SRI MOHAMMAD RAFI vs SRI SURESH

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 14 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MRS. JUSTICE GEETHA K.B.

CRIMINAL REVISION PETITION NO. 159 OF 2024

(397(Cr.PC) / 438(BNSS))

BETWEEN:

1.
SRI MOHAMMAD RAFI
S/O LATE A SHAMEER
AGED ABOUT 40 YEARS
KSRTC BUS CONDUCTOR
R/AT SIDDARA HALLI
DUGLAPURA VILLAGE AND POST
KASABA HOBLI, TARIKERE TALUK
CHIKKAMAGALURU DISTRICT-577547
…PETITIONER
(BY SRI.NATARAJU.T, ADVOCATE FOR









SRI. KALLEGOWDA S K.,ADVOCATE)

AND:

1. SRI SURESH
S/O S HALAPPA
AGED ABOUT 54 YEARS
AGRICULTURIST
DUGLAPURA VILLAGE AND POST
KASABA HOBLI, TARIKERE TALUK
CHIKKAMAGALURU DISTRICT-577547
…RESPONDENT

(BY SRI. SRIKANTH N V.,ADVOCATE)
Digitally Signed By:
K B GEETHA

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THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 02.11.2023, PASSED BY THE
FAMILY COURT IN CRL.A.NO.225/2022 AND THE JUDGMENT
AND ORDER DATED 19.03.2022 PASSED IN C.C.NO.552/2018,
ON THE FILE OF ADDL. CIVIL JUDGE AND JMFC, TARIKERE, BY
DISMISSING THE COMPLAINT OF THE COMPLAINANT /
RESPONDENT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE GEETHA K.B.

ORAL ORDER

1. Even though this case is at the stage of
admission, with the consent of both sides, heard
arguments on merits.

2. This is the revision petition filed by the revision
petitioner/accused under Section 397 r/w 401 of the Code
of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’), praying
for setting aside the judgment of conviction and order of
sentence dated 19.03.2022 passed in C.C.No.552/2018 on
the file of the Additional Civil Judge and JMFC, Tarikere (in
short, ‘the trial Court’), confirmed in appeal judgment
dated 02.11.2023 passed in Criminal Appeal No.225/2022
Digitally Signed By:
K B GEETHA

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on the file of the Family Court, Chikkamagaluru (in short,
‘the appellate Court’).

3. The parties would be referred with their ranks, as
they were before the trial Court, for the sake of
convenience and clarity.

4. The complainant has filed the complaint before
the Trial Court under Section 200 of the Cr.P.C., praying
for punishing the accused for the offence punishable under
Sections 138 and 142 of the Negotiable Instruments Act,
1881 (in short 'NI Act').

5. The case of the complainant in nutshell is that
the accused for his financial assistance, approached the
complainant in the month of November-2017; as per his
request, the complainant paid a sum of ` 2,00,000/- to the
accused on 28.11.2017 at Dugalpura village, Tarikere
taluk; the accused assured the complainant that he would
return the money within six (6) months and issued post-
dated cheque bearing No.946688 dated 29.05.2018 drawn
on State Bank of Mysore, Tarikere Branch towards the
Digitally Signed By:
K B GEETHA

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discharge of the said loan. The complainant has presented
the said cheque for encashment and it was returned with
endorsement 'funds insufficient' dated 05.06.2018. Then,
the complainant has issued legal notice dated 18.06.2018
to the accused, which was served upon him on
26.06.2018. However, he has neither given reply and nor
repaid the cheque amount. Hence, the complaint was filed
on 18.07.2018.

6. After recording sworn statement of the
complainant, the trial Court has registered the case
against the accused, issued summons to him. After his
appearance, the accused pleaded not guilty of the offence,
when the accusation leveled against him is read over and
explained to him. Thereafter, the statement of the accused
under Section 313 of Cr.P.C., was recorded. Then the
complainant was cross-examined and the accused
examined totally five (5) witnesses including him.
Amongst them, DW.3 has not faced the cross-
examination.
Digitally Signed By:
K B GEETHA

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7. After hearing arguments, the trial Court came to
the conclusion that the accused has committed the offence
punishable under Section 138 of NI Act, convicted him and
sentenced to pay fine of ` 2,91,200/- out of which
` 10,000/- shall be towards expenses of the State and
remaining fine amount shall be payable to the complainant
as compensation.

8. Aggrieved by the said judgment of conviction,
the accused has filed the appeal before the appellate
Court, which was dismissed after hearing arguments of
both sides by confirming the judgment of conviction and
order of sentence of the trial Court.

9. Aggrieved by the same, the complainant is
before this Court.

10. Heard arguments of both sides.

11. The learned counsel-Sri Nataraju.T appearing for
Sri Kallegowda.S.K for the revision petitioner would submit
that the transaction between the complainant and the
accused is not the loan transaction as alleged in the
Digitally Signed By:
K B GEETHA

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complaint. The accused and the complainant are the
subscribers of the chit transaction. At the commencement
of the chit transaction, the signed blank cheque was given
as security, which was misused by the complainant and
filed the false case. To substantiate that there is a chit
transaction between the complainant and the accused;
accused let in oral evidence and also examined four
witnesses. Hence, the accused has rebutted the
presumption available in favour of the complainant. The
complainant has not produced any evidence to show that
`
he possessed 2,00,000/- at the time of lending to the
accused. Furthermore, the alleged transaction was cash
transaction which is contrary to law. Ex.D.1 and evidence
of DWs.1, 2, 4 and 5 establish that the chit transaction
between the complainant and the accused. This was not
believed by the trial Court as well as appellate Court and
thus, there is wrong appreciation of the evidence. Hence,
prayed for allowing the revision petition.
Digitally Signed By:
K B GEETHA

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12. The learned counsel for the respondent-Sri
Srikanth N.V would submit that the transaction between
the complainant and the accused is only the loan
transaction as alleged in the complaint. The accused and
his witnesses failed to rebut the presumption available in
favour of the complainant. Ex.D.1-notebook would not
establish that the chit transaction and it does not bear
signature of any one and it will not clarify any point as
alleged by the accused. Furthermore, the accused has not
produced any material to show that how he got said book
to produce before the trial Court. The trial Court and the
appellate Court have rightly not believed Ex.D.1 and no
other material is produced to substantiate the contention
of the accused. The accused has admitted his signature on
the subject cheque and also admitted that the same
belongs to his account. As per his cross-examination, the
cheque was in the house of one Bathulabi, but he has not
examined said Bathulabi who is related to him. Even
though the accused would say that he has given reply to
Digitally Signed By:
K B GEETHA

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legal notice, no such document is produced. Hence, the
judgment of conviction and sentence passed by the trial
Court, upheld by the appellate Court does not require
interference.

13. Having heard arguments of both sides, verifying
the revision petition papers, the trial Court and the
appellate Court records, the point that arises for
consideration is:
"Whether the revision petitioner establishes
perversity or grossly erroneousness in the
judgment of the trial Court and appellate Court
or the judgment of the trial Court and appellate
Court is glaringly unreasonable or wholly
unreliable or untenable and the judgment of
the trial Court and appellate Court considered
immaterial or irrelevant material or no material
or non-consideration of any relevant material or
judicial discretion has been exercised arbitrarily
or capriciously ?"


14. The finding of this Court on above point is in
Negative for the following:
Digitally Signed By:
K B GEETHA

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REASONS

15. The revisional jurisdiction of this Court is very
limited. In this regard, this Court places reliance on the
Judgment of the Hon’ble Apex Court in the case of
Kuntegowda v/s Thurubaiah in Criminal Appeal
No.3654/2026, (Arising out of Special Leave Petition
(Criminal) No.2247 of 2024 dated 04.08.2026
reported in 2026 SCC OnLine SC 1485 . In the aforesaid
judgment, the Hon'ble Apex Court at paragraph Nos.7.1.
to 7.3 has discussed the revisional jurisdiction of this
Court, which reads as follows:
"7.1 This Court, in the State of Maharashtra
vs. Jagmohan Singh Kuldip Singh Anand, (2004) 7
SCC 659 observed that the High Court, in exercise
of its revisional jurisdiction, cannot embark upon an
in-depth roving re-examination of the oral evidence
and medical evidence and come to a conclusion
contrary to the consistent one reached by two
courts below. In the facts of the present case, in
the impugned judgment, the High Court gravely
erred in upsetting the concurrent findings of
conviction of the trial court and the Appellate Court
Digitally Signed By:
K B GEETHA

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by substituting its own conclusions and reasoning
on the merits of the case and thereby erred in
setting aside the well-reasoned and correct
judgement and orders of the trial and appellate
courts.
7.2 Upon perusal of the impugned judgment
and order dated 06.10.2023, it is apparent that the
High Court went into great detail into each of the
testimonies, documents and merits of the case
which could have been avoided especially when the
subject matter had come under its revisional
jurisdiction. Instead, acting as an appellate Court,
the High Court deemed it fit to go into the merits of
the case, something which is generally
impermissible unless a glaring contradiction is
apparent on the face of record. In State of Kerala
vs. Puttumana Illath Jathavedan Namboodiri,
(1999) 2 SCC 452, while considering the scope of
the revisional jurisdiction of the High Court this
Court has laid down the following:
"5.... In its revisional jurisdiction, the High
Court can call for and examine the record of
any proceedings for the purpose of satisfying
itself as to the correctness, legality or
propriety of any finding, sentence or order. In
other words, the jurisdiction is one of
supervisory jurisdiction exercised by the High
Digitally Signed By:
K B GEETHA

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Court for correcting miscarriage of justice. But
the said revisional power cannot be equated
with the power of an appellate court nor can it
be treated even as a second appellate
jurisdiction. Ordinarily, therefore, it would not
be appropriate for the High Court to
reappreciate the evidence and come to its own
conclusion on the same when the evidence has
already been appreciated by the Magistrate as
well as the Sessions Judge in appeal, unless
any glaring feature is brought to the notice of
the High Court which would otherwise
tantamount to gross miscarriage of justice. On
scrutinizing the impugned judgment of the
High Court from the aforesaid standpoint, we
have no hesitation to come to the conclusion
that the High Court exceeded its jurisdiction in
interfering with the conviction of the
Respondent by reappreciating the oral
evidence...."
7.3. The contours for exercise of revisional
jurisdiction has been well settled by the judicial dicta
of this Court wherein time and again it has been
observed that the High Court shall not interfere with
the orders of the lower court unless:
i. The order or finding of the lower court is
perverse, grossly erroneous, glaringly
Digitally Signed By:
K B GEETHA

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unreasonable or wholly unreliable or untenable
in law.
ii. The lower court has passed the impugned
order after considering an immaterial or
irrelevant material or no material at all.
iii. There is a non-consideration of any relevant
material or the judicial discretion has been
exercised arbitrarily or capriciously."


16. Thus, only if the judgment of the trial Court
confirmed by appellate Court is perverse or grossly
erroneous, or grossly unreasonable, or wholly unreliable,
or wholly untenable, or the trial Court considered an
immaterial or irrelevant, material or no material or not at
all relevant material or judicial discretion has been
exercised arbitrarily and capriciously, the revisional Court
can interfere with such judgment.

17. The alleged offence in this case is the offence
under Section 138 of NI Act; to attract the offence under
Section 138 of NI Act, the complainant has to satisfy the
following ingredients:

Digitally Signed By:
K B GEETHA

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(i) that there is legally enforceable debt;
(ii) that the cheque was drawn from the
account of bank for the discharge in whole or in part
of any debt or other liability;
(iii) that the cheque has been presented to the
bank within a period of six months from the date on
which it is drawn or within the period of its validity,
whichever is earlier;
(iv) that cheque so issued has been returned
due to insufficiency of funds;
(v) the payee or the holder in due course of the
cheque makes a demand for the payment of the said
amount of money by giving a notice in writing to the
drawer of the cheque, within 15 days of the receipt
of information by him from the bank regarding the
return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make
payment of the said amount of money to the payee
or the holder in due course of the cheque within 15
days of the receipt of the said notice.


18. If the aforementioned ingredients are satisfied,
then there shall be a presumption under section 139 of the
N.I. Act. Always, the cheque is a bill of exchange and thus
Digitally Signed By:
K B GEETHA

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there shall be a presumption under Section 118 of the NI
Act. There is also statutory presumption under Section 139
of NI Act that there exists legally recoverable debt and the
cheque is issued for recovery of legally recoverable debt
either wholly or in part. But the presumptions available
under Section 118 and 139 of the NI Act are rebuttable
presumptions.


19. With this background, the facts of the present
case are to be analysed and to verify whether the trial
Court and the appellate Court have not examined the
records produced by either party or erroneously
appreciated the evidence.


20. The case of the complainant is that the accused
has approached him for financial assistance of ` 2,00,000/-
in first week of November-2017 and he lent ` 2,00,000/- to
the accused on 28.11.2017. At that time the accused has
issued a post-dated cheque dated 29.05.2018 i.e. the
subject cheque agreeing to repay the loan amount within
six (6) months. When the said cheque was presented for
Digitally Signed By:
K B GEETHA

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encashment, it was returned with endorsement 'funds
insufficient' dated 05.06.2018. Then, the complainant has
issued legal notice dated 18.06.2018, which was served on
the accused on 26.06.2018 and the complaint is filed on
18.07.2018. The accused has not disputed his signature
and cheque issued from his bank account.

21. When the above facts are established by the
complainant, the ingredients of clause No.(iii) to (vi) of
Section 138 of NI Act were fulfilled by the complainant.

22. When once the complainant able to establish this
clause No.(iii) to (vi) then, automatically the statutory
presumption under Section 139 of NI Act would be
attracted in favour of the complainant that, there exists a
legally enforceable debt and the cheque is issued for the
discharge in whole or in part of debt or any other liability.

23. The accused can rebut the presumption either by
giving reply to the notice or by cross-examining the
complainant or by leading his evidence or by all the above
three modes.
Digitally Signed By:
K B GEETHA

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24. In the instant case, even though the accused
contended that he has given reply to the notice, no such
document is produced. Hence, as it is, he has not given
any reply to the legal notice.

25. In the cross-examination to the complainant, the
accused has taken specific defence that the complainant is
having landed properties and planted Areca nut plants and
he is having Areca nut business with Mandi merchants. At
that cross-examination, the complainant deposed that he
had the amount by selling the Areca nut and thus, the said
amount was given to the accused. This fact is not
specifically denied by the accused while cross-examining
the complainant. The other suggestions put to the
complainant are regarding the chit transaction that has
been taken place between the complainant, accused and
other chit members and in that transaction, the accused
has taken two chits out of which, he has to repay totally
` 14,000/- because the chit transaction came to an end
and he ought to pay only ` 14,000/- but the cheque in
Digitally Signed By:
K B GEETHA

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question was given as security at the time of
commencement of the chit transaction and it was misused
and the present case is filed. When the complainant was
cross-examined on these points, the complainant denied
all the aforesaid suggestions. He has also denied that the
chit transaction would be written in a notebook.

26. The accused has taken specific defence of chit
transaction. In this regard, he has stated the aforesaid
facts in his evidence and to substantiate it, he examined
DWs.2, 4 and 5. DW.3 has not faced the cross-
examination. Hence, no evidentiary value could be
attached to her evidence.

27. DWs.1, 2, 4 and 5 have stated in their affidavits
evidence regarding the chit transaction, members of the
chit transaction and the note book as per Ex.D.1.

28. On careful perusal of Ex.D.1, it does not bear the
correct date, month or year in an appropriate manner and
it is not signed by anyone, only some writings are made in
the starting pages and also in last few pages. However,
Digitally Signed By:
K B GEETHA

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how this book came in possession of the accused is not
explained by him. Further, the writings in note-book are
not understandable. The person who has written in the
book is not examined.

29. The accused knew the consequences of issuing a
blank signed cheque. He is a worldly wise person; working
as Conductor in KSRTC. According to his cross-
examination, the accused has given Ex.P.1 cheque to his
maternal aunt-Bathulabi; accused had received the same
from said Bathulabi and filed this complaint. Further, she
is in cordial terms with him. If that being so, he could have
examined her. But she was not examined by the accused.
even though, he contended that he has lodged the
complaint before the police, FIR was not registered and he
has not filed private complaint challenging the same.

30. According to DW.2, she has given two cheques to
the complainant. But according to DW.1, he has given the
cheque to Bathulabi. According to DW.1 & 4, the chit
transaction was being taken place in the house of
Digitally Signed By:
K B GEETHA

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Bathulabi. According to DW.1, chit was in the house of
Bathulabi and signed bank cheques were with the
complainant. But according to the accused, the cheque in
the house of Bathulabi was stolen by the complainant and
misused. Thus, there are discrepancies amongst the
evidence of DWs.1, 2, 4 and 5 regarding these aspects.
There is no specific defence that in whose house the
transaction was being taken place and who was in custody
of cheque and how the subject cheque came in possession
of the complainant. Hence, considering these aspects, the
trial Court and the appellate Court by leading evidence and
by Ex.D.1, the accused failed to prove that he has given
the subject cheque as security towards chit transaction.

31. Another contention taken by the accused is that
he is a Government employee getting a good salary and
he is possessing more than 12 acres and odd land and
thus, there was no occasion for him to obtain loan from
the complainant. However, in the cross-examination, DW.1
categorically deposed that he has obtained loan on the
Digitally Signed By:
K B GEETHA

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lands mentioned in Ex.D.2. Not only the accused, his
brothers are also having share in the property. While
cross-examining the complainant, there is clear admission
that the complainant is having 8 acres Areca nut
plantation and he is getting good income. Even the
accused is financially sound is admitted by the
complainant. However, these admissions would not rebut
the presumptions available in favour of the complainant
available under Sections 118 and 139 of the NI Act.

32. When there is presumption that there exists
legally recoverable debt and the cheque in question is
issued towards whole or part of discharge of the debt or
liability and when it is not rebutted, the complainant need
not produce any other document to substantiate his
contention.

33. Considering these aspects, rightly the trial Court
convicted the accused which is confirmed in the appellate
Court. Thus, the judgment of trial Court and appellate
Digitally Signed By:
K B GEETHA

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Court are not erroneous and in accordance with law and
thus, requires no interference in this revisional jurisdiction.

34. Hence, this Court passes the following:
ORDER
The criminal revision petition is dismissed.
Digitally Signed By:

K B GEETHA
(GEETHA K.B.)
JUDGE







SPV
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