[Cites 6, Cited by 0]
Karnataka High Court
Mr Vincent D Costa vs Mr Anil Mantal on 9 December, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC:51873
CRL.RP No. 494 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
CRIMINAL REVISION PETITION NO. 494 OF 2023
BETWEEN:
MR. VINCENT D'COSTA
AGED ABOUT 54 YEARS
S/O LATE JEROME D'COSTA
R/AT DREAM KITCHEN AND INTERIORS
ESSEL WILCON, BELOW RADHA MEDICALS
BENDOORWELL CIRCLE, MANGALORE-01.
...PETITIONER
(BY MISS PRASANNA K., ADVOCATE)
AND:
MR. ANIL MANTAL
AGED ABOUT 48 YEARS
S/O O.P. MANTAL
R/AT PROPRIETOR OF M/S MAKARANA MARBLE
AND GRANITE CENTRE
Digitally signed by
GEETHAKUMARI NH 66, HOSABETTU-574227
PARLATTAYA S MANGALORE, D.K.
Location: High
Court of Karnataka ...RESPONDENT
(BY SRI RAKESH KINI, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
401 OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER DATED 06.04.2022 IN C.C.NO.1289/2016 ON THE
FILE OF THE J.M.F.C. (V COURT), MANGALURU, D.K AND SET
ASIDE THE JUDGMENT AND ORDER DATED 13.02.2023 IN
CRL.A.NO.78/2022 BEFORE THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2025:KHC:51873
CRL.RP No. 494 of 2023
HC-KAR
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
ORAL ORDER
Challenging judgment dated 13.02.2023 passed by
II Additional District and Session Judge, D.K., Mangaluru, in
Crl.A.no.78/2022 confirming judgment of conviction and order
of sentence dated 06.04.2022 passed by J.M.F.C (V Court),
Mangaluru, D.K., in C.C.no.1289/2016, this revision petition is
filed.
2. Miss Prasanna K., learned counsel for petitioner
(accused) submitted that impugned proceedings were initiated
on a private complaint filed by respondent (complainant) under
Section 200 of Code of Criminal Procedure, 1973, ('CrPC', for
short) stating that complainant was Proprietor of M/s.
Makarana Marble and Granite dealing in sale of Marble, Granite
Slab and Tiles etc., where accused purchased material on credit
basis as under.
Invoice Nos. Date Amount
478 29.10.2014 Rs.15,429/-
552 15.12.2014 Rs.3,950/-
572 23.12.2014 Rs.2,748/-
636 02.02.2015 Rs.78,316/-
745 21.03.2015 Rs.91,113/-
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3. It was stated as per above invoices, accused had
purchased material worth Rs.1,91,556/- and same was due. It
was further stated that said balance was confirmed by accused
in letters of confirmation dated 14.07.2016 undertaking to pay
said amount before 15.09.2016 and towards part payment of
said amount, accused had issued four cheques for total sum of
Rs.1,85,000/- as under.
Sl. Cheque nos. & Date Amount Bank
nos.
a 024215 Dtd:21.10.2016 Rs.50,000/- Drawn on
b 024216 Dtd:21.10.2016 Rs.50,000/ Axis Bank,
Mangalore
c 024217 Dtd:24.10.2016 Rs.50,000/
Branch,
024218 Dtd:24.10.2016 Rs.35,000/ Mangalore
d
4. And when said cheques were presented, they
returned dishonoured with endorsement 'Account Closed' on
26.10.2016 and even when demand notice got issued by
complainant on 01.11.2016 was served, accused failed to repay
amount, thereby committed offence punishable under Section
138 of Negotiable Instruments Act, 1881, ('NI Act', for short).
5. It was submitted, on appearance, accused denied
charges and sought trial. Therefore, complainant deposed as
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PW.1 and got marked documents as Exhibits-P1 to P23. On
being explained incriminating material, accused denied same
and did not choose to lead evidence.
6. It was submitted, accused had taken substantial
defence firstly, claiming that cheque in question was issued as
security for a transaction in year 2010, which was cleared, but
cheque misused by complainant to file present proceedings.
Secondly, Exs.P8 and P9 - account confirmation letters did not
refer to particular transactions i.e. invoice numbers and
therefore confirmation or acknowledgment cannot be stated to
be with regard to complainant's claim in question. Therefore
finding of both Courts that issuance of Exs.P1 to P4 - cheques
was towards legally enforceable debt was contrary to material
on record and as such, liable for interference and sought for
allowing revision petition.
7. On other hand, Sri Rakesh Kini, learned counsel for
complainant opposed revision petition. It was submitted, both
Courts had concurrently held accused guilty of offence
punishable under Section 138 of NI Act, by reasoned findings
and same did not call for interference. Insofar as contention
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that cheque was issued as security, it was submitted, there was
absolutely no material to substantiate same. On other hand,
complainant had not only produced account confirmation letters
dated 31.01.2015 and 31.03.2016 as per Exs.P8 and P9, which
bore acknowledgment/affirmation by accused, but had also
produced separate hand written acknowledgments as per
Exs.P10 and P11.
8. Apart from above, complainant had produced
invoices, whereunder accused was required to make payment
and E-Sugama extracts for dispatch as well as extracts of Cash
book, Ledger Extract and Audit report maintained by
complainant in course of his business. These documents would
substantiate transactions. It was submitted, mere adoption of
defence denying transaction without producing any specific
material would not be sufficient to upset presumption in favour
of complainant under Section 139 of NI Act. Therefore, no case
of perversity was established and revision petition was without
merit.
9. Heard learned counsel, perused impugned
judgments and record.
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10. This revision petition is by accused challenging
concurrent findings, convicting accused for offence punishable
under Section 138 of NI Act, on grounds of perversity, firstly,
that cheque in question was issued as security for transaction
in year 2010 which was cleared, but cheque was misused.
Admittedly, accused did not issue reply to demand notice, nor
stepped into witness-box. Same would invite an inference
against accused.
11. Further, cross-examination of PW.1 does not
indicate any elicitation as would probablize defence setup.
Indeed, there is a suggestion about issuance of Exs.P1 to P4 -
cheques for security purpose in year 2010, which is denied. It
is also seen, reason for dishonour of cheques is 'insufficient
funds' and for 'not stop payment'. In case, cheques in question
were issued as security for an earlier transaction which was
cleared, accused would have issued instructions to Bank for
stopping payment on said cheques or issued notice for their
return. Absence of same would also attract inference against
accused.
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12. On other hand, contention about issuance of cheque
as security for earlier transaction would admit signature of
accused on cheque as well as its issuance to complainant.
Same in view of ratio laid down by Hon'ble Supreme Court in
case of Bir Singh v. Mukesh Kumar reported in (2019) 4
SCC 197, attract presumption under Section 139 of NI Act, in
favour of complainant. Merely by making suggestions which are
denied, said presumption cannot be upset.
13. Moreover, while passing impugned judgment, trial
Court has not only taken note of above factors and found claim
of complainant being consistent and nothing material having
been elicited in cross-examination of PW.1. Therefore, findings
of trial Court and Appellate Court in favour of complainant,
convicting accused based on presumption cannot be stated to
be suffering from perversity i.e., finding without basis or finding
being contrary to material on record. No ground for
interference made out, revision petition is dismissed.
Sd/-
(RAVI V HOSMANI)
JUDGE
GRD
List No.: 1 Sl No.: 23
