Karnataka High Court
Khaja Khan Alias Crackers Khaja Khan S/O ... vs T Mustafa S/O T Abdul Khayum on 20 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2025:KHC-D:3524
CRL.RP No. 100246 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100246 OF 2023
[397(CR.PC)/438(BNSS)]
BETWEEN:
KHAJA KHAN @ CRACKERS KHAJA KHAN,
S/O. LATE CHAND KHAN,
AGE: 45 YEARS,
R/O. DALWALA MOSQUE,
2ND CROSS, ANJUMAN STREET,
BALLARI-583101.
... PETITIONER
(BY SRI B.S.SANGATI, ADVOCATE)
AND:
T. MUSTAFA S/O T.ABDUL KHAYUM,
AGE: 44 YEARS,
R/O. BANDIHATTI ROAD,
Digitally signed
NEAR GHOUSIYA MOSQUE,
KHALID NAGAR,
by
MALLIKARJUN
MALLIKARJUN RUDRAYYA
RUDRAYYA KALMATH
KALMATH Date:
2025.02.24
14:26:58
+0530
BALLARI-5838101.
... RESPONDENT
(BY SRI MOHAMMAD ABRAR S., ADVOCATE FOR
SRI SABEEL AHMED, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. SEEKING TO
CALL FOR RECORDS AND SET ASIDE THE ORDER DATED 28.04.2023
IN CRIMINAL APPEAL NO. 12/2023 PASSED BY THE COURT OF IV
ADDL. DISTRICT AND SESSIONS JUDGE (EXCLUSIVE DEDICATED
COMMERCIAL COURT) AT BALLARI, AND THE JUDGMENT PASSED IN
C.C.NO. 284/2021 DATED 23.01.2023 BY PRL. CIVIL JUDGE AND
J.M.F.C., BALLARI AND FURTHER PETITIONER BE ACQUITTED OF THE
OFFENCE UNDER SECTION 138 OF NI ACT.
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NC: 2025:KHC-D:3524
CRL.RP No. 100246 of 2023
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Challenging order dated 28.04.2023 passed by IV Addl.
District and Sessions Judge, (Exclusive Dedicated Commercial
Court), Ballary ('Appellate Court' for short) in Crl.Appeal
no.12/2023 and judgment/order dated 23.01.2023 passed by
Principal Civil Judge and JMFC, Ballary ('trial Court' for short) in
C.C.no.284/2021, this revision petition is filed.
2. Sri B.S.Sangati, learned counsel for petitioner
submitted that respondent/complainant had filed a private
complaint under Section 200 of Code of Criminal Procedure,
1973 ('CrPC' for short) stating that complainant was in scrap
business while accused was in business of selling crackers. That
in month of August, 2020 accused had approached complainant
for financial assistance for developing his business and that
complainant by borrowing amount from his friend C.R.Farooq
had paid Rs.10 Lakhs to accused on 14.08.2020 with condition
for repayment with interest within two months. Thereafter,
accused issued two cheques for Rs.5 Lakhs each drawn on
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SUCO Bank, Ballary bearing nos.263233 and 263234 dated
27.09.2020 and 26.09.2020 respectively. When cheque
no.263233 was presented for collection on 09.11.2020 it
returned dishonoured with endorsement "Insufficient Funds".
Even other cheque presented for collection on 25.11.2020 also
returned dishonoured on ground of insufficient funds.
Therefore, legal notice was got issued on 04.12.2020. Though
same was served on accused on 08.12.2020, he did not reply
nor repaid amount within stipulated period. Thus,
petitioner/accused committed offence punishable under Section
138 of Negotiable Instruments Act, 1881 ('NI Act' for short).
3. After issuance of summons and appearance,
accused denied charges and sought to be tried. Complainant
examined himself as PW-1 and got marked Exs.P1 to P7.
Thereafter, accused was appraised gist of incriminating material
against him and his statement under Section 313 of CrPC
recorded. He denied same as false and did not lead any
rebuttal evidence.
4. On consideration, trial Court proceeded to convict
accused for offence punishable under Section 138 of NI Act and
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passed order of sentence for payment of fine of amount of
Rs.15 Lakhs and in default, ordered to undergo simple
imprisonment for a period of 6 months.
5. Aggrieved, accused filed Crl.Appeal no.12/2023. In
impugned order, same was dismissed without proper
consideration. Aggrieved, accused was in revision.
6. It was submitted, both Courts concurrently failed to
appreciate main contention that complainant did not have
financial capacity to advance huge amount of loan of Rs.10
Lakhs and that no records were produced to establish same. It
was submitted, only documents produced were Exs.P1 and P2 -
Cheques, Exs.P3 and P4 - endorsements and Exs.P5 to P7 -
legal notice, postal receipts and acknowledgements. In absence
of clear material or record as would effectively implicate
accused having borrowed loan amount, it was not appropriate
to have convicted accused. Relying upon decision of Hon'ble
Supreme Court in case of John K. Abraham v. Simon C.
Abraham and another reported in (2014) 2 SCC 236 and
decisions of this Court in case of Yeshwanth Kumar v.
Shanth Kumar N reported in 2020 (1) KCCR 505, Sri
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Appayya v. State of Karnataka reported in 2020 (1) KCCR
513, Charles Harry v. Praveen Jain reported in 2024 (1)
KCCr 545, K.Govinda Nayak v. Janardhan Naik reported in
2024 (3) KCCR 2584 and in S.P.Rajkumar v.
M.J.Prabhakar reported in 2024 (1) KCCR 166, it was
submitted, Appellate Court had committed various infirmities in
establishing legally recoverable debt and therefore, sought for
allowing of revision petition.
7. On other hand, Sri Mohammad Abrar S., Advocate
appearing for Sri Sabeel Ahmed, learned counsel for
respondent/complainant sought to justify impugned judgments.
It was submitted, there was no dispute about issuance of
cheques. Merely denying liability without any more would not
be sufficient to rebut presumption under Section 139 of NI Act.
Therefore, relying upon ratio of decision in Rohitbhai Jivanlal
Patel v. State of Gujarat & Another reported in (2019) 18
SCC 106 regarding proof necessary for rebuttal of
presumption, trial Court had rightly convicted petitioner. It was
submitted, same was in accordance with law and as such,
rightly confirmed by Appellate Court. It was further submitted,
scope for interference against concurrent findings in revision
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petition was extremely limited and findings recorded, being
findings of fact cannot be interfered with. On said grounds,
sought dismissal of revision petition.
8. Heard learned counsel and perused records.
9. From above, only point that arises for consideration
is:
"Whether petitioner/accused establishes that
impugned judgments/orders passed by trial Court
and Appellate Court suffer from perversity and call
for interference?"
10. This is a revision petition under Section 397 read
with Section 401 of CrPC. Hon'ble Supreme Court in case of
Amit Kapoor v. Ramesh Chander & Another reported in
(2012) 9 SCC 460 has clarified contours of revisional
jurisdiction against concurrent findings as follows:
"18. It may also be noticed that the revisional
jurisdiction exercised by the High Court is in a
way final and no inter court remedy is available in
such cases. Of course, it may be subject to
jurisdiction of this Court under Article 136 of the
Constitution of India. Normally, a revisional
jurisdiction should be exercised on a question of
law. However, when factual appreciation is
involved, then it must find place in the class of
cases resulting in a perverse finding. Basically,
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the power is required to be exercised so that
justice is done and there is no abuse of power by
the court. Merely an apprehension or suspicion of
the same would not be a sufficient ground for
interference in such cases."
11. Though substantial contention disputing financial
capacity of complainant to lend huge amount of Rs.10 Lakhs as
alleged in complaint is raised, while passing impugned
judgment, trial Court has sifted through oral and documentary
evidence for assessing whether defence set up was
probabilized. Complainant examined himself as PW-1 and got
marked cheques as Exs.P1 and P2, endorsements as Exs.P3
and P4 and notice/postal acknowledgements as Exs.P5 to P7.
12. It observed there was admission about signature on
Exs.P1 and P2 in cross-examination of PW-1. It also observed
except making suggestions about complainant not having
financial capacity to lend huge amount, there was no material
produced to dislodge presumption under Section 139 of NI Act.
Appellate Court on re-appreciation concurred with findings.
13. Perusal of judgments would indicate, only admission
elicited was lack of knowledge of bank from which his friend
C.R.Farooq had withdrawn amount to lend to him, which by
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itself would not be sufficient to rebut presumption. It is also
seen Appellate Court took note of fact that petitioner failed to
reply to legal notice despite receipt. Thus, contention urged by
petitioner herein has been duly considered by both Courts. In
view of fact that petitioner had failed to rebut presumption,
extension of presumption under Section 139 of NI Act in favour
of complainant would be justified. Hon'ble Supreme Court in
case of Kishan Rao v. Shekar Gouda reported in (2018) 8
SCC 165 has held bare denial would not be sufficient to upset
presumption. Thus, findings of both Courts are in accordance
with law and cannot be termed to be suffering from perversity.
Point for consideration is therefore answered in negative.
Consequently, revision petition is dismissed.
SD/-
(RAVI V.HOSMANI)
JUDGE
RH,CLK
CT:PA
