Mr Keshav Das Vs Mr Kumbala Padhbhanabha

MR. KUMBALA PADHBHANABHA S/O LATE BATTAYA CHETTIYAR AGED ABOUT 58 YEARS R/AT “PRATHIKSHA” NEAR NAGA BANA, JEPPU MAJILA VALENCIA, KANKANADY MANGALURU-575 002.

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…RESPONDENT

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C (U/S 438 R/W 442 BNSS) PRAYING TO SET ASIDE JUDGMENT DATED 07.03.2026 PASSED IN CRIMINAL APPEAL NO.318/2025 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, DAKSHINA KANNADA, MANGALURU AND JUDGMENT DATED 04.06.2025 PASSED IN C.C.NO.132/2024 ON THE FILE OF J.M.F.C (V COURT) MANGALORE. ACQUIT THE PETITIONER OF OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

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NC: 2026:KHC:26867 CRL.RP No. 826 of 2026

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL ORDER

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This matter is listed for admission and I have heard learned counsel for the petitioner.

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The factual matrix of case of the complainant before the Trial Court is that both the complainant and accused were having acquaintance with each other through his relative named Adarsh. Hence, the accused in the year 2021 has requested financial assistance from the complainant. The accused between April 2021 to September, 2023 has borrowed a sum of Rs.10,00,000/- as hand loan on various dates and has promised to repay the amount within 30.10.2023. When the accused failed to repay the said amount for the repeated requests, accused issued the present cheque in question with a promise that the same will be honoured upon presentation. When the said Cheque was presented, the same was not honoured. Hence, legal notice was issued demanding to pay the amount. Inspite of it, the accused did not give any reply and

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HC-KAR

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did not comply with the demand. Therefore, complaint was filed and cognizance was taken and accused did not plead guilty.

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The accused examined himself as D.W.1 and the complainant examined himself as P.W.1 and got marked the document Exs.P1 to P5, including the cheques, legal notice and postal accompaniment. Though, the accused examined himself as D.W.1, but not produced any documentary evidence and only defence was taken that during Covid-2019 cheque was misplaced and also during oral evidence, he has stated that he has not issued the cheque to anybody else. During the course of cross-examination of P.W.1, the accused suggests that the complainant along with others has received the cheque from the complainant and the same was misused by them and this cross-examination is contrary to the oral evidence led by the accused. Having considered this version of the defence as well as the oral evidence, the Trial Court comes to the conclusion that the complainant has proved the case by proving the Cheque.

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The judgment of the Trial Court was challenged

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before the First Appellate Court and the First Appellate Court

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HC-KAR

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also having reassessed the material available on record considering the document Ex.P1 and also considering the fact that the evidence of the accused is silent whether only Ex.P1Cheque leaf has been misplaced or other cheques pertaining to the same series are misused and nothing is substantiated by the accused in his defence evidence or during the crossexamination of P.W.1 as to how Ex.P1-Cheque went to the custody of the complainant and even defence was not substantiated by reporting the evidence under Section 139 of Negotiable Instruments Act, confirmed the judgment of the Trial Court.

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Now, learned counsel appearing for the petitioner would vehemently contend that both the Trial Court as well as the First Appellate Court failed to consider the material on record, particularly defence which was taken that Cheque was misplaced. Having considered Ex.P1-Cheque, drawn the presumption and even leading of the defence evidence by examining D.W.1 was not considered. Hence it requires admission.

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HC-KAR

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Having heard learned counsel appearing for the petitioner and also considering the grounds urged in the revision petition as well as the reasoning given by the Trial Court in paragraph No.15, the Trial Court taken note of contra defence in the cross-examination of P.W.1 and also during the course of oral evidence, different defence was set up that cheque was misplaced during Covid-2019 and also signature not belongs to him, but not taken any steps to send the Cheque to the Handwriting Expert and no complaint was given for having lost the Cheque. During the course of crossexamination, suggestion was made that complainant along with others have received the cheque from the complainant and the same was misused and in one breath, it is stated that cheque was received by the complainant as well as others and the same was misused and in another breath, it is stated that it was misplaced during Covid-2019. The Trial Court and the First Appellate Court have considered all these factual aspects of the matter. When such being the case, I do not find any error on the part of the Trial Court and also the First Appellate Court in considering the material on record and the scope of revision is very limited and only if the judgment of conviction as well as

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NC: 2026:KHC:26867 CRL.RP No. 826 of 2026

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HC-KAR

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confirmation suffers from its legality and correctness, then only the Court can entertain the revisional jurisdiction and such circumstance is not warranted in the case on hand. Hence, I do not find any ground to exercise the revisional jurisdiction.

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