K MOIDIN vs M/S PRESIDENCY BUILDERS AND DEVELOPERS
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:60736
CRL.P No. 12282 of 2022
C/W CRL.P No. 12284 of 2022
CRL.RP No. 1460 of 2022
AND 1 OTHER
CNR: KAHC010569892022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ND
DATED THIS THE 2 DAY OF NOVEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION NO.12282 OF 2022
C/W
CRIMINAL PETITION NO.12284 OF 2022
CRIMINAL REVISION PETITION NO.1460 OF 2022
CRIMINAL REVISION PETITION NO.1466 OF 2022
IN CRL.P NO.12282/2022:
BETWEEN:
1. K. MOIDIN, S/O K. KASIM,
AGED ABOUT 65 YEARS,
PROPRIETOR-IDEAL TRAVELS,
MILAGRES, MANGALURU,
R/AT IDEAL GARDEN,
MISSION COMPOUND,
FALNIR CROSS ROAD,
MANGALURU-575001.
…PETITIONER
(BY SRI. ANANDARAMA K., ADVOCATE)
AND:
1. M/S. PRESIDENCY BUILDERS AND DEVELOPERS,
B-ZONE I BUILDING, BENDOORWELL,
MANGALURU-575001
REPRESENTED BY ITS GPA HOLDER
AND LEGAL OFFICER
N. RAJESH ADIGA,
S/O N. RAMACHANDRA ADIGA,
AGED ABOUT 50 YEARS.
…RESPONDENT
Digitally signed
by DEVIKA M
Location: HIGH
COURT OF
KARNATAKA
(BY SRI. SACHIN B.S., ADVOCATE)
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CRL.P No. 12282 of 2022
C/W CRL.P No. 12284 of 2022
CRL.RP No. 1460 of 2022
AND 1 OTHER
CNR: KAHC010569892022
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
14.10.2022 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU IN CRL.RP.NO.14/2022
(ANNEXURE A) ENHANCING THE SENTENCE IMPOSED ON THE
ACCUSED/PETITIONER HEREIN VIDE JUDGMENT DATED
24.11.2021 PASSED BY THE COURT OF JMFC (V COURT),
MANGALURU, IN C.C.NO.1496/2015 CONVICTING THE
ACCUSED/PETITIONER HEREIN FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT AND CONSEQUENTLY DISMISS THE
CRIMINAL REVISION PETITION NO.14/2022.
IN CRL.P NO.12284/2022:
BETWEEN:
1. K. MOIDIN,
S/O K. KASIM,
AGED ABOUT 65 YEARS,
PROPRIETOR-IDEAL TRAVELS,
MILAGRES, MANGALURU,
R/AT IDEAL GARDEN,
MISSION COMPOUND,
FALNIR CROSS ROAD,
MANGALURU-575001.
...PETITIONER
(BY SRI. ANANDARAMA K., ADVOCATE)
AND:
1. M/S. PRESIDENCY BUILDERS AND DEVELOPERS,
B-ZONE I BUILDING, BENDOORWELL,
MANGALURU-575001,
REPRESENTED BY ITS GPA HOLDER
AND LEGAL OFFICER,
N. RAJESH ADIGA,
S/O N. RAMACHANDRA ADIGA,
AGED ABOUT 50 YEARS.
...RESPONDENT
(BY SRI. HARSHA G., ADVOCATE)
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CRL.P No. 12282 of 2022
C/W CRL.P No. 12284 of 2022
CRL.RP No. 1460 of 2022
AND 1 OTHER
CNR: KAHC010569892022
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DATED 14.10.2022 PASSED BY THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN
CRL.RP.NO.15/2022 (ANNEXURE-A) ENHANCING THE
SENTENCE IMPOSED ON THE ACCUSED/PETITIONER
HEREIN VIDE JUDGMENT DATED 24.11.2021 PASSED BY
THE COURT OF JMFC (V COURT), MANGALURU, IN
C.C.NO.1497/2015 CONVICTING THE ACCUSED/
PETITIONER HEREIN FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS
ACT AND CONSEQUENTLY DISMISS THE CRIMINAL
REVISION PETITION NO.15/2022.
IN CRL.RP NO.1460/2022:
BETWEEN:
1. K. MOIDIN,
S/O K. KASIM,
AGED ABOUT 65 YEARS,
PROPRIETOR-IDEAL TRAVELS,
MILAGES, MANGALURU,
R/AT IDEAL GARDEN,
MISSION COMPOUND,
FALNIR CROSS ROAD,
MANGALURU-575 001.
...PETITIONER
(BY SRI. ANANDARAMA K., ADVOCATE)
AND:
1. M/S. PRESIDENCY BUILDERS AND DEVELOPERS,
B-ZONE I BUILDING, BENDOORWELL,
MANGALURU-575001,
REPRESENTED BY IS GPA HOLDER
AND LEGAL OFFICER,
N. RAJESH ADIGA
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C/W CRL.P No. 12284 of 2022
CRL.RP No. 1460 of 2022
AND 1 OTHER
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S/O N. RAMACHANDRA ADIGA,
AGED ABOUT 50 YEARS.
...RESPONDENT
(BY SRI. SACHIN B.S., ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
14.10.2022 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU IN CRL.A.
NO.177/2021 (ANNEXURE-A) AND REVERSE THE
JUDGMENT DATED 24.11.2021 PASSED BY THE J.M.F.C.-V
COURT, MANGALURU, IN C.C.NO.1497/2015
(ANNEXURE-B) CONVICTING THE ACCUSED/PETITIONER
HEREIN FOR THE OFFENCE PUNISHABLE UNDER SECTION
138 OF NEGOTIABLE INSTRUMENTS ACT AND ACQUIT THE
ACCUSED/PETITIONER.
IN CRL.RP NO.1466/2022:
BETWEEN:
1. K. MOIDIN,
S/O K. KASIM,
AGED ABOUT 65 YEARS,
PROPRIETOR-IDEAL TRAVELS,
MILAGRES, MANGALURU,
R/AT IDEAL GARDEN,
MISSION COMPOUND,
FALNIR CROSS ROAD,
MANGALURU-575001.
...PETITIONER
(BY SRI. ANANDARAMA K., ADVOCATE)
AND:
1. M/S. PRESIDENCY BUILDERS AND DEVELOPERS,
B-ZONE I BUILDING, BENDOORWELL,
MANGALURU- 575001,
REPRESENTED BY ITS GPA HOLDER
AND LEGAL OFFICER,
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CRL.P No. 12282 of 2022
C/W CRL.P No. 12284 of 2022
CRL.RP No. 1460 of 2022
AND 1 OTHER
CNR: KAHC010569892022
N. RAJESH ADIGA,
S/O N. RAMACHANDRA ADIGA,
AGED ABOUT 50 YEARS.
...RESPONDENT
(BY SRI. SACHIN B.S., ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
14.10.2022 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU IN
CRL.A.NO.176/2021 (ANNEXURE-A) AND REVERSE THE
JUDGMENT DATED 24.11.2021 PASSED BY THE J.M.F.C. - V
COURT, MANGALURU IN C.C.NO.1496/2015 (ANNEXURE-B)
CONVICTING THE ACCUSED/PETITIONER HEREIN FOR THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF
NEGOTIABLE INSTRUMENTS ACT AND ACQUIT THE
ACCUSED/PETITIONER.
THESE PETITIONS COMING ON FOR ADMISSION THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
Heard the learned counsel for the petitioner and the
learned counsel for the respondent.
2. These petitions are filed against the conviction and
confirmation as well as enhancement made in the proceedings
initiated against the petitioner under Section 138 of the
Negotiable Instruments Act (‘NI Act’ for short).
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C/W CRL.P No. 12284 of 2022
CRL.RP No. 1460 of 2022
AND 1 OTHER
CNR: KAHC010569892022
3. The factual matrix of the case of the
complainant/respondent before the Trial Court in all the
criminal cases filed invoking Section 200 of Cr.P.C. for the
offence punishable under Section 138 of NI Act, is that specific
pleading was made that there was a transaction between the
complainant and the accused and with regard to the liability,
the accused had issued the subject matter of cheques for an
amount of Rs.5,00,000/-, Rs.6,00,000/- and Rs.19,00,000/-
and the cheques which were issued were bounced. Hence,
notice was issued and demand was made and there was no
compliance and hence, invoked the jurisdiction to penalize the
petitioner under Section 138 of the NI Act. The Trial Court
having considered the material available on record and also the
defence which was set up by the petitioner herein, convicted
and sentenced the petitioner in respect of criminal petition in
C.C.No.1496/2015 and C.C.No.1497/2015 and ordered to pay
an amount of Rs.6,10,000/- in C.C.No.1496/2015 and
Rs.5,10,000/- in C.C.No.1497/2015 i.e., Rs.10,000/- in
addition to the cheque amount of Rs.5,00,000/- and
Rs.6,00,000/- and ordered to pay the said amount within two
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C/W CRL.P No. 12284 of 2022
CRL.RP No. 1460 of 2022
AND 1 OTHER
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months, failing which shall undergo simple imprisonment for a
period of two months.
4. The same is challenged before the Revisional Court
by the accused as well as the complainant for enhancement.
The Revisional Court dismissed the appeals filed by the accused
and allowed the revision petitions filed by the complainant
enhancing the amount to the tune of Rs.10,20,000/- as against
Rs.6,10,000/- and Rs.8,50,000/- as against Rs.5,10,000/- and
enhanced the sentence for a period of six months in case of
default.
5. Being aggrieved by the dismissal of the appeals as
well as allowing of the revision petitions, the present petitions
are filed before this Court.
6. The main contention of the learned counsel for the
petitioners is that the Trial Court accepted the defence that
cheques were not issued in respect of the case which was
pleaded by the complainant and acquitted in one case for the
claim made by the complainant for an amount of
Rs.19,00,000/-, but convicted and sentenced in respect of
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C/W CRL.P No. 12284 of 2022
CRL.RP No. 1460 of 2022
AND 1 OTHER
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these two criminal proceedings in coming to the conclusion in
answering point Nos.1 to 4 that Exs.P1 and P8 both issued by
the accused are admitted in discharge of the amount received
by him as advance amount for selling the passenger bus to the
complainant i.e., the admission given by the accused. As the
complainant had dropped the idea of purchasing the bus, the
accused had issued Exs.P1 and P8 for Rs.6,00,000/- and
Rs.5,00,000/- along with interest for Rs.1,00,000/- on the
lumpsum amount and thereby the accused is in due for a sum
of Rs.11,00,000/-. The accused admits his liability on Exs.P1
and P8 both in the notice at Ex.P.18 at paragraph No.6 and in
the affidavit in lieu of examination in chief at paragraph No.4.
Considering the admission in Ex.P.18 as well as chief evidence,
the Trial Court comes to the conclusion that admitted facts
need not be proved and hence, ordered to pay the said
amount. The same is challenged before this Court.
7. The main contention of the learned counsel for the
petitioners is that even though there is an admission in Ex.P.18
legal notice at paragraph No.6 and so also in the chief
examination, the same is not an admission. The pleaded
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C/W CRL.P No. 12284 of 2022
CRL.RP No. 1460 of 2022
AND 1 OTHER
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liability is not proved and liability is in respect of other
transaction. The learned counsel in support of his arguments
relies upon the judgment of the Bombay High Court in the case
of NAVNEETDAS NARAYANDAS BARSHIKAR v.
BACCHUBHAI MULJI TANNA AND ANOTHER reported in
2012 (1) MWN (Cr.) (DCC) 87 (Bom) and particularly
brought to the notice of this Court paragraph Nos.20 and 21,
wherein discussion was made with regard to the payment and
also admitted transaction in respect of different transaction and
not in respect of the issuance of the cheque. The learned
counsel also brought to the notice of this Court the observation
made by the Bombay High Court that the complainant has
neither produced any cogent legal evidence in that respect, nor
produced any accounts, nor produced any bills/receipts
showing the dealing between the complainant and accused in
respect of the business transaction pertaining to the disputed
cheque in question, and hence, it is crystal clear that the
complainant failed to prove and establish beyond reasonable
doubt, that at the time of issuance of the disputed cheque in
question, there existed any legally enforceable debt/liability
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C/W CRL.P No. 12284 of 2022
CRL.RP No. 1460 of 2022
AND 1 OTHER
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against the accused and the disputed cheque in question, was
issued by the accused to the complainant towards the
discharge of said legally enforceable debt/liability, partly or in
whole.
8. The learned counsel also brought to the notice of
this Court the judgment of the Apex Court in the case of
YOGENDRA PRATAP SINGH v. SAVITRI PANDEY AND
ANOTHER reported in (2014) 10 SCC 713 and brought to the
notice of this Court paragraph No.30, wherein the Apex Court
discussed with regard to Section 138 of NI Act. The offence
under Section 138 is made effective only on fulfillment of the
eventualities contained in clauses (a), (b) and (c) of the
proviso. The learned counsel would contend that when the
same was not proved, mere issuance of cheque and dishonour
thereof would not constitute an offence by itself under Section
138 of the NI Act. The learned counsel relying upon the
principles laid down in the judgments would vehemently
contend that the Trial Court committed an error in convicting
and sentencing the petitioner and so also the Revisional Court
has committed an error in enhancing the amount and both the
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Courts failed to take note of the very ingredients of Section 138
of NI Act and committed an error.
9. Per contra, the learned counsel for the respondent
would submit that there is no dispute with regard to the
issuance of the cheques at Exs.P1 and P8 dated 14.10.2015.
The learned counsel would submit that issuance of cheques is
not disputed and liability is also not disputed. When the
cheques were presented, the same were bounced is also not
disputed. Demand of notice is also not disputed and not
complied with the demand. The learned counsel would contend
that in order to invoke Section 138 of the NI Act, essentials are
fulfilled. The learned counsel also vehemently contend that in
the reply notice Ex.P.18, which was referred by the Trial Court,
the accused categorically admitted in paragraph No.6 with
regard to the issuance of cheque and liability to the tune of
Rs.11,00,000/-. The learned counsel also contend that when
the liability is admitted, the very contention of the learned
counsel for the petitioner and the principles laid down in the
judgments of Bombay High Court and Supreme Court will not
come to the aid of the petitioner and hence, the very
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C/W CRL.P No. 12284 of 2022
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contention that both the Courts have committed an error
cannot be accepted.
10. Having heard the learned counsel for the petitioner
and the learned counsel for the respondent, these petitions are
filed against the concurrent finding of the Trial Court and the
Revisional Court i.e., conviction and sentence and modified by
the Revisional Court. The Trial Court has given the finding with
regard to the fact that issuance of cheque is not in dispute and
liability is also not in dispute and even in the reply notice also
admitted the liability to the tune of Rs.11,00,000/-. Insofar as
Exs.P1 and P8 are concerned, there is no dispute at all for
having issued the same and once the same is admitted in
paragraph No.6 of Ex.P.18 reply notice and so also in the
affidavit filed by the accused in examination in chief at
paragraph No.4, the Trial Court comes to the conclusion that
admitted facts need not be proved under Section 58 of the
Evidence Act. The main contention of the learned counsel for
the petitioner is that cheques Exs.P.1 and P8 are admitted, but
not in respect of the pleaded liability is concerned. The liability
is in respect of different transaction and hence, it is not an
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admission. The learned counsel also relies upon the judgment
of the Bombay High Court in the case of Navneetdas
Narayandas Barshikar (supra), wherein the Bombay High
Court while dealing with the issue involved between the parties
is concerned, particularly in paragraph No.21 taken note of with
regard to the liability is concerned. The Bombay High Court
comes to the conclusion that it is crystal clear that the
complainant failed to prove and establish beyond reasonable
doubt, that at the time of issuance of disputed cheque in
question, there existed any legally enforceable debt/liability
against the accused and the disputed cheque in question, was
issued by the accused to the complainant towards the
discharge of said legally enforceable debt/liability. But in the
case on hand, the very issuance of cheque is admitted and
liability is also admitted, and particularly the statement is also
made in respect of these two cheques are concerned to the
tune of Rs.5,00,000/- and Rs.6,00,000/-. When such being the
case, this judgment will not come to the aid of the petitioner
since on the date of issuance, there was a liability and admitted
the same.
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C/W CRL.P No. 12284 of 2022
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AND 1 OTHER
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11. The learned counsel of the petitioner also relied
upon the Apex Court judgment in the case of Yogendra
Pratap Singh (supra), wherein the Apex Court in paragraph
No.30 discussed with regard to Section 138 of the NI Act. No
doubt, Section 138 of the NI Act comprises of the main
provision which defines the ingredients of the offence and the
punishment that would follow in the event of such an offence
having been committed. The offence under Section 138 of the
NI Act is made effective only on fulfillment of the eventualities
contained in clauses (a), (b) and (c) of the proviso. But in the
case on hand, issuance of the cheque is not disputed and
bouncing of the cheque is also not disputed and demand made
within time is also not disputed. While giving the reply
particularly in respect of these two cheques are concerned,
categorically admitted that there is a liability. When such being
the case, the essentials of clauses (a), (b) and (c) also
complied. The contention of the learned counsel for the
petitioner that it is in respect of the different transaction and
admission is not in respect of these cheques, cannot be
accepted. When a specific pleading was made in the reply
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notice Ex.P.18 in paragraph No.6 that liability is admitted in
respect of Exs.P1 and P8 is concerned, no need to deal with the
matter in detail with regard to the said fact is concerned and
hence, this judgment also will not come to the aid of the
petitioner. When there is a clear admission on the part of the
petitioner for having issued the cheque to the tune of
Rs.5,00,000/- and Rs.6,00,000/- and when the liability is
admitted, the contention of the petitioner that the pleading is
different and hence, liability cannot be fastened on the
petitioner cannot be accepted. The scope of these petitions are
very limited. Both the Courts have given finding with regard to
the factual aspects of the matter. The substantial issue with
regard to the issuance of cheque is also not otherwise different
and essentials of Section 138 of the NI Act also proved. When
such being the case, I do not find any merit in the petitions to
come to a other conclusion and hence, no ground is made out
to entertain these petitions.
12. The learned counsel for the petitioner would
contend that presumption under Section 138 of the NI Act is
rebutted and the same is accepted by the Trial Court. Once the
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admission is available on record, the very contention that
presumption is rebutted cannot be accepted. If there was no
admission, then the said submission of the learned counsel for
the petitioner would be accepted. But here is a case of clear
admission on the part of the petitioner with regard to the
issuance of cheque and liability. When such admission is
available on record, the contention that presumption is
rebutted cannot be accepted.
13. In view of the discussions made above, I pass the
following:
ORDER
The petitions are dismissed.
This Court has not made any observations with
regard to the bouncing of cheque in other case,
wherein the petitioner is acquitted and appeal is
pending and this observation shall not influence the
Court in dealing with the appeal, which is pending.
Sd/-
(H.P.SANDESH)
JUDGE
MD
List No.: 1 Sl No.: 8