 and judgment/order dated 23.01.2023 passed by Principal Civil Judge and JMFC, Ballary ('trial Court' for short) in C.C.no.284/2021, this revision petition is filed.
2. Sri B.S.Sangati, learned counsel for petitioner submitted that respondent/complainant had filed a private complaint under Section 200 of Code of Criminal Procedure, 1973 ('CrPC' for short) stating that complainant was in scrap business while accused was in business of selling crackers. That in month of August, 2020 accused had approached complainant for financial assistance for developing his business and that complainant by borrowing amount from his friend C.R.Farooq had paid Rs.10 Lakhs to accused on 14.08.2020 with condition for repayment with interest within two months. Thereafter, accused issued two cheques for Rs.5 Lakhs each drawn on -3- NC: 2025:KHC-D:3524 CRL.RP No. 100246 of 2023 SUCO Bank, Ballary bearing nos.263233 and 263234 dated 27.09.2020 and 26.09.2020 respectively. When cheque no.263233 was presented for collection on 09.11.2020 it returned dishonoured with endorsement "Insufficient Funds". Even other cheque presented for collection on 25.11.2020 also returned dishonoured on ground of insufficient funds. Therefore, legal notice was got issued on 04.12.2020. Though same was served on accused on 08.12.2020, he did not reply nor repaid amount within stipulated period. Thus, petitioner/accused committed offence punishable under Section 138 of Negotiable Instruments Act, 1881 ('NI Act' for short).
3. After issuance of summons and appearance, accused denied charges and sought to be tried. Complainant examined himself as PW-1 and got marked Exs.P1 to P7. Thereafter, accused was appraised gist of incriminating material against him and his statement under Section 313 of CrPC recorded. He denied same as false and did not lead any rebuttal evidence.
4. On consideration, trial Court proceeded to convict accused for offence punishable under Section 138 of NI Act and -4- NC: 2025:KHC-D:3524 CRL.RP No. 100246 of 2023 passed order of sentence for payment of fine of amount of Rs.15 Lakhs and in default, ordered to undergo simple imprisonment for a period of 6 months.
5. Aggrieved, accused filed Crl.Appeal no.12/2023. In impugned order, same was dismissed without proper consideration. Aggrieved, accused was in revision.
6. It was submitted, both Courts concurrently failed to appreciate main contention that complainant did not have financial capacity to advance huge amount of loan of Rs.10 Lakhs and that no records were produced to establish same. It was submitted, only documents produced were Exs.P1 and P2 - Cheques, Exs.P3 and P4 - endorsements and Exs.P5 to P7 - legal notice, postal receipts and acknowledgements. In absence of clear material or record as would effectively implicate accused having borrowed loan amount, it was not appropriate to have convicted accused. Relying upon decision of Hon'ble Supreme Court in case of John K. Abraham v. Simon C. Abraham and another reported in (2014) 2 SCC 236 and decisions of this Court in case of Yeshwanth Kumar v. Shanth Kumar N reported in 2020 (1) KCCR 505, Sri -5- NC: 2025:KHC-D:3524 CRL.RP No. 100246 of 2023 Appayya v. State of Karnataka reported in 2020 (1) KCCR 513, Charles Harry v. Praveen Jain reported in 2024 (1) KCCr 545, K.Govinda Nayak v. Janardhan Naik reported in 2024 (3) KCCR 2584 and in S.P.Rajkumar v.
M.J.Prabhakar reported in 2024 (1) KCCR 166, it was submitted, Appellate Court had committed various infirmities in establishing legally recoverable debt and therefore, sought for allowing of revision petition.
7. On other hand, Sri Mohammad Abrar S., Advocate appearing for Sri Sabeel Ahmed, learned counsel for respondent/complainant sought to justify impugned judgments. It was submitted, there was no dispute about issuance of cheques. Merely denying liability without any more would not be sufficient to rebut presumption under Section 139 of NI Act. Therefore, relying upon ratio of decision in Rohitbhai Jivanlal Patel v. State of Gujarat & Another reported in (2019) 18 SCC 106 regarding proof necessary for rebuttal of presumption, trial Court had rightly convicted petitioner. It was submitted, same was in accordance with law and as such, rightly confirmed by Appellate Court. It was further submitted, scope for interference against concurrent findings in revision -6- NC: 2025:KHC-D:3524 CRL.RP No. 100246 of 2023 petition was extremely limited and findings recorded, being findings of fact cannot be interfered with. On said grounds, sought dismissal of revision petition.
8. Heard learned counsel and perused records.
9. From above, only point that arises for consideration is:
"Whether petitioner/accused establishes that impugned judgments/orders passed by trial Court and Appellate Court suffer from perversity and call for interference?"
10. This is a revision petition under Section 397 read with Section 401 of CrPC. Hon'ble Supreme Court in case of Amit Kapoor v. Ramesh Chander & Another reported in (2012) 9 SCC 460 has clarified contours of revisional jurisdiction against concurrent findings as follows:
"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 place in the class of cases resulting in a perverse finding. Basically, -7- NC: 2025:KHC-D:3524 CRL.RP No. 100246 of 2023 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."
11. Though substantial contention disputing financial capacity of complainant to lend huge amount of Rs.10 Lakhs as alleged in complaint is raised, while passing impugned judgment, trial Court has sifted through oral and documentary evidence for assessing whether defence set up was probabilized. Complainant examined himself as PW-1 and got marked cheques as Exs.P1 and P2, endorsements as Exs.P3 and P4 and notice/postal acknowledgements as Exs.P5 to P7.
12. It observed there was admission about signature on Exs.P1 and P2 in cross-examination of PW-1. It also observed except making suggestions about complainant not having financial capacity to lend huge amount, there was no material produced to dislodge presumption under Section 139 of NI Act. Appellate Court on re-appreciation concurred with findings.
13. Perusal of judgments would indicate, only admission elicited was lack of knowledge of bank from which his friend C.R.Farooq had withdrawn amount to lend to him, which by -8- NC: 2025:KHC-D:3524 CRL.RP No. 100246 of 2023 itself would not be sufficient to rebut presumption. It is also seen Appellate Court took note of fact that petitioner failed to reply to legal notice despite receipt. Thus, contention urged by petitioner herein has been duly considered by both Courts. In view of fact that petitioner had failed to rebut presumption, extension of presumption under Section 139 of NI Act in favour of complainant would be justified. Hon'ble Supreme Court in case of Kishan Rao v. Shekar Gouda reported in (2018) 8 SCC 165 has held bare denial would not be sufficient to upset presumption. Thus, findings of both Courts are in accordance with law and cannot be termed to be suffering from perversity. Point for consideration is therefore answered in negative. Consequently, revision petition is dismissed.
SD/-
(RAVI V.HOSMANI) JUDGE RH,CLK CT:PA LIST NO.: 1 SL NO.: 25