Sri Rafeeq Vs Sri Amarnath M H

THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C PRAYING TO SET ASIDE IMPUGNED JUDGMENT DATED 10.11.2023 IN CRIMINAL APPEAL NO.85/2023, IN THE COURT OF THE HONBLE PRL. DISTRICT AND SESSIONS JUDGE AT CHIKKAMAGALURU AND JUDGMENT DATED 19.04.2023 IN C.C.NO.456 OF 2021, IN THE COURT OF THE LEARNED SENIOR CIVIL JUDGE AND JMFC AT MUDIGERE.

¶19

2 -

¶20

NC: 2025:KHC:49088 CRL.RP No. 133 of 2024

¶21

HC-KAR

¶22

THIS PETITION, COMING ON FOR ADMISSION , THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶23

CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

¶24

ORAL ORDER

¶25

Challenging judgment dated 10.11.2023 passed by Pr. District and Sessions Judge, Chikkamagaluru, in Crl.A.no.85/2023 confirming judgment dated 19.04.2023 passed by Senior Civil Judge & JMFC, Mudigere, in CC no.456/2021, this revision petition is filed.

¶26

Sri HU Vachan, learned counsel for petitioner submitted that this revision petition is against concurrent findings convicting petitioner (accused) for offence punishable under Section 138 of Negotiable Instruments Act, 1881 ('NI Act' for short).

¶27

It was submitted, respondent (complainant) has filed private complaint under Section 200 of Code of Criminal Procedure, 1978 ( 'CrPC' for short) stating that accused was known to him and on 01.12.2019, obtained financial assistance for tune of Rs.2,50,000/- agreeing to repay same on 05.03.2020 and on demand, issued cheque bearing no.602095

¶28

3 - NC: 2025:KHC:49088 CRL.RP No. 133 of 2024

¶29

HC-KAR

¶30

dated 05.03.2020, which when presented on 06.03.2020, returned with endorsement 'insufficient funds' and thereafter, failed to either repay amount or reply to demand notice dated 16.03.2020 got issued by complainant served on him on 24.03.2020, thereby committed offence punishable under Section 138 of NI Act.

¶31

On appearance, accused denied charges and sought trial. Thereafter, complainant examined himself as PW.1 and got marked Exhibits P1 to P5. On accused being appraised of incriminating material, which he denied false, his statement under Section 313 of CrPC was recorded. Therefore, accused examined himself as DW.1 but did not get marked any documents. It was submitted, though accused raised substantial defence and established same, without proper appreciation, trial Court convicted him. It was submitted, even appeal filed thereagainst was dismissed without proper reappreciation, leading to this revision petition.

¶32

It was firstly submitted, accused had disputed relationship of creditor and debtor between accused and complainant. It was contended, cheque in question was issued to one Prasanna from whom accused had borrowed loan and

¶33

4 -

¶34

NC: 2025:KHC:49088 CRL.RP No. 133 of 2024

¶35

HC-KAR

¶36

thereafter, repaid same. But at that time, cheque was not returned. Same was misused by complainant herein. It was submitted, fact that as per complainant, cheque was issued on 05.03.2020 and very next day presented for payment would itself probabilize his version. It was also submitted, private complaint filed was beyond period stipulated under Section 138 of NI Act from date of service of notice by complainant and as such, complaint was untenable. On above grounds, sought interference.

¶37

On other hand, Sri MS Raghavendra Prasad, learned counsel for respondent opposed revision petition. It was submitted, both Courts concurrently arrived at well reasoned findings convicting accused by referring to material on record. Said findings did not suffer from perversity and sought for dismissal of petition.

¶38

Heard learned counsel and perused impugned judgment and record.

¶39

From above, it is seen that revision petition is by accused challenging concurrent judgments convicting him for offence punishable under Section 138 of NI Act. Challenge is

¶40

5 -

¶41

NC: 2025:KHC:49088 CRL.RP No. 133 of 2024

¶42

HC-KAR

¶43

both on ground of infraction of statutory provisions as well as perversity.

¶44

Insofar as first contention that complaint was filed beyond period mentioned in Section 138 of NI Act, as noted by trial Court, private complaint was filed on 06.07.2020 and as per Ex.P5-Postal acknowledgment, Ex.P3-demand notice dated 16.03.2020 was served on him on 24.03.2020.. Though same is beyond period of 30 days provided in Section 138(b) of NI Act, it is seen that said period would fall during prevalence of COVID-19 pandemic and as per order dated 10.01.2022 passed by Hon'ble Supreme Court in Suo-moto WP(Civil) no.3/2020 for purpose of limitation, period from 15.03.2020 to 28.02.2022 is to be excluded. If so, filing of private complaint on 06.07.2020 would be within time. Therefore, contention about infraction with statutory provision would not hold.

¶45

Insofar as perversity about cheque issued to one Prasanna having been misused by complainant, admittedly, Ex.P1-cheque stands in name of complainant. Very contention that cheque was issued as security for loan taken by Prasanna would admit accused's signature on it. As per decision of Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar

¶46

6 - NC: 2025:KHC:49088 CRL.RP No. 133 of 2024

¶47

HC-KAR

¶48

reported in (2019) 4 SCC 197 , admission of signature and cheque in name of complainant would be sufficient to attract presumption under Section 139 of NI Act. Though accused has cross-examined PW.1, there is no admission elicited about writing on cheque other than signature was by complainant and without consent. Consequently, defence that cheque was issued to some other person and misused by complainant cannot be stated to have been probabilized by mere suggestions in crossexaminations, which are denied.

¶49

Even contention about failure of complainant to produce any material other than cheque to substantiate lending of money, in view of ratio laid down by Hon'ble Supreme Court in Bir Singh 's case (supra), admission of signature on cheque as well as issuance would be sufficient. Thus, no ground is made out to interfere.

¶50

Revision petition is dismissed .

¶51

Sd/(RAVI V HOSMANI) JUDGE

¶52

AV

¶53

List No.: 1 Sl No.: 39

Sri Rafeeq v. Sri Amarnath M H

Case brief

What is this about?

What did the court decide?

Sri Rafeeq v. Sri Amarnath M H

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Krishna Shetty Vs Avin Enterprises

Kodandaramaiah Vs State by Hiriyur Rural Ps

Sri P Girish Vs D R Sathish

State of Karnataka Vs H N Prabhakar

Manoj Kumar Jain Vs R Kiran Kumar

Sri Shabbir Vs Sri a B Ravindranath