Karnataka High Court
Khaja Khan Alias Crackers Khaja Khan vs Sreenivasa Reddy S/O Venkatara Reddy on 7 March, 2025
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2025:KHC-D:4413
CRL.RP No. 100247 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.100247 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-5838101.
...PETITIONER
(BY SRI B.S. SANGATI, ADVOCATE)
AND:
SREENIVASA REDDY S/O. VENKATA REDDY,
AGE: 58 YEARS, R/O. RAMANJINEYA NAGAR,
BELGAL CROSS, COWL BAZAAR,
BALLARI-5838101.
...RESPONDENT
Digitally
VN
signed by
VN
BADIGER
(BY SRI RAJEEV S. METI, ADVOCATE)
BADIGER Date:
2025.03.11
14:27:21
+0530
THIS CRIMINAL REVISION PETITION IS FILED U/S. 397 R/W.
401 OF CR.PC., SEEKING TO CALL FOR RECORDS AND SET ASIDE
THE ORDER DTED 26.04.2023 IN CRIMINAL APPEAL NO. 13/2023
PASSED BY THE COURT OF IV ADDL. DIST. AND SESSIONS JUDGE
(EXCLUSIVE DEDICATED COMMERCIAL COURT) AT BALLARI AND THE
JUDGMENT PASSED IN CC NO. 829/2019 DATED 18.01.2023 BY II
ADDL. CIVIL. JUDGE AND JMFC BALLARI AND FURTHER PETITIONER
BE ACQUITTED OF THE OFFENCES UNDER SECTION 138 OF
NEGOTIABLE INSTRUMENT ACT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2025:KHC-D:4413
CRL.RP No. 100247 of 2023
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
1. Heard Sri.B.S.Sangati, learned counsel for the
revision petitioner. None appears for the respondent.
2. Revision petitioner is the accused who suffered
an order of conviction for the offence punishable under
Section 138 of the Negotiable instrument Act, 1881 (for
short, 'the N.I.Act') in C.C.No.829/2019 confirmed in
Crl.A.No.13/2023.
3. Facts in a nutshell for disposal of the revision
petition are as under:
A complaint came to be lodged under Section 200 of
the Criminal Procedure Code (for short, 'the Cr.P.C.')
alleging the commission of the offence punishable under
Section 138 of the N.I.Act, by contending that accused has
borrowed hand loan to meet the domestic expenses in a
sum of Rs.3,80,000/- from the complainant with a promise
to repay the same within a period of 2 months. Since there
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was no repayment and repayment of the hand loan was
demanded and in that regard accused had issued two
cheques drawn on SUCO bank, Ballari, dated 11.03.2019,
one cheque bearing 263238 of Rs.1,60,000/- and another
cheque bearing No.263237 of Rs.2,20,000/- which on
presentation came to be dishonoured. Notice was issued
calling upon the accused to repay the same.
4. Despite service of notice, there was neither
reply nor compliance. Accordingly complainant sought for
action.
5. Learned trial magistrate after completing
necessary formalities, summoned the accused and
recorded plea. Accused pleaded not guilty. Therefore, trial
was held.
6. Complainant got examined himself as PW.1 and
placed on record 9 documents which were exhibited and
marked as Ex.P.1 to P.9. Cross examination of the
complainant did not yield any positive material so as rebut
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the presumption available to the complainant under
section 139 of the N.I.Act.
7. Accused got examined himself as DW.1 and
deposed before the court that cheques in question was not
issued by him, but it was issued by one Naseer who is
uncle who had kept singed cheques with him and the said
cheque were parted away by his uncle to the complainant
in respect of the financial transactions they had and
therefore, there is a misuse of cheque.
8. In his cross examination, DW.1 (accused)
admits that he did not take any action against the
complainant or said Nazeer for having misused the
cheques.
9. Thereafter, learned trial judge heard the parties
and convicted the accused and imposed the fine of
Rs.3,85,000/- out of which sum of Rs.3,80,000/-was
ordered to be paid as compensation and balance sum of
Rs.5000/- towards the defraying expenses of the State.
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10. Being aggrieved by the same, accused
preferred an appeal before the District Court in
Crl.A.No.13/2023.
11. Learned judge in the first appellate Court after
securing the records, heard the parties in detail and on
reappreciation of the material evidence on record,
dismissed the appeal of the accused.
12. Being further aggrieved by the same, accused is
before this Court in this revision petition.
13. Sri.B.S.Sangati, learned counsel for the revision
petitioner reiterating the grounds urged in revision petition
vehemently contended that both the courts have not
properly appreciated the material evidence on record and
convicted the accused resulting in miscarriage of justice
and sought for admitting revision petition for further
consideration.
14. Learned counsel for respondent remained
absent.
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15. Having heard the arguments of Sri.B.S.Sangati,
this Court perused the material on record meticulously
including the trial Court records.
16. On such perusal of the material on record, it is
crystal clear that issuance of cheques and signature of the
accused in the said cheques is not in dispute. It is the case
of the accused that the cheques in question with his uncle
Nazeer who had some financial transactions with the
complainant and in that regard, it is his uncle-Naseer who
parted away the cheques to complainant.
17. To substantiate this aspect of the matter,
except the self serving testimony of accused, there is no
other material on record. For the reasons best known to
the accused, he did not choose to examine Nazeer as a
witness. No reply has been sent to the legal notice is a
significant factor, while appreciating the material on
record.
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18. No normal prudent person would keep quite, if
a valuable security in the form of cheque is misused by
some miscreant.
19. In this regard, no positive action has been
taken by the accused even after he entered appearance
before the trial magistrate engaging the services of an
advocate in filing a criminal complaint against complainant
and Naseer nor at least issued any legal notice seeking for
return of the cheques and resisting from proceeding with
the criminal case already instituted by the complainant.
20. When all these factors has been viewed
cumulatively, the defence having not been established by
the accused, learned trial judge was justified raising the
presumption in favour of the complainant as the cheques
admittedly came to be dishonoured with an endorsement
"insufficient funds" and signature of the accused in both
cheques has been established and issuance of the cheques
as propounded by the complainant.
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21. Accordingly, this court does not find any legal
infirmity or perversity or patent factual defects so as to
admit the revision petition for further consideration.
22. However, the impugned orders needs a slight
modification insofar as imposing the fine of Rs.5,000/-
towards the defraying expenses of the State as lis privy to
the parties and no State machinery is involved. Taking
note of the same, the same needs to be set aside.
23. Hence, following order is passed.
ORDER
i. Criminal revision petition is partly allowed.
ii. While maintaining the conviction of the
accused/revision petitioner for the offence under
Section 138 of the N.I.Act, fine amount ordered
by the trial magistrate in a sum of Rs.3,85,000/-
to reduced to Rs.3,80,000/-.
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iii. Entire fine amount is order to be paid as
compensation to the complainant.
iv. Time is granted to pay the balance fine amount
till 30.03.2025.
v. Failure to make the payment, accused shall
undergo imprisonment as ordered by the learned
trial magistrate.
vi. Sum of Rs.5,000/- imposed by the learned trial
judge towards defraying expenses of the State is
hereby set aside.
Ordered accordingly.
SD/-
(V.SRISHANANDA)
JUDGE
AC
CT:PA
