MUJEEB A SHARIEFF v. AJAY AGARWAL

18. Learned Judge in the First Appellate Court after securing the records heard the arguments of the parties in detail and by considered judgment dated 23.10.2025 dismissed the appeal of the accused.

19. Being further aggrieved by the same, accused is before this Court in this revision on the following grounds:  “The Impugned Order is opposed to Law, Facts, and Evidence on Record. The learned Sessions Judge has failed to appreciate that the conviction recorded by the trial court was a result of non- representation of the Petitioner by his counsel on - 7 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR material dates. The appellate court ought to have remanded the matter for fresh consideration rather itself conducting cross-examination and recording defence evidence.  The trial court proceeded to make the order due to the absence of the defence counsel on material dates. The complainant was not cross examined by the defence counsel..  The prayer of the petitioner before the appellate court was specific and the first appellate court erred in recording entire Evidence at the Appellate Stage. The first appellate court exceeded in exercising the power under section 391 of crpc.  The appellate court gravely erred in assuming the role of the trial court by recording entire evidence. Such a procedure is impermissible and contrary to the settled position of law that an appellate court should either reconsider evidence already adduced or order remand, but cannot convert itself into a court of original jurisdiction except within the limited scope of Section 391 Cr.P.C. for additional evidence only.  Non-appreciation of Material facts The appellate court ignored the admitted fact that Respondent already received Rs.83,00,000/-, which materially alters complexion alleged liability. The complainant's version that the cheque was issued as a "penalty" is inherently improbable and against - 8 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR the very object of Section 138 of the N.I. Act, which relates only to legally enforceable debt or liability.  Absence of Legally Enforceable Debt Once the Respondent admittedly received a substantial portion of the amount, the question of issuing a cheque for Rs.1,00, and 00,000/- as penalty does not arise. The alleged cheque was not issued for discharge of any existing liability and does not constitute a legally enforceable debt within the meaning of Explanation to Section 138 of the N.I. Act.  The appellate court failed to consider the inherent contradictions surrounding the issuance of the disputed cheque. The Respondent's interest in the entity M/s. G M Handicrafts clearly demonstrates the Respondent was aware of encumbrances on the property and cannot attribute default the vendor under agreement of sale.  The impugned order results in a gross miscarriage of justice, as the Petitioner has been convicted without full and fair adjudication. The appellate court has mechanically confirmed the conviction without proper evaluation of the evidence.  The court below has erred to note that the agreement of sale dated 2-3-2016 does not provide for penalty for non-performance of the agreement. The respondent has admitted there is - 9 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR no written agreement between the parties for payment of penalty.  The present case falls squarely within the ambit of revisional interference, as the impugned order suffers infirmities, procedural impropriety, and perversity warranting interference under Sections 397 & 401 Cr.P.C.”

20. Sri Ramdas, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition would contend that there is a defect in the legal notice issued by the complainant calling upon the accused to pay the money inasmuch as, in the notice, sum of Rs.2,00,00,000/- is demanded as against the cheque amount of Rs.1,00,00,000/-. Therefore, the very initiation of the criminal proceedings itself is incorrect as it is not in compliance with Section 138(b) of the Negotiable Instruments Act and thus, sought for allowing the revision petition.

21. He would further contend that there were several payments made by the accused to the tune of Rs.91,10,000/- and the same has not been accounted and cheque got to be filled up in a sum of Rs.1,00,00,000/-. Therefore, there was no - 10 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR liability covered under the cheque and thus sought for allowing the revision petition.

22. He would further contend that in every case there is no need for the accused to lead defence evidence, if by cross- examining the prosecution witness itself, the presumption available to the complainant can be rebutted as is held by the Hon'ble Apex Court in the case of Rohitbhai Jivanlal Patel vs. State of Gujarat and another reported in (2019)18 SCC

23. Sri Ramdas, would also contend that, the answers elicited in the cross- examination is sufficient enough to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act which has been ignored by both the Courts resulting in miscarriage of justice and thus sought for allowing the revision petition.

24. Per contra, Sri Deepak, learned counsel respondent/complainant supports the impugned judgments.

25. He would further contend that the payments made by the accused earlier to the passing of the cheque has been taken - 11 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR note of and it has got nothing to do in respect of the dishonored cheque marked vide Exhibit P-1.

26. According to him, those transactions referred to by learned counsel for petitioner are different transactions and to establish that the amounts paid on several dates to the tune of Rs.91,10,000/- as is placed before this Court for the first time is for the different transactions and the same is not placed before the Trial Magistrate nor the same was confronted to PW- 1 before the Trial Court. Therefore, the said defence cannot be countenanced in law, that too, for the first time before the Revisional Court and thus, sought for dismissal of the revision petition.

27. He would further contend the demand of Rs.1,00,00,000/- as penalty has got nothing to do appreciating the notice issued on behalf of the complainant under Section 138(b) of the Negotiable Instruments Act and therefore, same would not vitiate the trial and the conviction order and sought for dismissal of the revision petition. - 12 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR

28. Having heard the arguments of both sides, this Court perused the material on record meticulously.

29. On such perusal of the material on record, it is crystal clear that there is no dispute that Exhibit P-1 is the cheque belonging to the accused. The signature found therein is that the accused. The cheque is dishonoured with an endorsement ‘payment stopped by the drawer’.

30. It is settled principles of law and requires no emphasis that, if the cheque is dishonoured with an endorsement ‘payment stopped by the drawer’, it is necessary on the part of the accused to place before the Court material evidence to the effect that sufficient balance was kept in the account of the accused and ‘stop payment’ instructions is for the valid reason.

31. In the case on hand, on what ground the accused has instructed for ‘stop payment’ is not forthcoming on record. While recording the accused's statement for question No.10 of the statement recorded under Section 313 of the code of Criminal Procedure, accused has specifically stated that he has got evidence to lead. - 13 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR

32. But for the reasons best known to the accused, he has not chosen to place any material evidence on record.

33. The trial has commenced in the year 2018. P.W.1 was cross-examined at length on 13.11.2019 and on 14.12.2022. Before conducting such cross-examination, no application under Section 142 of the Negotiable Instruments Act was filed on behalf of the accused. This is in utter violation of the directions issued by the Hon'ble Apex Court in the case of Indian Bank Association and others vs. Union of India and others reported in (2014)5 SCC 590. There is no plea of defence either placed before the Court by the accused.

34. Further, there cannot be any dispute with regard to the principles of law enunciated by the Hon'ble Apex Court in the case of Rohitbhai supra.

35. In the case on hand, in the cross-examination of P.W.1, no valid answers are elicited so as to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act. - 14 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR

36. As per the directions issued in the case of Indian Bank Association supra, the trial should have commenced from the leading of defence evidence. But the accused has failed to lead any defence evidence though he has specifically answered for question No.10 while recording the accused's statement that he would lead the defence evidence. Why the accused failed to lead any defence evidence or mark any documentary evidence on record is a question that remains unanswered.

37. There is a valid reason to oppose the submissions made on behalf of the revision petitioner that there was discharge of the amount of Rs.91,10,000/- on different dates as per the memo and photocopy of the bank statement, extract of the bank statement that is placed on record, on behalf of the accused.

38. Assuming that there is repayment, it should have been at least spelt out while cross-examining PW-1. The suggestions made to PW-1 before the Trial Magistrate and with permission before the First Appellate Court with regard to the payments which are made earlier to the date of cheque which is also - 15 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR found from Exhibits D-2 and D-3 which are the bank extracts have been placed before the Court along with the memo.

39. As could be seen from the extract which is found in Exhibits D-2 and D-3, the payments that is made to the complainant are all of the year 2016 whereas the cheque in question in the case on hand marked at Exhibit P-1 is dated

15.01.2018.

40. Admittedly, accused has accepted that Ex.P-1 is his cheque and signature found therein is that of the accused.

41. Pertinently, there is no reply to the notice issued by the accused before initiating the proceedings.

42. Assuming that there is a mistake with regard to the demand made inasmuch as a penalty of Rs.1,00,00,000/- is also sought for along with the cheque amount in the legal notice, same would not vitiate the criminal proceedings inasmuch as, if Rs.1,00,00,000/- was due by the accused, that could have been paid. - 16 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR

43. Purpose of issuance of notice under Section 138 of the Negotiable Instruments Act is to provide an opportunity of fifteen days for the honest and bonafide drawer to make good the amount covered under the cheque.

44. Further before the First Appellate Court accused got examined as DW-1. In his cross-examination accused having accepted Exhibit P-1, stated that the writings in Exhibit P-1 are not in his handwriting. He also admits that there is no written instructions to the banker for ‘stop payment’.

45. He further admits that there was no intimation in writing to the complainant about the ‘stop payment’. He has specifically answered that complainant along with 40 to 50 persons armed with deadly weapons came to his house after jumping the compound and forcibly extracted the signed cheque.

46. Pertinently, no criminal action has been taken against the complainant in this regard. Accused has stated that he approached the police, but police have stated that it is a matter of civil nature. - 17 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR

47. Nothing prevented the accused to lodge a private complaint before the very same Magistrate, if the police did not take any action about the forcible snatching of the cheque.

48. Accused admits that the address mentioned in the acknowledgment namely No.92, 6th Cross, Dollars’ Colony, BTM-II Stage, Bengaluru-76 is his address and his daughter's name is Sara. He has conveniently given evasive answer as to non-issue of the reply. He also stated that he has informed the complainant that he has paid Rs.83,26,000/- and therefore he is not liable to pay any amount, orally.

49. Thus, from the material evidence placed before the Trial Magistrate and on permission placed before the First Appellate Court as additional evidence in cross-examining PW-1 and examining the accused as DW-1 and placing Exhibit D-1 to D-5 is not sufficient to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act is the finding recorded by the learned Judge in the First Appellate Court. - 18 - NC: 2026:KHC:20344 CRL.RP No. 1800 of 2025 HC-KAR

50. Even after considering the additional evidence that was permitted to be placed before the First Appellate Court, owing to the fact that there was an allegation that the counsel for accused has not taken active interest in conducting the litigation, order sheet discloses that on 63 hearing dates, accused has remained absent which he denies in the cross- examination, which is up against the records of the Court.

51. Therefore, no value can be attached to accused’s testimony which is nothing but self serving testimony.

52. Taking note of these aspects of the matter, having regard to the limited revisional jurisdiction this Court does not find any ground whatsoever, much less, good grounds to interfere with the well reasoned orders passed by both the Courts.

53. Accordingly, the following: ORDER Revision petition is meritless and is hereby dismissed. SD/- (V SRISHANANDA) JUDGE List No.: 2 Sl No.: 45