Karnataka High Court
Zahiruddin Peerzade S/O Riyaz Ahmed vs Touseef Mulla on 30 July, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.RP No. 100117 of 2024
C/w. CRL.RP No. 100118 of 2024
& CRL.RP No. 100119 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 30TH DAY OF JULY 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
Crl. R.P. NO. 100117/2024
C/w. Crl.R.P. NO.100118/2024 & Crl. R.P. NO.100119/2024
(397(CR.PC)/438(BNSS))
IN CRL.RP. NO. 100117 OF 2024:
BETWEEN:
ZAHIRUDDIN PEERZADE S/O RIYAZ AHMED,
AGE: 38 YEARS, OCC: BUSINESS,
R/O: LINGRAJ CIRCLE, NAVALGUND,
TQ: NAVALGUND, DIST: DHARWAD,
ALSO AT R/O: IBRAHIM SADARSOFA BUILDING,
1ST CROSS, MALAPUR, BESIDE SAFA COMMUNITY HALL,
DHARWAD-580 001.
... PETITIONER
(BY SRI. RAGHAVENDRA A. PUROHIT, ADVOCATE)
AND:
Digitally signed
by RAKESH S
TOUSEEF MULLA S/O MAKBUL AHMED MULLA,
HARIHAR AGE: 38 YEARS, OCC: BUSINESS,
Location: HIGH R/O: HEBSUR, TQ: HUBBALLI,
COURT OF
KARNATAKA DIST: DHARWAD-580 001.
DHARWAD
BENCH ... RESPONDENT
Date: 2025.08.01
12:04:47 +0530 (BY SRI. S.K. KAYAKMATH, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION
397 R/W SECTION 401 OF CR.P.C., 1973, PRAYING TO SET ASIDE
JUDGMENT AND ORDER DATED 01.07.2023 PASSED BY THE COURT OF
JMFC-II, HUBBALLI IN C.C. NO.295/2019 AND JUDGMENT AND ORDER
DATED 31.01.2024 PASSED BY THE V ADDL. DISTRICT AND SESSIONS
JUDGE, DHARWAD, SITTING AT: HUBBALLI, IN CRL.A. NO.5060/2023,
OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT, AS NULL
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CRL.RP No. 100117 of 2024
C/w. CRL.RP No. 100118 of 2024
& CRL.RP No. 100119 of 2024
HC-KAR
AND VOID AND ACQUIT THE PETITIONER BY SETTING ASIDE THE
JUDGMENT AND ORDER DATED 01.07.2023 PASSED BY THE COURT OF
JMFC-II, HUBBALLI IN C.C. NO.295/2019 AND JUDGMENT AND ORDER
DATED 31.01.2024 PASSED BY THE V ADDL. DISTRICT AND SESSIONS
JUDGE, DHARWAD, SITTING AT: HUBBALLI, IN CRL.A. NO.5060/2023,
OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT IN THE
INTEREST OF JUSTICE.
IN CRL.RP. NO. 100118 OF 2024:
BETWEEN:
ZAHIRUDDIN PEERZADE S/O RIYAZ AHMED,
AGE: 38 YEARS, OCC: BUSINESS,
R/O: LINGRAJ CIRCLE, NAVALGUND,
TQ: NAVALGUND, DIST: DHARWAD,
ALSO AT R/O: IBRAHIM SADARSOFA BUILDING,
1ST CROSS, MALAPUR, BESIDE SAFA COMMUNITY HALL,
DHARWAD-580 001.
... PETITIONER
(BY SRI. RAGHAVENDRA A. PUROHIT, ADVOCATE)
AND:
TOUSEEF MULLA S/O MAKBUL AHMED MULLA,
AGE: 38 YEARS, OCC: BUSINESS,
R/O: HEBSUR, TQ: HUBBALLI,
DIST: DHARWAD-580 001.
... RESPONDENT
(BY SRI. S.K. KAYAKMATH, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION
397 R/W SECTION 401 OF CR.P.C., 1973, PRAYING TO SET ASIDE
JUDGMENT AND ORDER DATED 01.07.2023 PASSED BY THE COURT OF
JMFC-II, HUBBALLI IN C.C. NO.284/2019 AND JUDGMENT AND ORDER
DATED 31.01.2024 PASSED BY THE V ADDL. DISTRICT AND SESSIONS
JUDGE, DHARWAD, SITTING AT: HUBBALLI, IN CRL.A. NO.5057/2023,
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT, AS
NULL AND VOID AND ETC.
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CRL.RP No. 100117 of 2024
C/w. CRL.RP No. 100118 of 2024
& CRL.RP No. 100119 of 2024
HC-KAR
IN CRL.RP. NO. 100119 OF 2024:
BETWEEN:
ZAHIRUDDIN PEERZADE S/O RIYAZ AHMED,
AGE: 38 YEARS, OCC: BUSINESS,
R/O: LINGRAJ CIRCLE, NAVALGUND,
TQ: NAVALGUND, DIST: DHARWAD,
ALSO AT R/O: IBRAHIM SADARSOFA BUILDING,
1ST CROSS, MALAPUR, BESIDE SAFA COMMUNITY HALL,
DHARWAD-580 001.
... PETITIONER
(BY SRI. RAGHAVENDRA A. PUROHIT, ADVOCATE)
AND:
TOUSEEF MULLA S/O MAKBUL AHMED MULLA,
AGE: 38 YEARS, OCC: BUSINESS,
R/O: HEBSUR, TQ: HUBBALLI,
DIST: DHARWAD-580 001.
... RESPONDENT
(BY SRI. S.K. KAYAKMATH, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION
397 R/W SECTION 401 OF CR.P.C., 1973, PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 01.07.2023 PASSED BY THE COURT OF
JMFC-II, HUBBALLI IN C.C. NO.296/2019 AND JUDGMENT AND ORDER
DATED 31.01.2024 PASSED BY THE V ADDL. DISTRICT AND SESSIONS
JUDGE, DHARWAD, SITTING AT: HUBBALLI, IN CRL.A. NO.5059/2023,
OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT, AS NULL
AND VOID AND ACQUIT THE PETITIONER BY SETTING ASIDE THE
JUDGMENT AND ORDER DATED 01.07.2023 PASSED BY THE COURT OF
JMFC-II, HUBBALLI IN C.C. NO.296/2019 AND JUDGMENT AND ORDER
DATED 31.01.2024 PASSED BY THE V ADDL. DISTRICT AND SESSIONS
JUDGE, DHARWAD, SITTING AT: HUBBALLI, IN CRL.A. NO.5059/2023,
OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT IN THE
INTEREST OF JUSTICE.
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CRL.RP No. 100117 of 2024
C/w. CRL.RP No. 100118 of 2024
& CRL.RP No. 100119 of 2024
HC-KAR
THESE PETITIONS ARE COMING ON FOR ORDERS THIS
DAY, ORDER IS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. These three criminal revision petitions are filed
under Section 397 read with Section 401 of the Cr.P.C. is
between the same parties and arise out of the same
transaction and therefore, with the consent of the learned
counsel appearing on behalf of the parties, they are heard
together and disposed of by this common order.
2. Heard the learned amicus curiae appearing on
behalf of the petitioner and the learned advocate appearing
for the respondent.
3. It is the case of the respondent / complainant
that he and accused are acquainted to each other for the
last several years and at the request of the petitioner, the
respondent had paid an amount of Rs.16,66,800/- through
bank transaction and an amount of Rs.7,81,700/- through
cash and out of the aforesaid amount, the petitioner had
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HC-KAR
repaid a sum of Rs.8,28,000/- to the respondent and was
due to pay the balance amount of Rs.16,20,500/-. Towards
the repayment of the aforesaid amount of Rs.16,20,500/-,
the petitioner had issued three cheques. The particulars of
which are as follows:
(i) Cheque bearing No.531509, dated 03.01.2019
for a sum of Rs.6,20,500/-;
(ii) Cheque bearing No.531510, dated 05.01.2019
for a sum of Rs.5,00,000/-;
(iii) Cheque bearing No.536054, dated 11.01.2019
for a sum of Rs.5,00,000/-; &
All the cheques are drawn on State Bank of India,
Marata Colony Branch, Dharwad.
4. The aforesaid cheques issued by the petitioner to
the respondent towards discharge of his legally recoverable
debts was dishonoured by the drawee bank, with a shara
"funds insufficient". Thereafter, the respondent /
complainant had got issued separate legal notices to the
petitioner and since the petitioner had not paid the amount
covered under the cheques inspite of service of legal notices
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HC-KAR
on him, the respondent had approached the jurisdictional
Court of Magistrate and filed three separate private
complaints against the petitioner for the offence punishable
under Section 138 of the N.I. Act.
5. After taking cognizance of the alleged offence, the
petitioner was tried for the said offence before the Court of
Magistrate in C.C. Nos.295/2019, 284/2019 and 296/2019.
Learned Magistrate by three separate judgments and orders
dated 01.07.2023 passed in C.C. Nos.295/2019, 284/2019
and 296/2019 had convicted the petitioner for the offence
punishable under Section 138 of the N.I. Act and had
sentenced him to pay fine and in default to undergo Simple
Imprisonment for a period of three months. The said
judgment and order of conviction and sentence was
unsuccessfully challenged by the petitioner before the Court
of jurisdictional Sessions Judge in Crl.A. Nos.5060/2023,
5057/2023 and 5059/2023, which were dismissed on
31.01.2024 by the learned Sessions Judge by three separate
judgments.
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HC-KAR
6. Assailing the said judgments and orders of
conviction and sentence passed by the Courts below in the
aforesaid three proceedings, the petitioner is before this
Court in these three criminal revision petitions.
7. Learned amicus curiae appearing on behalf of the
petitioner having reiterated the grounds urged in the
petitions submits that the respondent / complainant has
failed to demonstrate his financial capacity to pay the
amount covered under the cheques to the petitioner.
Therefore, the Courts were not justified in convicting the
petitioner for the offence punishable under Section 138 of
the N.I. Act. In support of this arguments, he has placed
reliance on the judgment of the Hon'ble Apex Court in the
case of K. SUBRAMANI Vs. K.DAMODARA NAIDU1. He
submits that the loan agreement dated 23.04.2018 is
executed much after the alleged transaction and therefore, a
doubt arises with regard to the genuineness of the said
document. The cheques in question which were in custody of
(2015) 1 SCC 99
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HC-KAR
the respondent have been misused by him and false cases
were registered against the petitioner. Accordingly, he prays
to allow the petitions.
8. Per contra, learned counsel for the respondent
has argued in support of the impugned judgment and order.
9. A perusal of the materials on record would go to
show that the respondent had totally paid a sum of
Rs.16,66,800/- to the petitioner through bank transaction
and a sum of Rs.7,81,700/- was paid through cash. Since
the major portion of the amount was paid by the petitioner
to the respondent through bank transaction, it cannot be
said that he had no source of income to pay the amounts
covered under the cheque to the petitioner. The total
amount covered under the cheques in question is a sum of
Rs.16,20,500/-, while the amount paid by the respondent to
the petitioner through bank transaction is Rs.16,66,800/-. In
addition to the same, the parties have also entered into a
loan agreement subsequently and the said loan agreement
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has been produced before the trial Court and is marked as
an exhibit. The petitioner has not disputed his signatures
found in the said loan agreement and therefore, he cannot
dispute the contents of the said document. Since the
transaction between the parties is supported by a
documentary evidence and since the major portion of the
amount was paid by the respondent to the petitioner
through bank transaction, the transaction is proved by the
respondent / complainant and therefore, I do not find any
merit in the contention urged on behalf of the petitioner that
the respondent has failed to prove his source of income for
having paid the alleged loan to the petitioner. Under the
circumstances, the judgment in the case of K. SUBRAMANI
VS. K.DAMODARA NAIDU (supra) on which the reliance
has been placed by the learned amicus curiae cannot be
made applicable to the facts and circumstances of the
present case.
10. The petitioner has not disputed his signature on
the loan agreement, which is marked as an exhibit before
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the trial Court. The petitioner has also not disputed his
signature found in the cheques in question. The cheques in
question are drawn in favour of the respondent for the
amount mentioned in the cheques. It is not in dispute that
the cheques are drawn from the bank account of the
petitioner maintained by him in the State Bank of India,
Marata Colony Branch, Dharwad. After the cheques were
dishonoured by the drawee bank, the respondent has
complied with the statutory requirements by issuing legal
notices to the petitioner, which were duly served on him and
thereafter the private complaints were filed by the
respondent before the jurisdictional Magistrate.
11. Under the circumstances, the presumption under
Section 139 of the N.I. Act arises against the petitioner.
Unless, the petitioner rebuts the said presumption, he is
liable to be held guilty for the offence punishable under
Section 138 of the N.I. Act. The petitioner has not rebutted
the aforesaid presumption that arose against him by placing
necessary oral or documentary evidence before the trial
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Court. The petitioner has not stepped into the witness box
nor has he led any defence evidence in support of the
defence raised by him. Under the circumstances, the trial
Court was fully justified in convicting the petitioner for the
offence punishable under Section 138 of the N.I. Act. Even
the sentence imposed by the trial Court on the petitioner is
just and proper. The Appellate Court having appreciated
these aspects of the matter has rightly dismissed the
appeals filed by the petitioner confirming the judgment and
order of conviction and sentence passed against him by the
Court of Magistrate.
12. I do not find any illegality or irregularity either in
the judgment and order of conviction and sentence passed
by the trial Court or in the judgment and order passed by
the Appellate Court. Under the circumstances, I do not find
any merit in these criminal revision petitions. Accordingly,
the criminal revision petitions are dismissed.
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13. The services of the learned Amicus Curiae is
appreciated and placed on record and the remuneration for
his services in these three cases is together fixed at
Rs.15,000/-.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
VNP / CT:BCK
