Sri Zakir Pasha Vs Sri Siddesh K B — Cheque Dishonour | Karnataka HC (2025)

Sri Zakir Pasha Vs Sri Siddesh K B — Cheque Dishonour | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the demand notice (Ex.P.3) complied with Section 138 NI Act despite omitting the date of receipt of the intimation of dishonour, i.e., whether the complaint was filed without proper compliance with the statutory timeline. +2 more

Court's answer

Non-mentioning of the date of receipt of intimation of dishonour in the demand notice is not fatal: reckoning from the bank's endorsement (Ex.P.2), the demand notice dated 05.08.2017 was within the period stipulated under Section 138 NI Act, and the contention has no substance.

Ratio / Principle

PW1's admission related only to talks about carrying on a sheep-rearing business, not to any such business actually being entered into; hence the subsequent denial of the business does not indicate inconsistency rendering PW1's deposition unreliable.

Key takeaways

The accused did not examine any independent witnesses to establish the sheep-rearing business or the issuance of the cheque to the complainant to meet daily expenses, weakening the blank-cheque/misuse defence.ratio¶13
Non-CTR cheques were legal tender until their discontinuation in 2018; in the absence of establishing the exact date of issuance of Ex.P.1, the contention that a stale cheque issued in 2012 was misused fails.ratio¶13
Acceptance of the signature on Ex.P.1 and its issuance to the complainant attracts the statutory presumption in favour of the complainant, which cannot be upset by mere denial of suggestions in cross-examination.

Detailed headnote1 paragraphs

Criminal revision under Sections 397/401 Cr.P.C. by the accused against concurrent convictions under Section 138 NI Act (cheque no.871129 dated 29.05.2017 for Rs.3,50,000/- drawn on Canara Bank, Mysuru Branch) dismissed. Held: (i) omission in demand notice Ex.P.3 of the date of receipt of the dishonour intimation is not fatal — the notice dated 05.08.2017 fell within the statutory period reckoned from the bank's endorsement Ex.P.2; (ii) PW1 admitted only talks, not commencement, of a sheep-rearing business, and the accused examined no independent witness on the blank-cheque/misuse defence; (iii) non-CTR cheques were legal tender until discontinued in 2018, and the exact date of issuance of Ex.P.1 not being established, acceptance of the signature and its issuance to the complainant attracted the statutory presumption, not rebuttable by bare denials in cross-examination; (iv) the contemporaneous sale of immovable property corroborated the complainant's financial capacity (agriculturist earning Rs.15,000/- to 20,000 per month) and non-production of his bank passbook warranted no adverse inference; the concurrent findings were neither perverse nor vitiated by statutory infraction so as to attract revisional jurisdiction.

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27^TH DAY OF NOVEMBER, 2025 BEFORE

THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 313 OF 2023

BETWEEN:

SRI ZAKIR PASHA S/O LATE BABA JAN, AGED ABOUT 60 YEARS, R/AT NO 803, 2^ND MAIN, REHAMANAIAH STREET, CHAMARAJA MOHALLA, MYSURU - 571 313.

…PETITIONER

(BY SRI N. CHANDRASHEKAR, ADVOCATE FOR SRI BHARGAV G., ADVOCATE)

AND:

SRI SIDDESH K B., S/O LATE BOMMEGOWDA, AGED ABOUT 63 YEARS, R/AT AGRAHARA LAYOUT, BANAVARA TOWN, HOBLI, ARASIKERE TALUK, HASSAN DISTRICT - 573 112.

Digitally signed by ANUSHA V Location: High Court of Karnataka

…RESPONDENT

(BY SRI GIRISH M.K., ADVOCATE)

THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGEMENT AND CONVICTION, PASSED BY THE COURTS BELOW VIDE C.C.NO.2416/2017 DATED 10.01.2022 BY THE ADDL. CIVIL JUDGE AND JMFC, ARASIKERE AND CRL.A.NO.41/2022 DATED 07.12.2022 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, HASSAN.

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

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

ORAL ORDER

Though, this matter is listed for orders, with consent of learned counsel on both side, it has taken up for final disposal.

Challenging judgment dated 07.12.2022 passed by II Addl. District & Sessions Judge, Hassan, in Crl.A.no.41/2022 confirming judgment dated 10.01.2022 passed by Addl. Civil Judge & JMFC., Arasikere, in C.C.no.2416/2017, this revision petition is filed.

Sri N Chandrashekar, learned counsel appearing for Sri G Bhargav, learned counsel for petitioner (accused) submitted, respondent (complainant) filed a private complaint under Section 200 of Cr.P.C. alleging that accused and complainant known to each other and on 28.05.2017 accused had borrowed Rs.3,50,000/- from complainant for business and towards repayment issued cheque no.871129 dated 29.05.2017 for Rs.3,50,000/- drawn on Canara Bank, Mysuru Branch, which when presented for collection returned dishonoured with endorsement 'funds insufficient' and

thereafter even when demand notice got issued by complainant

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returned with shara ' return to sender' and accused failed to make repayment, offence punishable under Section 138 of NI Act was committed.

On appearance accused denied charges and sought trial. Thereafter, trial Court recorded evidence of complainant and got marked Exs.P.1 to P26. On appraisal of incriminating material, which accused denied, his statement under Section 313 of Cr.P.C. was recorded. It was submitted, accused examined himself as DW1 and got marked Exs.D1 to D4. It was submitted petitioner had set up substantial defence not only in cross-examination of complainant - PW1, but also in his rebuttal evidence, but trial Court without proper appreciation convicted petitioner. Even when same was challenged, first appellate Court without proper re-appreciation confirmed same. It was submitted both judgments suffer from perversity and call for interference.

It was firstly submitted that accused and complainant had agreed to enter into sheep-rearing business. In order to meet daily expenses and in order to avoid traveling to sheep farm frequently, accused had issued signed blank

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cheques and handed over to complainant in year 2012. Same was misused. It was submitted fact that cheque was issued in year 2012 and not in 2017 was evident from fact that Ex.P.1 - cheque was non-CTR cheque. And as per direction of RBI, such cheques were taken out of currency in year 2013. Apart from above, it was submitted accused had also disputed financial capacity of complainant to lend such money. It was submitted in cross-examination of PW1, accused had elicited that complainant had sold immovable property in order to meet household expenses as well as for daughter's education. It was admitted there was no money kept in Fixed deposit in name of daughter, which would establish that complainant was not sound enough to lend Rs.3,50,000/- to accused. It was further submitted omission of complainant to mention date of receipt of endorsement of dishonour in Ex.P.3-demand notice would also indicate that complaint was filed without proper compliance. On above grounds submitted, impugned judgments suffer from perversity and call for interference.

On other hand, Sri Girish MK, learned counsel for respondent opposed revision petition. It was submitted that

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both Courts considered entire material on record in proper perspective and arrived at well reasoned finding and same could not be stated to be suffering from perversity as would call for interference.

Insofar as first contention that there was agreement between complainant and accused to run sheep-rearing business and to meet daily expenses, blank signed cheque was given by accused to complainant. It was submitted, during cross-examination, PW1 had merely stated that there were talks about carrying on sheep-rearing business between accused and complainant. It was clarified in further deposition by PW1 that there was no intention of carrying-on such business and same had not progressed.

Insofar as dispute regarding financial capacity, it was submitted, indeed complainant had sold immovable property to meet his household expenses as well as for daughter's education. But, same would not by itself establish that he had no financial capacity. On other hand, same would corroborate financial capacity.

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Insofar as time line indicated in Section 138 of NI Act, it was submitted Ex.P.2 was dated 26.07.2017, even if said date is taken as date of receipt of intimation of dishonour, Ex.P.3 - demand notice issued on 05.08.2017, would be well within period stipulated and there would be no transgression of statutory provision. Mere omission to disclose date of service of demand notice would not be fatal and submitted that there was no merit in revision and sought for dismissal.

Heard learned counsel, perused impugned judgments as well as trial Court records.

From above, it is seen that this revision is by accused challenging concurrent findings convicting accused for offence punishable under Section 138 of NI Act. Challenge is on ground of perversity as well as infraction of statutory provision. Insofar as first contention that non-mentioning of date of receipt of intimation of dishonour in demand notice would be fatal, it is seen that Ex.P.2 - endorsement issued to complainant by bank is dated 26.07.2018 marked as Ex.P.2. As per Section 138 of NI Act, complainant would require to give demand notice within 15 days from date of receipt of

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intimation. Thus, notice dated 05.08.2017 would be within time and there is no substance in contention.

Insofar as contention about finding being perverse, reference to admission by PW.1 is about talks for sheep-rearing business between accused and complainant. There is no admission that such business was in fact entered into. Thus, denial of said business on subsequent date of deposition would not indicate inconsistency rendering deposition of PW1 unreliable.

On other hand, accused did not examine any independent witnesses to establish sheep-rearing business as well as issuance of cheque by accused to complainant to meet daily expenses. Insofar as claim that stale cheque was issued in year 2012 was misused for filing instant proceedings. It is seen that non-CTR cheques were legal tender until their discontinuation in 2018. In absence of establishing exact date of issuance of Ex.P.1, acceptance of signature and it's issuance to complainant would inure statutory presumption in favour of complainant and same cannot be upset by denial of suggestions in cross-examination.

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Insofar as financial capacity merely on ground that complainant had sold immovable property, in order to meet household expenses and daughter's education etc., would also not establish or probablize defence that complainant did not have financial capacity. Sale being contemporary, would itself substantiate financial capacity. Merely on ground of failure to produce bank pass book would not by itself lead to inference that such disclosure would run counter to complainant's case and for drawing adverse inference. Complainant had stated that he was an agriculturist and had income of Rs.15,000/- to 20,000/per month. Besides, it is seen that both Courts on examination of entire material on record, arrived at reasoned findings. It is not established that findings suffer from perversity for infraction of statutory provision as would attract revisional jurisdiction.

Revision petition is without merit and stands dismissed.

Sd/(RAVI V HOSMANI) JUDGE

Psg* List No.: 1 Sl No.: 5