MR ASHRAF vs MR MOHAMMED ALTHAF

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 12 DAY OF OCTOBER, 2026


BEFORE

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

CRIMINAL REVISION PETITION NO. 195 OF 2024

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

BETWEEN:

1. MR ASHRAF
S/O ISMAIL,
NOW AGED ABOUT 41 YEARS,
KELTHAGE HOUSE, KANYADI VILLAGE,
BELTHANGADY TALUK,
DAKSHINA KANNADA - 574 214.
…PETITIONER
(BY SRI.RAGHAVENDRA.K, ADVOCATE FOR







SRI. VIDYASAGAR R.,ADVOCATE)

AND:

1. MR MOHAMMED ALTHAF
S/O K ABDUL RAZZAK,
AGED ABOUT 45 YEARS,
RESIDING AT UMAIY GARDEN,
VANAMALIDAS COMPOUND, BR KARKERA ROAD,
PANDESHWAR, MANGALORE,
DAKSHINA KANNADA - 575001.
…RESPONDENT
(BY SMT.DIKSHA PHIRWANI, ADVOCATE FOR



SRI. SHAHBAAZ HUSAIN, ADVOCATE)

THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO 1.SET ASIDE
JUDGMENT DATED 27.11.2023 PASSED BY THE LD.VI
ADDL.DISTRICT AND SESSIONS JUDGE D.K., MANGALURU IN
Digitally Signed By:
K B GEETHA

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CRL.A.NO.190/2022 AND THE JUDGMENT DATED 23.09.2022
IN C.C.NO.839/2016 PASSED BY THE J.M.F.C (V COURT)
MANGALURU D.K. BY ALLOWING THIS RP AND ETC.,
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. This is the revision petition filed under Section
397 r/w 401 of the Code of Criminal Procedure, 1973 (in
short 'the Cr.P.C.,') by the revision petitioner/accused
praying for setting aside the judgment of conviction and
order of sentence dated 23.09.2022 in CC No.839/2016 on
the file of JMFC, V Court, Mangaluru, Dakshina Kannada
(in short 'the trial Court') and judgment in Criminal Appeal
No.190/2022 dated 27.11.2023 on the file of VI Addl.
District and Sessions Judge, Dakshina kanada, Mangaluru
(in short, 'appellate Court') and to acquit the accused.

Digitally Signed By:
K B GEETHA

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


3. It is the case of the complainant before the trial
Court while filing private complaint under Section 200 of
Cr.P.C., is that the accused is doing business of importing
cashew nuts and he was introduced to the complainant by
his cousin one Mr. Mohammed Sadiq. The accused has put
up a proposal with the complainant regarding importing
business. The complainant did not find that the business
would be profitable. Hence, he has not accepted the
proposal of the accused. Initially, he refused to lend
money to the accused but because of constant persuasion
by the accused, the complainant has lent ` 8,00,000/- to
the accused on 08.02.2016 in cash. The accused handed
over the cheque of ` 8,00,000/- to the complainant to be
presented after a month. The accused repaid ` 5,00,000/-
on 22.02.2016 and replaced the said cheque by the
Digitally Signed By:
K B GEETHA

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subject cheque dated 28.03.2016 for a sum of
` 3,00,000/-. The said cheque was presented for
encashment in May-2016, which was returned with an
endorsement dated 17.05.2016 'insufficient funds'. Then
on 19.05.2016, the complainant got issued statutory
notice to the accused through his counsel. Said notice was
served on the accused. However, the accused has not
repaid the cheque amount. Hence, the complaint is filed
on 04.07.2016. Thus, he prayed for taking suitable action
against the accused.


4. After recording the sworn statement of the
complainant, summons was issued to the accused. After
appearance of the accused, he pleaded not guilty of the
offence punishable under Section 138 of NI Act when the
accusation levelled against him was read over and
explained to him. The complainant was cross-examined by
the learned counsel for the accused. Then, the accused
has denied the case of complainant in toto in the
statement recorded under Section 313 Cr.P.C. The
Digitally Signed By:
K B GEETHA

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accused has not let in defence evidence even after giving
sufficient opportunities.


5. After hearing arguments, the trial Court came to
the conclusion that the accused has committed the offence
punishable under Section 138 of NI Act and convicted him
and sentenced to pay fine of ` 4,33,000/- as fine; out of
which ` 4,30,000/- shall be payable to the complainant and
` 3,000/- shall be payable towards the State expenses.


6. Aggrieved by the same, the accused has
preferred the appeal before the appellate Court, which was
dismissed by confirming the judgment of conviction and
order of sentence.


7. Aggrieved by the same, revision petitioner is
before this Court.


8. Heard arguments of both sides.


9. Learned counsel for the revision petitioner
Sri Raghavendra K. would submit that even though there
Digitally Signed By:
K B GEETHA

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is concurrent finding of the trial Court and the appellate
Court, they have not examined the fact that even before
the complainant presenting the cheque, accused has
issued legal notice to the complainant dated 02.05.2016
narrating the incident that has taken place between him
and the complainant. Further, the complainant at one
stage says that he knows the accused since 10 years and
at another stage, he would depose that the accused was
introduced to him through his cousin Mohd. Sadiq.
Further, in the complaint, it is stated that the accused was
introduced by his cousin in the year 2015 but in the
evidence he deposes that he knows the accused since 10
years. Thus, there is discrepancy in between the evidence
and the contention of the complainant. These
discrepancies were not examined by the trial Court and
the appellate Court. Hence, the presumptions in favour of
the complainant are rebutted by the accused. The cheque
in question is a self-cheque and the complainant is not
payee of this cheque and it is not signed by the
Digitally Signed By:
K B GEETHA

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complainant on its back side. Hence as per Section 9 of
the NI Act, the complainant cannot be called as holder in
due course. Hence, prayed for allowing the revision
petition.


10. The learned counsel for the respondent No.1-
Sri Shahabaz Hussain would submit that the subject
cheque is signed by the accused on both sides and even
the complainant has put his signature on its back side.
Furthermore, the alleged issuance of notice dated
02.05.2016 is not established by the accused. The accused
admitted his signature on the cheque, admitted about
receipt of the legal notice but has not given any reply to it
and has not let in defence evidence and thus, not rebutted
the presumption under Section 139 of NI Act. Hence,
prayed for dismissal of the revision petition by confirming
the judgment of conviction and order of sentence passed
by the trial Court which is confirmed by the appellate
Court.

Digitally Signed By:
K B GEETHA

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11. 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 petitioners establish
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 ?"


12. The finding of this Court on above point is in
Negative for the following:
REASONS

13. 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
Digitally Signed By:
K B GEETHA

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1
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. 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
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.

1
2026 SCC OnLine SC 1485
Digitally Signed By:
K B GEETHA

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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
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
Digitally Signed By:
K B GEETHA

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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
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.
Digitally Signed By:
K B GEETHA

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iii. There is a non-consideration of any
relevant material or the judicial discretion
has been exercised arbitrarily or
capriciously."


14. 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.


15. 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:
(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;
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K B GEETHA

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(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.


16. 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
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
Digitally Signed By:
K B GEETHA

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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.


17. 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.


18. The case of the complainant is that the accused
has issued the self-cheque to the complainant dated
28.03.2016 and when it was presented for encashment on
17.05.2016, it was returned dishonoured with
endorsement, 'insufficient funds'. Then the accused has
issued legal notice dated 18.05.2016 issued on
19.05.2016 as per Ex.P.6, it was served on 24.05.2016.
However, there is no document to show that the accused
has given reply to it.
Digitally Signed By:
K B GEETHA

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19. The learned counsel for the accused has
produced six documents with memo dated 06.04.2022
before the trial Court wherein he contended that he has
issued the notice dated 02.05.2016 i.e., much earlier to
presentation of the cheque and other contentions.
However, all the documents produced along with this
memo dated 06.04.2022 were Xerox copies and they were
not confronted to the complainant and not exhibited or
marked either by confronting to the complainant or by
leading defence evidence by the accused. All these are
Xerox copies. Hence, no importance could be attached to
those documents. Hence, the said contention of the
accused cannot be considered. The only legal point that is
raised in this revision petition by the accused is that as per
Section 9 of the NI Act, the complainant cannot be called
as 'holder in due course'.



20. Section 9 of the NI Act defines who is 'holder in
due course'. It reads as follows:

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K B GEETHA

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"9. Holder in due course. - "Holder in due course"
means any person who for consideration became the
possessor of a promissory note, bill of exchange or
cheque if payable to bearer, or the payee or
indorsee thereof, if [payable to order], before the
amount mentioned in it became payable, and
without having sufficient cause to believe that any
defect existed in the title of the person from whom
he derived his title."


21. If a person is payee or holder in due course of
the cheque, then he can file the complaint alleging the
offence under Section 138 of the NI Act.


22. It is the specific contention of the complainant
that he became possessor of the subject cheque for
consideration.


23. On perusal of Ex.P.1, it is noticed that it is the
self-cheque and in both pages, the accused has put his
signature to this cheque which is not in dispute. Below the
signature of the accused on its backside, the complainant
has put his signature which is not challenged. Hence, it
Digitally Signed By:
K B GEETHA

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cannot be said that the complainant is not 'holder in due
course' or not payee of the cheque. Even though the
cheque is a self-cheque, if it is given to the complainant
towards repayment of debt or liability then, it will be a
cheque and presumption under Section 118 and 139 would
come into force. Accordingly, it is established that the
subject cheque was issued for consideration and there
existed legally recoverable debt and accused has issued
the cheque towards discharge of whole or part of the
liability.


24. With this background, the cross-examination of
PW.1 is to be looked into to say, whether the
presumptions in favour of the complainant were rebutted
by the accused or not?


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

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26. In this case, as discussed above, the accused has
not produced any material to show that he has given reply
to the legal notice and he has not let in defence evidence.
Thus, only the cross-examination of the complainant by
the accused is to be looked into to say whether the
accused has rebutted the presumption in favour of the
complainant.


27. In the instant case, initially in the cross-
examination dated 10.03.2021, the complainant has
deposed that he knows the accused since 10 years and
doing business in cashew nut with the accused since 10
years; he had lent ` 8,00,000/- to the accused, out of
which the accused has repaid ` 5,00,000/- and for the
remaining amount, he has issued the present cheque.


28. In the further cross-examination, he has deposed
that he cannot say since how many years he knows the
Digitally Signed By:
K B GEETHA

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accused. This is not a material discrepancy as argued by
learned counsel for the revision petitioner.


29. The specific case of the complainant is that he
has not done any business with the accused except the
present transaction of lending ` 8,00,000/- to the accused.
He has taken said contention even in his complaint. The
accused has not produced any agreement between him
and the complainant and not produced any document to
substantiate his defence while cross-examining the
complainant; only as per the say of the complainant the
accused has invested ` 12,30,000/- in Ghana country of
African Continent, and in that regard he has totally spent
` 43,05,000/- and these facts were denied by the
complainant in his cross-examination. Except this cross-
examination, no evidence is produced by the accused as
discussed above. Hence, there is no rebuttal of Section
139 of NI Act by the accused, which is properly
Digitally Signed By:
K B GEETHA

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appreciated by the trial Court and the appellate Court and
thus, requires no interference.


30. Hence, this Court passes the following:
ORDER
Revision petition is dismissed .

Digitally Signed By:
K B GEETHA

(GEETHA K.B.)
JUDGE



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