Karnataka High Court
Sri. Parshwanath S/O Kirappa Hotapeti vs M/S. Rokhade Industries on 1 April, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO. 100202 OF 2018
BETWEEN:
SRI PARSHWANATH
S/O. KIRAPPA HOTAPETI,
AGE: 49 YEARS, OCC: CIVIL CONTRACTOR,
R/O: PLOT NO.25, CHAITANYA NAGAR,
MURDESHWAR FACTORY ROAD,
GOKUL ROAD, HUBBALLI-580 030.
... PETITIONER
(BY SMT. ARCHANA A. MAGADUM, ADVOCATE)
AND:
M/S.ROKHADE INDUSTRIES
THROUGH ITS PARTNER SRI MAHAVEER
S/O. BABURAO ROKHADE,
AGE: 48 YEARS, OCC. BUSINESS,
R/O. HOUSE NO.16, ROKHADE CASTLE,
1ST FLOOR FLAT NO.3, PRASHANT COLONY,
VIDYANAGAR, HUBBALLI-580 021.
... RESPONDENT
(BY SMT.JYOTI P.DESAI, ADVOCATE)
Digitally signed by THIS CRIMINAL REVISION PETITION IS FILED UNDER
GEETHAKUMARI SECTION 397 READ WITH UNDER SECTION 401 OF CR.P.C. SEEKING
PARLATTAYA S TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT DATED
Location: High 03.10.2018 PASSED BY THE I-ADDL. DIST. & SESSIONS JUDGE,
Court of Karnataka DHARWAD, SITTING AT HUBBALLI IN CRL.A.NO.72/2017 AND
CONSEQUENTLY SET-ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 06.07.2017 PASSED BY THE PRL. CIVIL JUDGE
& JMFC COURT, HUBBALLI IN C.C.NO.495/2017.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 27.02.2025, COMING ON FOR
PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCING
FROM BANGALORE BENCH, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
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CAV ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Challenging judgment/order dated 03.10.2018 passed by
I Addl. District and Sessions Judge, Dharwad sitting at Hubballi
('Appellate Court', for short) in Crl.A.no.72/2017 and
judgment/order dated 06.07.2017 passed by Principal Civil
Judge and JMFC, Hubballi ('Trial Court', for short) in
C.C.no.495/2017, this revision petition is filed.
2. Smt.Archana A. Magadum, learned counsel for
petitioner submitted, respondent (complainant) had filed
private complaint against petitioner, stating that complainant
was a partner in M/s.Rokhade Industries, partnership firm
engaged in sale of Shahabad stones. It was stated that
petitioner was brother-in-law of complainant and was civil
contractor by occupation and for execution of his works,
purchased goods from complainant. That petitioner had
contractual relationship from 2007 and availing credit purchase
facility, made purchases from time to time, for which bills were
drawn. It was stated, petitioner had purchased goods on credit
basis for Rs.3,69,055.50/- and for payment, issued cheque
bearing no.0201990, drawn on Ratnakar Bank Limited, Hubballi
Branch on 25.02.2013. And when said cheque was presented
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through complainant's banker Karnataka Bank Limited, Hubballi
on 20.02.2013, it was dishonored as "Account closed". On
communication, petitioner was alleged to have issued cheque
dated 06.03.2013 bearing no.0221895 of drawn on same bank
but different account number. On presentation, even said
cheque was dishonoured on 08.03.2013 with endorsement
"Funds Insufficient".
3. Therefore, complainant got issued legal notice
dated 25.03.2013. And as petitioner failed to pay cheque
amount within fifteen days of receipt of notice and instead sent
untenable reply on 10.04.2013, offence under Section 138 of
Negotiable Instruments Act, 1881 ('NI Act', for short) was
committed. Hence, complaint was filed.
4. It was submitted, after appearance, petitioner
pleaded not guilty and sought trial. Complainant examined
himself as PW.1 and got marked Exhibits P1 to P23. Thereafter,
petitioner was apprised of incriminating circumstances and his
statement denying same was recorded under Section 313 of
Cr.P.C. Petitioner also led oral evidence by examined himself as
DW.1 and without marking any documents.
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5. It was submitted, petitioner set-up substantial
defence not only denying transactions with complainant after
2009, but also alleging misuse of petitioner's cheque. Ignoring
same, trial Court convicted petitioner and sentenced him to pay
fine amount of Rs.7,38,111/- and in default to undergo simple
imprisonment for 6 months. Aggrieved, petitioner preferred
Crl.A.no.72/2017 on various grounds. It was submitted,
without proper appreciation, appeal was dismissed on
03.10.2018, thereby leading to this revision petition.
6. At outset, it was submitted, during relevant period,
there were no transactions between complainant and petitioner.
Therefore, there was no legally enforceable debt. Though it was
allegation of petitioner availing credit facility for purchase of
goods worth Rs.3,69,055.55/- was denied, no material was
produced to establish supply of goods to petitioner or about
their delivery at respective places. It was submitted, even as
per complaint, transaction began in year 2007 and ended in
2009. Therefore, cheque dated 08.03.2013 would be in respect
of time barred debt.
7. It was submitted, though there was raising of
presumption under Section 139 of NI Act, petitioner had not
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only taken specific stand, but also pointed out, Bills issued on
various dates had continuous serial numbers, even when
complainant had reasonably large volume of sales of stones,
thereby giving rise to grave doubt. Even in cross-examination
of complainant, admissions elicited that none of Exs.P8 to 10 -
Bills had counter signatures from recipients or driver of vehicle
in which they were transported.
8. Complainant admitted, there was no mention about
any outstanding amount from petitioner in Ex.P19 - balance
sheet. Likewise, it was admitted, even in VAT or income tax
returns at Exs.P13 to P18, there was no mention of outstanding
amount from anyone or particulars of amount due from
petitioner. It was submitted, bills did not have TIN numbers,
raising doubt. Thus, without proper records to establish
transaction with petitioner in year 2013, false and baseless
complaint was filed. It was alleged, cheque was issued during
currency of earlier transactions, with view to recover time-
barred debt. It was submitted as both trial as well as appellate
Courts had failed to appreciate above material, interference
was warranted.
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9. On other hand, Smt.Jyothi P. Desai, learned
counsel for complainant opposed petition on ground that it was
against concurrent findings, leaving no scope for interference.
Repelling contentions of petitioner, it was submitted,
admittedly, petitioner was relative of complainant and
contractor by occupation. It was submitted, petitioner had
purchased goods from complainant since year 2007 and cleared
dues from time to time by availing credit purchase facility. But,
in year 2013, he purchased goods for Rs.3,69,055.50/- on
credit.
10. It was submitted, petitioner initially issued cheque
bearing no.0201990 drawn on Ratnakar Bank towards
outstanding amount that too after many requests to clear debt.
On presentation, said cheque was dishonored due to closure of
account. Thereafter, petitioner issued Ex.P.1 - cheque
no.0221895 drawn on different account in same Bank. On
presentation, even said cheque was dishonored due to
insufficient funds in account. As petitioner failed to repay even
after receiving demand notice and instead addressed untenable
reply, complaint was filed.
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11. It was submitted, complainant's claim were duly
supported by Bills, Ledger Extracts, VAT returns, etc.
Therefore, defence set up were without any substance. It was
submitted, in his cross examination, petitioner admitted signing
and issuing cheque, thereby attracting presumption in favour of
complainant about cheque issued for discharge of legally
enforceable debt. Though, petitioner denied same, provisions of
NI Act casted burden on petitioner to rebut presumption under
Section 139 of NI Act. As no material was placed to corroborate
defences, they were rightly negatived by both Courts. On above
grounds, sought for dismissing petition.
12. Heard learned counsel and perused impugned
judgment and order.
13. From above, point that arises for consideration is:
"Whether revision petitioner has made
out a case for interference with
concurrent findings?"
14. This revision petition is under Section 397 read with
Section 401 of CrPC. As per decision of Hon'ble Supreme Court
in case of Amit Kapoor v. Ramesh Chander and Anr.
reported in (2012) 9 SCC 460, scope of interference with
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concurrent findings was held to be extremely limited and
normally only on questions of law and not findings of fact.
15. Main grounds of challenge are denial of transaction
between petitioner and complainant and on said basis
contending that there was no legally enforceable debt; and
misuse of cheque issued long ago as security purposes only for
transactions of earlier years by forgery filling up of blanks in
cheque etc.
16. Before trial Court, complainant made clear
assertions about petitioner being Civil contractor, complainant
being supplier of construction material and petitioner making
purchases from complainant. He also stated that petitioner was
brother-in-law of complainant and credit purchase facility being
availed. There are also clear averments about particulars of
purchased goods worth Rs.3,69,055.50/- due for payment,
issuance of cheque dated 25.02.2013 bearing no.0201990
drawn on Account no.1053 in Ratnakar Bank Ltd., Hubballi. It is
also stated that when presented for payment, it returned
dishonored due to Closure of Account. Complainant has also
specifically stated that on being appraised of dishonor,
petitioner issuing fresh cheque dated 06.03.2013 bearing
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no.0221895 drawn on Account no.980 in Ratnakar Bank Ltd.,
Hubballi. And about dishonor of said cheque also on ground of
insufficiency of funds, when presented for collection on same
day. He further stated, despite issuing demand notice on
25.03.2013, petitioner failed to make payment, thereby
committing offence under Section 138 of NI Act.
17. During trial, complainant produced both dishonored
cheques with bank endorsements about dishonor as Exs.P.1 to
P.4; Legal Notice with postal receipts/acknowledgements as
Exs.P.5 and 6; Reply Notice as Ex.P.7; Tax Invoices as Exs.P.8
to P.10; Ledger extracts as Exs.P.11 and P.12; IT Return as
Ex.P.13; VAT Returns as Exs.P14 to P.18; Balance Sheet as
Ex.P.19; Memorandum of acknowledging receipt of documents
as Ex.P.20; Partnership Deed, Dissolution of Partnership and
Authorization letter as Exs.P.21 to P.23. In rebuttal, petitioner
chose to lead only oral evidence examining himself as DW.1.
18. Though, re-appreciation would not be appropriate
in Revision, unlike as contended by petitioner, bare glance at
Exs.P.1 and P.2 - cheques does not indicate that they were
signed together. He has also not disclosed that signed cheques
issued were drawn on different accounts. Neither in Ex.P.7 nor
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in oral evidence, petitioner disclosed particulars of alleged
signed blank cheques issued to complainant.
19. It is also seen, there is no contention about
complaint being defective due to violation of statutory time
limit prescribed in Section 138 of NI Act. Though there is denial
of transaction and issuance of cheque towards legally
enforceable debt, there is admission about execution of
cheques, although for security purposes only. Said admission
would qualify for attraction of presumption under Sections 118
and 139 of NI Act as per law laid down by Hon'ble Supreme
Court in Rangappa v. Sri Mohan reported in (2010) 11 SCC
441. Therefore, burden to dislodge presumption would be on
accused, either by leading specific evidence by accused or by
raising probable/acceptable defence and substantiating same
from evidence led by complainant.
20. In instant case, rebuttal is sought to be
substantiated firstly by denying transaction and alleging failure
on part of complainant to produce relevant record and also
substantiating doubt over records produced. But, complainant
has produced tax invoices as Exs.P.8 to 10, Ledger extracts as
Exs.P.11 and 12, IT Return as Ex.P.13, VAT Returns as
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Exs.P.14 to P.18 and Balance Sheet as Ex.P.19. Even
contentions such as non-mentioning of outstanding amount in
IT Return and Balance Sheet would not hold much water as
Ex.P.19 - Balance Sheet attested by Chartered Accountant
specifically mentions total due amount from petitioner at
Rs.3,69,055.50/-.
21. Insofar as specific contention for casting doubt
about Exs.P.8 to 10 on ground that they are serially numbered
though drawn on different dates, on perusal, it is seen, two
Bills namely Bill no.27 dated 25.07.2008 for Rs.10,687.50/-
and Bill no.46 dated 08.11.2008 for Rs.19,724/- are marked as
Ex.P.8; Ex.P.9 is Bill no.295 dated 08.06.2012 for Rs.19,950/-.
Unlike contended, they bear non-serial Bill numbers and do not
exude suspicion.
22. Said contention is however, sought to be
highlighted referring to Ex.P.10 wherein 17 bills virtually and
serially numbered though drawn in respect of different
transactions against petitioner for period between 05.01.2013
and 16.02.2013. During cross-examination of complainant,
suggestion made Ex.P.12 - ledger extract would indicate that
under bills no.17 to 34, there was sale of material only to
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petitioner, between January and March, 2013, is admitted.
Though suggestion is made about suppressing sale to others,
said suggestion is denied. It is seen, very suggestion made by
petitioner-accused would contradict his contention. Further, it is
settled law that merely making suggestion and eliciting denial
would not be sufficient to probabilize defence as per ratio in
Rangappa's case (supra).
23. Bare perusal of Ex.P.12 - ledger extract does not
indicate anything suspicious. In fact, Exs.P.8 to 12 are marked
without any objection. Even admissions elicited about non-
mention of particulars of consignee, acknowledgment of
delivery by consignee or by driver of vehicle would not be
material, firstly, as per complainant, order being placed by
accused and bills containing particulars of vehicle in which they
were transported with most of them also containing signatures
of driver. Likewise, contentions that audited records are
ledger/bills not containing signatures of Tax Authorities would
be too hypertechnical, as proceedings under NI Act are
summary in nature. [Indian Bank Association v. Union of
India, (2014) 5 SCC 590].
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24. It is also seen that petitioner failed to elicit any
admission about issuance of cheque for security purposes. It is
held by Hon'ble Supreme Court in APS Forex Services (P)
Ltd. v. Shakti International Fashion Linkers reported in
(2020) 12 SCC 724 that mere taking of such defence would
not be sufficient to rebut presumption under Section 139
of NI Act.
25. While passing impugned judgment, both Courts
have taken note of specific defence set up by petitioner and
after referring to entire material held commission of offence
under Section 138 of NI Act as established. There is no
challenge on sentence. Taking note of fact that cheque was
issued way back in year 2013 and as Section 138 of NI Act
permits imposition of sentence of twice cheque amount, even
same would not warrant interference. Point for consideration is
answered in negative. Consequently, following:
ORDER
Revision petition is dismissed.
Sd/-
(RAVI V.HOSMANI)
JUDGE
Psg/AV/GRD
