Bhawaralal Kumawat Vs Gangadhara B N

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NC: 2026:KHC-D:764 CRL.RP No. 100481 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD DATED THIS THE 22^ND DAY OF JANUARY, 2026 BEFORE

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THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO. 100481 OF 2023

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(397(CR.PC)/438(BNSS))

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BETWEEN:

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BHAWARALAL KUMAWAT, S/O. RAMALALKUMAWAT, AGE. 66 YEARS, OCC. BUSINESS, R/O. NO.133/A, NEARBY KAIVARA GUDI, RAGHAVENDRA LAYOUT, KAMMANAGONDANAHALLI, JALAHALLI, WEST BENGALURU-560015.

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…PETITIONER

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(BY SRI. B. CHIDANANDA, ADVOCATE)

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AND:

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GANGADHARA B.N., S/O. LATE CHANDRASHEKARAPPA N.B., AGE. 73 YEARS, OCC. BUSINESS, R/O. NO.9, NEELUKUDURE VILLAGE, H. B. HALLI TQ., VIJAYANAGARA DIST-583212.

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…RESPONDENT

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Digitally signed byCHANDRASHEKARLAXMANKATTIMANI Location: HighCourt of Karnataka,Dharwad Bench

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(BY SMT. SONU SUHEL N., ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 AND 401 OF CR.P.C., PRAYING TO CALL FOR ENTIRE RECORDS IN THE ABOVE CASE AND TO SET -ASIDE THE JUDGMENT DATED 17.11.2023, MADE IN CRIMINAL APPEAL NO.5054/2022, PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE AT BALLARI (SITTING AT HOSAPETE) AND ALSO THE JUDGMENT DATED 30.07.2022, MADE IN CC NO.377/2021, PASSED BY THE CIVIL JUDGE AND JMFC, HAGARIBOMMANAHALLI, FOR THE OFFENCES PUNISHABLE U/S 138 OF N.I. ACT AND FURTHER TO DISMISS THE COMPLAINT OF THE RESPONDENT HEREIN, IN THE INTEREST OF JUSTICE.

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

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NC: 2026:KHC-D:764 CRL.RP No. 100481 of 2023

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HC-KAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

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Heard Sri B.Chidananda, learned counsel for petitioner and

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Smt.Sonu Suhel N., learned counsel for respondent.

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Accused is the revision petitioner challenging conviction judgment passed in C.C.No.377/2021 confirmed in Criminal Appeal No.5054/2022 holding him guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I. Act’, for short).

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Facts in the nutshell which are utmost necessary for disposal of the present petition are as under:

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3.1 A criminal complaint came to be filed under Section 200 Cr.P.C. alleging the commission of the offence punishable under Section 138 of the N.I. Act.

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3.2 Learned trial Magistrate after completing necessary formalities, registered the case in C.C.No.377/2021 and secured the presence of the accused recorded the plea since accused is not guilty, the trial was held. In order to discharge the initial burden, complainant got examined as PW1 and placed on record

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NC: 2026:KHC-D:764 CRL.RP No. 100481 of 2023

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six documents which were exhibited and marked as Exhibits P1

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to P6 comprising of original dishonoured cheque, bank endorsement, copy of the legal notice, postal receipt and acknowledgment.

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3.3 As against the material evidence placed on record, accused got examined himself as DW1 and placed on record account statement maintained by him in the State Bank of India as Exhibit D1.

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3.4 Thereafter, learned trial Judge heard the arguments of the parties and convicted the accused by imposing the fine amount of ₹11,00,000/- as against the cheque amount of ₹9,80,000/- and out of the same, sum of ₹10,75,000/- was ordered to be paid as compensation to the complainant.

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Being aggrieved by the same, accused filed an appeal before the District Court in Criminal Appeal No.5054/2022.

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Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and dismissed the appeal filed by the accused and confirmed the judgment of conviction and order of sentence.

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HC-KAR

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Being further aggrieved by the same, accused is

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before this Court in this revision on following grounds:

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“That the Judgments passed by the Courts below are illegal, arbitrary, contrary to the facts of the case, evidence on record and to law. The same are liable to be set-aside in limine.

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That the Judgments & Sentence passed by the courts below are perverse, capricious and not tenable in law.

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 It is submitted that, burden lies on the complainant/Respondent to prove source of income. The Respondent/complainant has not produced any bank A/c details to support his the claim. As per facts of the case, complainant/Respondent could not prove the source of income from which alleged loan was paid to the Petitioner/accused. In the present case, the Respondent/complainant in his cross examination has admitted that, his annual income for 2021 is Rs.25 lakhs. The said amount was got by selling promogranate (dalimbe). No documents are produced to show that the said amount was derived from sale of Promogrante. There is no averment with regard to said sale in the complaint or in chief examination. Therefore it is very much clear that the Respondent/Complainant has no source of income to lend the Petitioner/accused such a huge amount of Rs.9,80,000/- by cash.

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Further he stated that, he is not an income tax assesse. Hence, both the courts have apparently failed to appreciate this aspect of the matter and wrongly held that, presumption is in favour of the Respondent/complainant. The courts below have concurrently erred in this regard and hence the judgments of the courts below are perverse, erroneous and call for interference of this Hon'ble Court, in the interest of justice.

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

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

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It is submitted that, the Respondent/complainant has utterly failed to either produce any documents or to lead any convincing evidence to show that, financially he was sound to lend huge sum of Rs.9,80,000/- by cash. The Petitioner/accused has successfully rebutted the presumption formed in favour of the Respondent/complainant about the existence of legally enforceable debt. The impugned judgments being perverse & erroneous, deserves interference of this Hon'ble Court.

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It is submitted that, the courts below have ignored the vital facts regarding the contradictory stand taken by the Respondent. In fact the Respondent has alleged in the notice that the amount of Rs.9,80,000/- was paid to the Petitioner by way of cash, which is quite inconsistent and contradictory

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to the facts which the Respondent has taken the plea in his complaint and the evidence led by the complainant and the contents of his examination, in the cross examination of the respondent, the respondent has admitted that he has received the

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amount from the appellant and further the respondent is also agreed that there is no other witness present at the time of said transaction, more over the respondent is also failed to produce the documentary proof of the said transaction. Hence, judgments of both the courts are not tenable in law and they have failed to appreciate the evidence on record in proper perspective manner. Under the said circumstances, the judgments of both the courts are liable to be setaside on this ground also.

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

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

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It submitted that, the courts below have failed to appreciate that, the Petitioner has repaid the entire loan amount of Rs.9,80,000/- to the respondent in the year 2016. The said fact has been admitted by the Respondent/complainant in the examination. Further the courts below have failed to appreciate that, the respondent has failed to produce the documentary evidence stating that, the respondent given the same amount of loan of Rs.9,80,000/- in the year 2021.

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It is submitted that, the courts below have failed to consider the fact that the burden of proof in this case is upon the Respondent to establish his case beyond reasonable doubt, which the respondent has miserably failed, besides the Respondent has not placed any document to prove that the cheque dated 18-08-2021 for a sum of Rs.9,80,000/- in favour of the Petitioner in discharge of a legally enforceable debt and as such the impugned

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NC: 2026:KHC-D:764 CRL.RP No. 100481 of 2023

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judgment are liable to be set-aside on this ground also.

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Both the courts have failed to consider that, has rebutted the Petitioner/accused presumption available in favour of the Respondent U/Sec. 139 of N.I. Act.

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It is submitted that, both the courts have committed a serious error in convicting the Petitioner/accused by mis-interpreting Sec. 118 & 139 of the N.I.Act.

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That the Judgment of conviction passed by the courts below are contrary to law, weight of evidence, arbitrary and probabilities of case. Hence, liable to be set aside in limine.

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Both the courts below have failed to consider that there is no privity of contract between the Petitioner and Respondent and Respondent has cheated the Petitioner.

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The courts have failed to consider the averments made by the Respondent/Complainant in the complaint that he has advanced total sum of Rs.9,80,000/- to the Petitioner.

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 It is submitted that, both the courts have failed to consider that at the time of borrowing Rs.9,80,000/from the Respondent by the Petitioner ie. on 08-02-2016, the Petitioner had issued the cheques including the cheque in question as Security, the said borrowings were repaid by the Petitioner, but the Respondent did not return the cheques to the Petitioner and he

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has misused the said cheque by filing the present compliant. Hence, the judgments of the courts. below are bad and not tenable in law.

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It is submitted that, both the courts have failed to consider that the Petitioner though has repaid the borrowed amount of Rs.9,80,000/to the Respondent, which was taken on 08-02-2016, but the Respondent has failed to return the instruments like cheques, including the cheque in question, given as security.

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The courts below ought to have disbelieved the evidence of the Respondent and ought to have held that, the cheque bearing No:727386, dated 18-08-2021, drawn on the S.B.I., Bangalore branch is not issued by the Petitioner in favour of the of the Respondent towards discharge of any debts, much less borrowings dated 15-07-2021, but the same was given as security while obtaining the borrowings on 08-02-2016. The said judgments are illegal and not sustainable in law. It is submitted that, both the courts have utterly failed to understand and appreciate that, mere denying the suggestion of lending money in 2021 by the Respondent would prove that the Respondent has got financial capacity to lend such a huge cash would not amount to proving the financial capacity. Hence, both the judgments passed by the courts below are erroneous, perverse and not tenable in law.

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NC: 2026:KHC-D:764 CRL.RP No. 100481 of 2023

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Both the courts have failed to understand that, the petitioner was not in station when the alleged amount was paid on 15-02-2021 as he was admitted in the Hospital at Rajasthan.

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Both the courts have failed to notice that, Petitioner has proved his defence by Preponderance of probabilities.

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Both the courts are not justified in convicting the Petitioner, in spite of not producing any document to prove the huge amount of cash has been paid without any security and without any documentary proof to that effect.

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That the courts below have acted contrary to the law laid down by the Hon'ble High Court of Karnataka and the Hon'ble Supreme Court of India.”

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Sri B.Chidananda, learned counsel for the revision

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petitioner reiterating the grounds urged in the revision petition, vehemently contented that the entire case of the respondent is incorrect and both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused resulting in miscarriage of justice.

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He would further contend that the document marked

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at Exhibit D1/statement of account is not properly appreciated by the learned trial Judge and there was a clear admission in the

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cross-examination of PW1 that the accused filled up the cheque in hand and then issued the same, but in the next breath, he has stated that the contents of the cheque is typed and thereafter issued to him, which shows that complainant is not sure about the issuance of the cheque by the accused.

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He would further contend that a blank cheque issued

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by accused for submitting has been misused by the respondent and thus sought for admitting the revision petition.

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Per contra , Smt.Sonu Suhel N., learned counsel for respondent supports the impugned orders.

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Having heard the arguments of both sides, this Court perused the material on record meticulously.

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On such perusal of the material on record, issuance of the cheque signature found therein is not in dispute. If it is the case of the revision petitioner that the blank cheque has been misused, there should have been a positive action on the part of the accused in issuing a legal notice or filing criminal complaint.

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It is pertinent to note that there was no reply to the legal notice though it is duly served. At least after engaging the services of an advocate before the trial Court, a complaint should have been filed by the respondent about the alleged misuse of the blank cheque. No such attempt is made by the accused.

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Further, the oral evidence placed on record and the statement of account vide Exhibit D1 of the accused did not rebut the presumption available to the complainant under Section 139 of the N.I. Act.

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Taking note of these aspects of the matter and following the dictum of the Hon'ble Apex Court in the case of Rajesh Jain v. Ajay Singh reported in (2023) 10 SCC 148 , the order of conviction needs to be confirmed.

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However, imposing fine of ₹25,000/- towards the defraying the expenses of the State needs to be set aside, as there is no State machinery is involved.

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Accordingly, following order is passed:

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ORDER

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i. Criminal revision petition is allowed in part.

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NC: 2026:KHC-D:764 CRL.RP No. 100481 of 2023

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ii. While maintaining the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, imposition of the fine of ₹11,00,000/is reduced to ₹10,75,000/and entire amount of ₹10,75,000/is ordered to be paid as compensation to the complainant.

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iii. Imposition of fine amount of ₹25,000/- is hereby set aside.

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iv. Office is directed to return the trial Court records with copy of this order for issue of modified conviction warrant.

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Sd/(V.SRISHANANDA) JUDGE

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CLK CT:CMU LIST NO.: 2 SL NO.: 24

Bhawaralal Kumawat v. Gangadhara B N

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Bhawaralal Kumawat v. Gangadhara B N

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