Gautam Constructions vs Sri. Rajashekhar S/O Shanmukappa ...
2026 Latest Caselaw 609 Kant

Karnataka High Court

Gautam Constructions vs Sri. Rajashekhar S/O Shanmukappa ... on 29 January, 2026

Author: V.Srishananda

Bench: V.Srishananda

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                                                              NC: 2026:KHC-D:1159
                                                       CRL.RP No. 100064 of 2021
                                                   C/W CRL.RP No. 100065 of 2021

                      HC-KAR



                       IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
                         DATED THIS THE 29TH DAY OF JANUARY, 2026
                                           BEFORE
                          THE HON'BLE MR. JUSTICE V.SRISHANANDA
                      CRIMINAL REVISION PETITION NO. 100064 OF 2021
                                   (397(CR.PC)/438(BNSS))
                                             C/W
                      CRIMINAL REVISION PETITION NO. 100065 OF 2021


                      IN CRL.RP.NO.100064/2021:
                      BETWEEN:
                      GAUTAM CONSTRUCTIONS,
                      REPRESENTED BY ITS PROPRIETOR,
                      MALLIKARJUN BASHETTIYAVAR
                      AGE. 57 YEARS, OCC. BUSINESS,
                      FLAT NO.1201, 12TH FLOOR,
                      MANTRI GREEN, B BLOCK,
                      MALLESHWARAM, BENGALURU-560003.
                                                                      ...PETITIONER
                      (BY SRI. NAGARAJ C.KALLOORI AND
                      SRI. RAJESH B. RAJANAL, ADVOCATES)

                      AND:
                      SRI. RAJASHEKHAR MENASINKAI,
Digitally signed by
CHANDRASHEKAR
                      S/O. SHANMUKAPPA
LAXMAN
KATTIMANI
Location: High
                      OCC. AGRICULTURE AND BUSINESS,
Court of Karnataka,
Dharwad Bench         AGE. 45 YEARS,
                      R/O VIDYANAGAR, HUBBALLI-580021.
                                                                     ...RESPONDENT
                      (BY SRI. S.S. NIRANJAN ADVOCATE FOR
                      SRI. SHIVASHANKAR R.AMBLI, ADVOCATE)

                           THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION
                      397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
                      CONVICTION DATED 21/07/2017 BY PRINCIPAL CIVIL AND JMFC AT
                      HUBBALLI IN C.C.NO.494/2017 FOR THE OFFENCES PUNISHABLE
                      UNDER SECTION 138 OF N.I. ACT AND SENTENCING HIM TO PAY A
                      SUM OF RS.7,85,000/- IN THE EVENT OF FAILURE TO PAY THE SAID
                      AMOUNT, HE SHALL UNDERGO IMPRISONMENT FOR A PERIOD OF SIX
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                                 CRL.RP No. 100064 of 2021
                             C/W CRL.RP No. 100065 of 2021

HC-KAR



MONTH AND SET ASIDE THE IMPUGNED JUDGMENT DATED
09/02/2021 PASSED IN CRIMINAL APPEAL NO.80/2017 PASSED BY
THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD
SITTING AT HUBBALLI.

IN CRL. RP NO.100065/2021:
BETWEEN:

GAUTAM CONSTRUCTIONS,
REPRESENTED BY ITS PROPRIETOR,
MALLIKARJUN BASHETTIYAVAR,
AGE. 57 YEARS,
FLAT NO.1201, 12TH FLOOR,
MANTRI GREEN, B BLOCK,
MALLESHWARAM, BENGALURU-560003.
                                                     ...PETITIONER
(BY SRI. NAGARAJ C. KALLOORI AND
SRI. RAJESH B. RAJANAL, ADVOCATES)
AND:
VIJAYKUMAR S. KUNDANHALLI
AGE. 45 YEARS,
OCC. AGRICULTURE AND BUSINESS,
R/O. VISHWESHAR NAGAR,
HUBBALLI-580028.
                                                    ...RESPONDENT
(BY SRI. S.S. NIRANJAN AND
SRI. SHIVASHANKAR R. AMBLI, ADVOCATES)

       THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION
397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT    DATED   09/02/2021     PASSED   IN   CRIMINAL   APPEAL
NO.9/2017 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS
JUDGE AT HUBBALLI SITTING AT DHARWAD AND SET ASIDE THE
ORDER DATED 21/07/2027 PASSED BY THE PRINCIPAL CIVIL JUDGE
AND AJMFC AT HUBBALLI IN CRIMINAL C.C.NO.493/2017 FOR THE
OFFENCES U/S 138 OF N.I. ACT IN THE INTEREST OF JUSTICE.


       THESE CRIMINAL REVISION PETITIONS COMING ON FOR FINAL
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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                                  CRL.RP No. 100064 of 2021
                              C/W CRL.RP No. 100065 of 2021

HC-KAR



                          ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

Heard Sri Nagaraj C.Kolloori, learned counsel for the

petitioner and Sri S.S.Niranjan for Sri Shivashankar R.Ambli,

learned counsel for respondent.

2. In these two petitions, revision petitioner is the

common accused in respect of complaint filed by respondent-

Rajashekhar and Vijaykumar respectively in C.C.No.494/2017

and 493/2017 respectively. Those two cases were filed for taking

action for the commission of the offence under Section 138 of

the Negotiable Instruments Act, 1881 ('N.I. Act').

3. Learned trial Judge after completing the formalities,

summoned the accused, recorded the plea and thereafter, held

the trial and recorded the evidence of the complainant and based

on the documents filed before the Court, which comprised of

dishonored cheque, bank endorsement, legal notice and reply

notice, convicted the accused for the Offence Punishable under

Section 138 of the N.I. Act and sentenced as under:

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Sentence in C.C.No.494/2017 is as under:

"Acting under section 255(2) Cr.P.C. read with Section 138 of Negotiable Instruments Act, the accused is convicted for an offence punishable under Section 138 of Negotiable Instruments Act.

The Accused is liable to pay fine of Rs.7,85,000/- (Rupees Seven Lakh Eighty Five Thousand only). In the event of failure to pay the above said fine amount, accused shall undergo imprisonment for a period of six months.

Acting under Section 357(3) of Cr.P.C., out of above said fine amount, a compensation of amount of Rs.7,75,000/- (Rupees Seven Lakh Seventy Five Thousand only) be given to the complainant.

Out of entire fine amount, Rs. 10,000/-(Rupees Ten Thousand only) has to be remitted to the Government.

The Office is directed to supply a free copy of this judgment to the accused."

Sentence in C.C.No.493/2017 is as under:

"Acting under section 255(2) Cr.P.C. read with Section 138 of Negotiable Instruments Act, the accused is convicted for an offence punishable under Section 138 of Negotiable Instruments Act.

The Accused is liable to pay fine of Rs.6,60,000/- (Rupees Six Lakh Sixty Thousand only). In the event of failure to pay the above said fine amount, accused shall undergo imprisonment for a period of six months.

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Acting under Section 357(3) of Cr.P.C., out of above said fine amount, a compensation of amount of Rs.6,50,000/- (Six Lakh Fifty Thousand only) be given to the complainant.

Out of entire fine amount, Rs. 10,000/-(Rupees Ten Thousand only) has to be remitted to the Government.

The Office is directed to supply, a free copy of this judgment to the accused."

4. Being aggrieved by the same, accused filed an appeal

before the First Appellate Court in Criminal Appeal No.80/2017

and 79/2017 respectively. Before the First Appellate Court and

additional evidence was sought to be placed on record, which

was negated by the First Appellate Court and confirmed the

conviction and sentence.

5. Being further aggrieved by the same, accused is

before this Court in these revision petitions.

6. Sri Nagaraj C.Kolloori, learned counsel representing

the revision petitioner reiterating the grounds urged in the

revision petition, vehemently contented that accused is innocent

of the offences alleged against him and cheque has been

misused by the respective complainants who are respondents in

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these revision petitions and therefore, revision petition needs to

be allowed.

7. He would further contend that to establish that the

cheque has been misused, additional evidence was sought to be

placed on record before the First Appellate Court, which has not

been considered by the learned Judge in the First Appellate

Court, though observed that the additional evidence may indicate

that the accused is innocent of the offences alleged against him.

8. He would further contend that having made such an

observation, it was the duty of the First Appellate Court to allow

the additional evidence and not allowing the additional evidence

on record and disposing of the appeal has rendered the

impugned judgments in miscarriage of justice and sought for

allowing the revision petitions.

9. Per contra, Sri S.S.Niranjan, learned counsel for the

complainant in both the cases representing Sri Shivashankar

R.Ambli, Advocate on record, supports the impugned judgments.

10. He would further contend that when there is no

evidence placed on record by the accused before the trial Court,

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the learned trial Judge was justified in convicting the accused

taking note of the fact that the cheque marked at Exhibit P1 in

both the cases belonged to the accused and signature found

therein is that of the accused.

11. He would further contend that when there is no

evidence at all on record before trial Magistrate, there was no

scope for taking additional evidence before the First Appellate

Court and sought for dismissal of the revision petitions.

12. Having heard the arguments of both sides, this Court

perused the material on record meticulously.

13. On such perusal of the material on record, it is

crystal clear that the cheque marked at Exhibit P1 in both the

cases belonged to the accused and signature found therein is

that of the accused.

14. According to the complaint in both the cases, the

cheques were given towards the repayment of the legally

recoverable debt by contending that accused had financial

difficulty. Therefore, he had approached the respective

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complainants for financial help and towards the repayment of the

said financial help, the cheques in question were issued.

15. Contents of reply notice marked Exhibit P4, would

make it clear that the complainant was a stranger to the

accused. Further, the transactions as alleged by the complainant

are denied and it is contented that proprietorship of the accused

was closed long back on 30.03.2005 and the cheques have been

misused.

16. In order to rebut the presumption available to the

complainant under Section 139 of the N.I.Act, no oral or

documentary evidence were placed on record on behalf of the

accused.

17. Further, if there is a misuse of the cheque, as

contented by the accused, that too in a sum of ₹. 7,75,000/-, no

normal prudent person would keep quiet, especially after having

caused a reply through an Advocate in not taking any positive

action against the alleged misuse of the cheque.

18. In the case on hand, according to the accused, in

respective complainants are strangers to the accused and in such

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a case, a necessary police complaint would have been filed in the

normal course. Non-taking of any positive action on the part of

the accused would speak volumes about the alleged defence.

19. Further, for the reasons best known to the accused,

no defence evidence was placed. Therefore, the presumption

availed by the complainant has been resorted to by the learned

trial Magistrate while convicting the accused.

20. No doubt, before the First Appellate Court, additional

evidence was placed on record by filing an application under

Section 391 of the Cr.P.C.

21. If a party to the criminal case has not at all placed

any evidence on record at the trial stage, would such a party be

permitted to place additional evidence on record for the first time

before the First Appellate Court was the question that fell for

consideration before the Hon'ble Apex Court in the case of

Ajitsinh Chechuji Rathod vs. State of Gujarat and

Another.1 Their lordships, while considering the scope and ambit

(2024) 4 SCC 453

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of the consideration of the additional evidence for the first time

before the Appellate Court, in paragraph No.8, held as under:

"8. At the outset, we may note that the law is well- settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non- recording of such evidence may lead to failure of justice."

22. In the case on hand, since there was no evidence at

all placed on record by the accused before the trial Court,

seeking permission for the first time to place additional evidence

on record before the First Appellate Court was thus rightly

rejected by the First Appellate Court.

23. Therefore, none of the contentions urged on behalf of

the revision petitioner would hold water to set-aside the

well-reasoned orders passed by both the Courts, having regard

to the scope of the revisional jurisdiction.

24. According, the following order:

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ORDER

(i) The revision petitions are dismissed.

(ii) The amount in deposit is ordered to be

withdrawn by the complainant under due

identification, if not already withdrawn.

(iii) The balance amount is to be paid on or

before 28.02.2026.

Sd/-

(V.SRISHANANDA) JUDGE

CLK/RHR CT:CMU LIST NO.: 4 SL NO.: 18