Sayed Mehaboob Vs Mr. Melwyn D Souza @ Melvin

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1 - NC: 2026:KHC:2063 CRL.RP No. 103 of 2016

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF JANUARY, 2026 BEFORE

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THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY CRIMINAL REVISION PETITION NO. 103 OF 2016

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BETWEEN:

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SAYED MEHABOOB MANAGING DIRECTOR MEHABOOB FRUIT AGENCY NO.10, JAISHREE MARKET SETHU RAO STREET CROSS BANGALORE-560 002 ALSO AT: PROPRIETOR OF FATHIMA FRUIT COMPANY A-12, APMC YARD SINGENA AGRAHARA HUSKUR VILLAGE HOSKUR ROAD CROSS BANGALORE - 560 100.

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&PETITIONER (BY SRI M. SHASHIDHARA, ADV.)

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AND:

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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MR. MELWYN D SOUZA @ MELVIN S/O SRI LAWRENCE D'SOUZA AGED ABOUT 38 YEARS ESSAR OIL LIMITED 11, KK MARG, MAHALAXMI MUMBAI - 540 003.

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&RESPONDENT

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(BY SRI AMAR CORREA, ADV.)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION PASSED BY THE HON'BLE LXII ADDL. CITY CIVIL, S.J., (CCH-63) AT BANGALORE DATED 11.12.2015 IN CRL.A.NO.1372/2014 BY CONFIRMING THE JUDGMENT OF TRIAL COURT AND JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 13.11.2014 IN C.C.NO.24180/2007 PASSED BY THE HON'BLE XVI ADDL.C.M.M., BANGALORE AND ACQUITTING THE PETITIONER.

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NC: 2026:KHC:2063 CRL.RP No. 103 of 2016

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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Accused is before this Court in this revision petition filed under Section 397 read with Section 401 of Cr.PC, with a prayer to set aside the judgment and order of conviction and sentence dated 13.11.2014 passed by the Court of XVI Addl. Chief Metropolitan Magistrate, Bengaluru City, in CC.No.24180/2007, which is confirmed in Crl.A.No.1372/2014 by the Court of LXII Addl. City Civil & Sessions Jude, Bengaluru, vide judgment and order dated 11.12.2015.

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Heard the learned Counsel for the parties.

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Respondent herein had initiated proceedings against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, in CC.No.24180/2007.

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It is the case of the respondent that the petitioner who is the Managing Director of M/s. Mehaboob Fruit Agency, was his acquaintence and he was supplying imported apples to the

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3 - NC: 2026:KHC:2063 CRL.RP No. 103 of 2016

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HC-KAR

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petitioner. At the request of the petitioner, a sum of Rs.2,50,000/- was lent by the respondent during the third week of March 2006. On 08.04.2006, the respondent-complainant had supplied one truck load of imported apples to the petitioner at Bengaluru, and towards the cost of consignment of apples, petitioner was due to pay a sum of Rs.4,93,750/-. Towards repayment of the amount due, two separate cheques for a sum of Rs.2,50,000/- and Rs.2,00,000/- was issued by the petitioner in favour of the respondent. Cheque in question bearing No.116902 dated 16.11.2006 drawn on Amanath Cooperative Bank Ltd., N.R.Road, Bengaluru, which was issued in favour of the respondent for a sum of Rs.2,50,000/- was dishonoured by the drawee bank on presentation for realization. Thereafter, a statutory notice was issued to the petitioner on behalf of the respondent. Inspite of service of statutory notice, the petitioner had failed to repay the amount under the cheque in question. It is under these circumstances, proceedings was initiated against the petitioner for the offence punishable under Section 138 of N.I.Act in CC.No.24180/2007 before the Trial Court.

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NC: 2026:KHC:2063 CRL.RP No. 103 of 2016

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HC-KAR

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In the said proceedings, the Trial Court had convicted the petitioner for the offence punishable under Section 138 of N.I.Act and sentenced him to pay fine of Rs.3,00,000/- and in default, to undergo simple imprisonment for a period of 90 days. The said judgment and order of conviction and sentence passed by the Trial Court has been confirmed by the Appellate Court in Crl.A.No.1372/2014 vide judgment and order dated 11.12.2015. Aggrieved by the same, petitioner is before this Court.

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Learned Counsel for the petitioner having reiterated the grounds urged in the petition, submits that the cheque in question was not issued to the respondent towards discharge of any legally recoverable debt. He submits that the cheque return memo has not at all been produced and marked in the present case, and therefore, the alleged date of cause of action is not forthcoming. The Trial Court as well as the Appellate Court have failed to appreciate the said aspect of the matter. He submits that the cheque in question was issued to a company known as 'Essar Oil Ltd.', in which respondent-complainant was an employee. The said cheque has been misused by him and

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5 - NC: 2026:KHC:2063 CRL.RP No. 103 of 2016

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HC-KAR

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the present proceedings has been initiated. He, accordingly prays to allow the petition.

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Per contra, learned Counsel for the respondent has argued in support of the impugned judgment and order of conviction and sentence, and submits that the presumption that arose against the petitioner has not been successfully rebutted by him. It is under these circumstances, the courts below have convicted and sentenced the petitioner. He, accordingly prays to dismiss the petition.

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According to the respondent-complainant, petitioner had borrowed a sum of Rs.2,50,000/- in cash and in addition to the same, petitioner was due to pay a sum of Rs.4,93,750/towards cost of supply of apples made by him in the month of April 2006. It has come on record that petitioner has repaid a sum of Rs.1,54,000/- to the respondent-complainant, and therefore, the transaction between the parties stands proved.

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According to the respondent, towards repayment of the balance amount, two cheques were issued for a sum of Rs.2,50,000/- and Rs.2,00,000/-. The cheque in question dated

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6 - NC: 2026:KHC:2063 CRL.RP No. 103 of 2016

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HC-KAR

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16.11.2006 was drawn on Amanath Co-operative Bank Ltd., for a sum of Rs.2,50,000/- in favour of the respondent. The said cheque was presented for realization on 10.05.2007. Ex.P-7 is the counterfoil which would go to show that the cheque in question was presented for realization on 10.05.2007. After the cheque was dishonoured, legal notices were issued on behalf of the complainant to the petitioner to two different addresses. Ex.P-8 is the copy of the legal notice dated 12.06.2007. Ex.P-5 is the postal acknowledgment which would go to show that the legal notice was delivered to the petitioner on 13.06.2007 in one address and Ex.P-10 is the reply of the postal authority which would go to show that legal notice was served on the other address of the petitioner on 18.06.2007. The cause of action for initiating the proceedings against the accused for the offence punishable under Section 138 of the N.I.Act arises in the event the amount covered under the cheque is not paid before expiry of 15 days from the date of service of statutory notice on the accused. In the case on hand, the legal notice to the petitioner was first served on 13.06.2007, and therefore, the cause of action arises for initiating proceedings against him for the offence punishable under Section 138 of the N.I.Act on

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7 - NC: 2026:KHC:2063 CRL.RP No. 103 of 2016

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HC-KAR

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29.06.2007. The complaint is filed on 20.07.2007 which is within the period of one month from the date of cause of action.

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The signature of the petitioner found in the cheque in question is not in dispute and it is also not in dispute that the cheque was drawn on the bank account of the petitioner maintained in Amanath Cooperative Bank Ltd. Therefore, the presumption as provided under Section 139 read with Section 118 of the N.I.Act arises as against the petitioner. Unless the petitioner successfully rebuts the said presumption by putting forward a probable defence, he is liable to be convicted for the offence punishable under Section 138 of N.I.Act.

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In the case of K.N.BEENA VS MUNIYAPPAN & ANOTHER -

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(2001)8 SCC 458 , the Hon'ble Supreme Court has observed that the defence put forward by the accused so as to successfully rebut the presumption that arises against him under Section 139 of N.I.Act, is required to be probable and a plausible defence is not sufficient to rebut the presumption.

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8 - NC: 2026:KHC:2063 CRL.RP No. 103 of 2016

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HC-KAR

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In the present case, petitioner has not placed on record any oral or documentary evidence to probablize the defence put forward by him. According to the petitioner, the cheques in question were issued in favour of Essar Oil Ltd., and the petitioner who was an employee in the said company has misused the said cheque. However, there is absolutely no material in support of such defence put forward by him. The Trial Court as well as the Appellate Court having appreciated the aforesaid aspects of the matter, have rightly convicted the petitioner for the offence punishable under Section 138 of N.I.Act. Even the sentence imposed on him by the courts below is just and proper. Under the circumstances, I do not find any good ground to interfere with the judgment and order of conviction and sentence passed by the courts below. The revision petition, therefore, lacks merit and is accordingly dismissed.

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SD/(S VISHWAJITH SHETTY) JUDGE

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KK

Sayed Mehaboob v. Mr. Melwyn D Souza @ Melvin

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Sayed Mehaboob v. Mr. Melwyn D Souza @ Melvin

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