Smt B K Pushpa vs Sri M U Ganesh
2025 Latest Caselaw 10106 Kant

Karnataka High Court

Smt B K Pushpa vs Sri M U Ganesh on 12 November, 2025

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                       NC: 2025:KHC:45981
                                                   CRL.RP No. 639 of 2023


                  HC-KAR




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                      DATED THIS THE 12TH DAY OF NOVEMBER, 2025
                                          BEFORE
                           THE HON'BLE MR. JUSTICE RAVI V HOSMANI
                     CRIMINAL REVISION PETITION NO. 639 OF 2023
                 BETWEEN:
                     SMT B.K.PUSHPA
                     AGED ABOUT 42 YEARS,
                     W/O CHANDRU,
                     R/A GARAGANDOOR VILLAGE,
                     MADAPURA SOMWERPET TALUK,
                     KODAGU DISTRICT - 571 236.
                                                            ...PETITIONER
                 (BY SRI SACHIN B.S., ADVOCATE)
                 AND:
                     SRI M.U GANESH,
                     AGED ABOUT 39 YEARS,
                     S/O LATE M.K.UNNIKRISHNANA,
                     R/O SUNKADDAKATTE,
                     VIRAJPETE TOWN,
                     KODAGU DISTRICT - 571 218.
Digitally signed                                           ...RESPONDENT
by GURURAJ D (RESPONDENT - SERVED & UNREPRESENTED)
Location: High       THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C BY THE
Court of         ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE
Karnataka
                 COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED
                 JUDGMENT DATED 30.01.2023 IN THE CRIMINAL APPEAL
                 NO.5022/2019 ON THE FILE OF II ADDL. DISTRICT AND
                 SESSIONS JUDGE, KODAGU - MADIKERI, SITTING AT
                 VIRAJPET, THEREBY CONFIRMING THE JUDGMENT OF
                 CONVICTION AND ORDER OF SENTENCE DATED 09.07.2019 IN
                 C.C.NO.297/2017 ON THE FILE OF CIVIL JUDGE AND JMFC AT
                 VIRAJPET, AND CONSEQUENTLY DISMISS THE COMPLAINT
                 FILED BY THE COMPLAINANT/SWRESPONDENT FOR THE
                 OFFENCE P/U/S 138 OF N.I. ACT.
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                                                       NC: 2025:KHC:45981
                                                CRL.RP No. 639 of 2023


 HC-KAR




    THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

                               ORAL ORDER

Challenging judgment dated 30.01.2023 passed by II

Additional District and Sessions Judge, Kodagu - Madikeri

(sitting at Virajpet), in Crl.A.no.5022/2019 confirming

judgment of conviction and order of sentence dated 09.07.2019

passed by Prl. Civil Judge and JMFC, Virajpet, in

C.C.no.297/2017, this revision petition is filed.

2. Sri Sachin B.S., learned counsel petitioner

submitted that revision petition was by petitioner (accused)

against concurrent erroneous findings convicting petitioner for

offence punishable under Section 138 of Negotiable

Instruments Act, 1881, ('NI Act', for short). It was submitted,

respondent (complainant) had filed complaint under Section

200 of Cr.P.C. alleging that accused was a lab technician,

running a diagnostic lab in Virajpet, beside complainant's shop

viz., 'Prince Lottery Shop'. On 03.10.2016, accused borrowed

Rs.6,00,000/- as hand loan for family needs and issued post-

dated cheque bearing no.060167 dated 03.03.2017 drawn on

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Corporation Bank, Virajpet towards repayment. But on

presentation, said cheque returned with endorsement

'insufficient funds' on 14.03.2017. And even when demand

notice dated 17.03.2017, got issued by complainant was duly

served on 20.03.2017, accused failed to repay amount, thereby

committing offence punishable under Section 138 of NI Act.

3. On appearance, accused denied allegations and

sought trial, whereupon complainant examined himself as PW.1

and got marked Exs.P.1 to P10. On appraisal of incriminating

material, which was denied, statement of accused was recorded

under Section 313 of Cr.PC. Thereafter accused examined

himself as DW.1 and got marked Exs.D1 to D.7.

4. It was submitted, accused had set up various

defence which though substantiated were overlooked and order

of conviction passed. Despite, being challenged in appeal, same

was confirmed without proper re-appreciation. Thus, orders

impugned were perverse and warranted interference.

5. It was firstly submitted, even when accused had

denied relationship of debtor and creditor and disputed financial

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capacity of complainant to lend such heavy amount, even in

reply to Demand Notice, complainant had failed to produce any

material, firstly to establish his financial capacity to lend said

amount to accused. Relying upon decision of Hon'ble Supreme

Court in case of APS Forex Services (P) Ltd. v. Shakti

International Fashion Linkers, reported in (2020) 12 SCC

724, it was submitted, on accused denying or disputing

financial capacity of complainant to pay amount, onus would be

on complainant to establish same with material.

6. In cross-examination of PW1, it was elicited lottery

business was closed and complainant was vending vegetables

and amount lent was not shown in income tax returns. It was

further submitted, both Courts failed to notice that Ex.P1 was

non-CTR cheque, but put up for collection only in year 2017,

substantiating accused's contention that it was stale. On said

grounds sought for allowing revision.

7. Respondent is served and unrepresented.

8. Heard learned counsel and perused material on

record.

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9. This revision petition is by accused challenging

concurrent findings of conviction of accused for offence

punishable under Section 138 of NI Act. As noted above,

challenge is mainly on ground of perversity of findings.

10. Insofar as first contention denying financial capacity

of complainant to lend huge amount of Rs.6,00,000/- to

accused, it is indeed seen that such contention is also urged in

Ex.P.6-reply to demand notice. Hon'ble Supreme Court in case

of Sanjabij Tari v. Kishore S Borcar & Anr. reported in

2025 SCC OnLine SC 2069, referring to decision in APS

Forex (supra) observed that, it was not an authority for

proposition that in case of denial of complainant's financial

capacity, presumption under Section 139 of NI Act would not

be attracted and it was held that presumption under NI Act was

rebuttable and when rebutted, onus would shift back to

complainant.

11. Even, contention that Ex.P.1 was a non-CTR cheque

and as such stale, would not hold much water as per circular of

RBI, non-CTR (and Non-MICR) cheques continued to be legal

tender until their discontinuation in 2022. Apart from above,

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trial Court observed that accused had failed to lead any

evidence to establish Ex.P.1 was issued as security for availing

loan of Rs.15,000/- in year 2006. It is not established that said

observation was contrary to material on record.

12. Insofar as contentions based on admission that

lending money was not included in IT returns. Hon'ble Supreme

Court in Sanjabij Tari (supra) has held to rebut presumptions

under NI Act, it would be open for accused to examine Income

Tax or Bank Officials and unless on reading of entire material

would lead to an inference that complainant did not have

wherewithal to lend amount as claimed, it would not be proper

to withdraw presumption. In instant case, trial Court has

observed that complainant had stated to be running lottery

shop and after banning of said business, begun trading in

ginger. Besides, Trial Court observed that Exs.P.7 to 9 showed

that in month of October 2016, there was balance of

Rs.6,02,920/-, Rs.4,47,870/- and Rs.93,552/- respectively in

account of complainant. Same would dispel any doubt about

financial capacity.