- 1 - CRL.RP No. 251 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF SEPTEMBER, 2026 BEFORE THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL REVISION PETITION NO. 251 OF 2022 (397(Cr.PC) / 438(BNSS)) BETWEEN: B N RAMESH SON OF KRISHNAPPA B.N AGED ABOUT 62 YEARS RECOVERY SECTION KARNATAKA BANK LIMITED H.O. COMPLEX BRANCH MANGALURU - 575 001. …PETITIONER (BY SRI. UMESH MOOLIMANI, ADVOCATE FOR SRI. S.V.PRAKASH, ADVOCATE) AND: CHANDRASHEKHAR N S/O S. NARASIMHAMURTHY AGED ABOUT 37 YEARS BALAJI WINES R/O SEEBINAKERE THIRTHAHALLI TOWN-577432 SHIVAMOGGA DISTRICT. …RESPONDENT (BY SRI. YOGESH K., ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 08.11.2021 PASSED BY THE COURT OF THE LEARNED II ADDL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA IN CRL.A.NO.80/2015 CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION DATED 25.02.2015 PASSED BY THE COURT OF THE LEARNED PRL. CIVIL JUDGE AND JMFC, THIRTHAHALLI IN C.C.NO.1072/2006 CONVICTING AND SENTENCING THE PETITIONER TO UNDERGO S.I FOR 3 MONTHS AND PAY FINE Digitally signed by NAGARATHNA M Location: High Court of Karnataka - 2 - CRL.RP No. 251 of 2022 OF RS.4,35,000/- AND IN DEFAULT TO PAY FINE AMOUNT TO UNDERGO S.I FOR A PERIOD OF 1 MONTH FOR THE OFFENCE P/U/S 138 OF N.I ACT. THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 12.08.2026, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE VENKATESH NAIK T CAV ORDER Heard Sri Umesh Moolimani, learned counsel appearing for Sri S.V.Prakash, learned counsel for the petitioner, and Sri Yogesh K., learned counsel for the respondent. 2. The petitioner-accused has preferred this criminal revision petition under Section 397 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') praying to set aside the judgment of conviction and order on sentence dated 25.02.2015 passed by the Principal Civil Judge and JMFC, Thirthahalli, which is upheld by the learned II Additional District and Sessions Judge, Shivamogga, in Criminal Appeal No.80/2015 dated 08.11.2021, wherein both the Courts passed concurrent findings against the accused and convicted the accused for the offence punishable under - 3 - CRL.RP No. 251 of 2022 Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act') and sentenced him to pay fine of Rs.4,35,000/- with default sentence and sentenced him to undergo simple imprisonment for three months. 3. For the sake of convenience, the parties herein are referred to as per their rankings before the trial Court. The petitioner is the 'accused' and the respondent is the 'complainant' before the trial Court. 4. The brief facts of the case are as under: The complainant filed a private complaint under Section 200 of the Cr.P.C. for the offence punishable under Section 138 of the N.I. Act against the accused contending that the accused borrowed Rs.4,32,000/- for his domestic purpose and in consideration thereof the accused issued a cheque bearing Nos.425611 dated 10.08.2006 for Rs.4,32,000/- drawn on Karnataka Bank, Mangalore. On presentation of the said cheque for encashment, the cheque was dishonoured for the reason 'the payment - 4 - CRL.RP No. 251 of 2022 stopped by drawer'. Therefore, on 12.09.2006, the complainant issued legal notice to the accused calling upon him to pay the amount due under the cheque. Even after receipt of the legal notice, the accused failed to pay the amount. Hence, the complainant filed private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of N.I.Act. 5. After institution of the complaint, the trial Court recorded the sworn statement of the complainant, took cognizance under Section 190(1)(a) of the Cr.P.C., secured the presence of the accused and recorded the plea of the accused, the accused pleaded not guilty and claimed to be tried. 6. The complainant, in order to prove his case, examined himself as PW1, and also examined two witnesses as PW2 and PW3 and got marked 9 documents as per Exs.P1 to P9. In order to rebut the claim of the complainant, the accused examined himself on oath as - 5 - CRL.RP No. 251 of 2022 DW1 and examined one witness Smt. Latha as DW2 and relied on 9 document as per Exs.D1 to D9. 7. On the basis of the oral and documentary evidence, the trial Court convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him to pay a fine of Rs.4,35,000/- with default sentence and also sentenced him to undergo simple imprisonment for three months. 8. Aggrieved by the judgment of conviction and order on sentence passed by the trial Court, the accused preferred an appeal in Criminal Appeal No.80/2015 before the II Additional District and Session Judge, Shivamogga and in turn, the First Appellate Court confirmed the judgment of conviction and order on sentence passed by the trial Court. 9. Aggrieved by the concurrent findings passed by the trial Court as well as the First Appellate Court, the accused has filed this revision petition. - 6 - CRL.RP No. 251 of 2022 10. Learned counsel for the petitioner-accused has contended that the judgment of conviction and order on sentence passed by the First Appellate Court and the trial Court are erroneous. He contended that the complainant failed to establish the factum of advancement amount on the alleged date and time and he has not examined the persons from whom he had borrowed the amount for the mobilization of fund. Further, as on the date of alleged advancement of loan and issuance of cheque, the accused was working at Mangaluru and the place of complainant is Thirthahalli. Further, Ex.P1 - Cheque was issued by the accused to his wife Smt. Latha (DW2), however, while she was traveling in auto rickshaw, said cheque was lost. 11. It is contended that, there is no transaction between the accused and the complainant and hence, the accused disputing issuance of cheque in favour of the complainant and as such there was no legally enforceable debt or liability in order to attract Section 138 of the N.I. Act. The complainant has not mentioned the date of advancement of the loan to the accused in the complaint - 7 - CRL.RP No. 251 of 2022 or in the legal notice and the said fact is not considered by the trial Court and the First Appellate Court. The trial Court, while imposing fine amount, directed the accused to undergo simple imprisonment for three months. In fact, the trial Court ought to have directed the accused to pay fine amount and in default of payment of fine, it ought to have impose imprisonment, but the trial Court imposed sentence independently. On all these grounds, the learned counsel prays to allow the revision petition. 12. Learned counsel for the respondent-complainant has contended that the petitioner-accused has admitted his signature in cheque-Ex.P1, however, the contents of the cheque is denied and service of legal notice on him. Therefore, the trial Court had drawn presumption under Sections 118 and 139 of the N.I. Act and rightly convicted the accused for the offence punishable under Section 138 of the N.I. Act and thus, no interference is called for in this regard. Hence, the learned counsel prays to dismiss the revision petition. - 8 - CRL.RP No. 251 of 2022 13. On the basis of the submissions made by the parties to the lis, the following point would arise for consideration of this Court: 1. Whether the petitioner-accused proved that the judgment of conviction and order on sentence passed by the trial Court and confirmed by the First Appellate Court are perverse and calls for interference by this Court? 14. Admittedly, the complainant filed a private complaint under Section 200 of the Cr.P.C. against the accused for the offence punishable under Section 138 of the N.I. Act and in order to substantiate the contention of the complainant, the complainant examined himself as PW1 and got marked 9 documents. Exs.P1 is the cheque, it bears signature of the accused and same is marked as Exs.P1(a). Ex.P2 is the Bank Endorsement, Ex.P3 is the Bank Receipt, Ex.P4 is the legal notice, Ex.P5 is the postal acknowledgment, Ex.P6 is the certificate of posting receipt, Ex.P7 is the postal receipt, Ex.P8 is the copy of - 9 - CRL.RP No. 251 of 2022 the private complaint and Ex.P9 is the statement of account. 15. Ex.P2 is the Bank Memo, which clearly indicates that on presentation of the cheque, it was returned with endorsement 'the payment stopped by the drawer'. 16. To rebut the claim of the accused, the accused examined himself as DW1. The accused stated that the signed cheque, issued to his wife, was lost during transit. However, he has admitted the signature found in Ex.P1. He also admitted that no complaint has been lodged against the complainant for misuse of the cheque. 17. On perusal of oral testimony of PW1, PW2, and contents of Exs.P1 to P9, it appears that the accused had borrowed a sum of Rs.4,32,000/- from the complainant and in consideration thereof, he issued a cheque for a sum of Rs.4,32,000/-. Hence, the complainant presented the cheque for encashment through his Banker, but the cheque was returned with endorsement 'the payment stopped by the drawer'. In spite of issuance of legal - 10 - CRL.RP No. 251 of 2022 notice, the accused failed to pay the amount. Therefore, the documents at Exs.P1 to P9 clearly establish that though accused has disputed the issuance of the cheque, contents of the cheque, but he has admitted the signature found in Ex.P1(a). Admittedly, no complaint is lodged against the complainant for misuse of cheque and no reply notice has been issued to the complainant. The accused has not disputed service of notice upon him, hence, the complainant has complied with the legal requirements of Section 138 of the N.I. Act. 18. Now, the burden shifts on the accused to disprove the case of the complainant. The fact remains that the accused never discharged the alleged loan borrowed from the complainant. On the contrary, the complainant has proved that Ex.P1-cheque was issued by the accused towards discharge of legally enforceable debt. In this regard, the accused has not placed any contra evidence to disbelieve the case of the complainant. - 11 - CRL.RP No. 251 of 2022 19. When execution of the negotiable instrument, and signature found on Ex.P1 - cheque is admitted, the Court may draw presumption under Sections 118 and 139 of the N.I. Act in favour of the holder of the negotiable instrument. 20. The Hon'ble Apex Court in the case of RAJESH JAIN v. AJAY SINGH reported in 2023 LiveLaw (SC) 866, at paragraph Nos.34 and 40 to 45, has held as under: "34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. - 12 - CRL.RP No. 251 of 2022 xxx xxx xxx 40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of ‘preponderance of probabilities’, similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)]. 41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words ‘until the contrary is proved’ occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. - 13 - CRL.RP No. 251 of 2022 Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]. 42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was ‘no debt/liability’. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513]. - 14 - CRL.RP No. 251 of 2022 43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact. 44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since - 15 - CRL.RP No. 251 of 2022 the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well. 45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441]." - 16 - CRL.RP No. 251 of 2022 21. Hence, the complainant proved that the accused borrowed loan from the complainant and in consideration thereof, he had issued Ex.P1-cheque and on presentation of the cheque, it was dishonoured and in spite of issuance of legal notice, he failed to pay the amount due under the cheque. Therefore, the trial Court based on the oral and documentary evidence on record, convicted the petitioner for the aforesaid offences and same was rightly confirmed by the First Appellate Court. 22. This Criminal Revision Petition is arising out of concurrent finding of the trial Court and First Appellate Court. The "scope of revision" refers to the limited authority of a higher Court to review judgment of the trial Court and the First Appellate Court, focusing on correcting errors in jurisdiction or gross legal/factual flaws rather than re-examining the merits of the case. This power is exercised sparingly and is intended to set right a patent defect, not to function as an automatic second appeal. The specific grounds and limitations vary between civil and criminal proceedings. Revisions can address situations - 17 - CRL.RP No. 251 of 2022 where the decision is grossly inaccurate, not supported by evidence, or where relevant evidence was ignored. The review is not a fresh trial. Courts are generally barred from re-examining evidence or substituting their own judgment for the lower Court's on matters of fact unless the findings are demonstrably perverse or arbitrary. The Hon'ble Apex Court has discussed the applicability and scope of revision in various decisions, which are highlighted hereunder: A. The Hon'ble Apex Court in the case of MUNNA DEVI v. STATE OF RAJASTHAN AND ANOTHER reported in (2001) 9 SCC 631, while discussing the scope of Section 397 of the Cr.P.C., at paragraph No.3, has held as under: "3. xxx xxx xxx. The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers - 18 - CRL.RP No. 251 of 2022 could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged." B. The Hon'ble Apex Court in the case of STATE OF TAMIL NADU v. R. SOUNDIRARASU AND OTHERS reported in (2023) 6 SCC 768, at paragraph No.79, has held as under: "79. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with the appellate power. A Revisional Court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts - 19 - CRL.RP No. 251 of 2022 as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure." C. Further, the Hon'ble Apex Court in the case of STATE OF MAHARASHTRA v. SUJAY MANGESH POYAREKAR reported in (2008) 9 SCC 475, at paragraph No.16, has held as under: "16. xxx xxx xxx. Now it is well settled that revisional jurisdiction can be exercised sparingly and only in exceptional cases. A Revisional Court cannot convert itself into a regular court of appeal." 23. Therefore, the revisional jurisdiction should normally be exercised in exceptional cases, when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently, there has been a flagrant miscarriage of justice. 24. In view of the facts, circumstances and the decision cited supra, in the instant case, the accused has - 20 - CRL.RP No. 251 of 2022 not placed any convincing evidence to rebut the claim of the complainant. In the absence of such evidence, the accused has failed to prove the non-existence of liability. 25. Thus, the trial Court as well as the First Appellate Court rightly appreciated the oral and documentary evidence and proceeded to convict the accused for the offence punishable under Section 138 of the N.I. Act. Therefore, there is no error or illegality committed by the Courts below to interfere by this Court. 26. Insofar as sentence passed by the trial Court is concerned, the trial Court directed the accused to undergo simple imprisonment for three months and also directed the accused to pay fine with default sentence. Under Section 138 of the Negotiable Instruments Act, a Court has the judicial discretion to impose only a fine (which can extend to twice the cheque amount), only imprisonment (up to two years), or both. The Hon'ble Apex Court in the case of Somnath Sarkar V/s. Utpal Basu Mallick and Another at paragraph 15 as held as under: - 21 - CRL.RP No. 251 of 2022 "15. We do not consider it necessary to examine or exhaustively enumerate situations in which courts may remain content with imposition of a fine without any sentence of imprisonment. There is considerable judicial authority for the proposition that the courts can reduce the period of imprisonment depending upon the nature of the transaction, the bona fides of the accused, the contumacy of his conduct, the period for which the prosecution goes on, the amount of the cheque involved, the social strata to which the parties belong, so on and so forth. Some of these factors may indeed make out a case where the court may impose only a sentence of fine upon the defaulting drawer of the cheque. There is for that purpose considerable discretion vested in the court concerned which can and ought to be exercised in appropriate cases for good and valid reasons. Suffice it to say that the High Court was competent on a plain reading of Section 138 to impose a sentence of fine only upon the appellant. Inasmuch as the High Court did so, it committed no jurisdictional error. In the absence of a challenge to the order passed by the High Court deleting the sentence of imprisonment awarded to the appellant, we do not consider it necessary or proper to say anything further at this stage." 27. A Court is legally permitted to sentence an accused to pay a fine alone without any substantive jail term, coupled with a default sentence (simple imprisonment if the fine remains unpaid). Courts frequently emphasize that Section 138 is primarily compensatory and aimed at recovering the money owed - 22 - CRL.RP No. 251 of 2022 rather than pure incarceration. Imprisonment given in default of paying a fine is enough, as an extra punishment is not required, as the accused is working as an employee of Bank. Hence, separate imprisonment order for a term of three months was not required. To that effect, the order of trial Court and the First Appellate Court is modified. Accordingly, the Court proceed to pass the following: ORDER i. The Criminal Revision Petition is allowed in part. ii. The judgment of conviction and order on sentence passed by the trial Court and First Appellate Court are hereby confirmed. Insofar as sentence, it is made clear that, the accused is sentenced to pay a fine of Rs.4,35,000/- to the complainant and in default, he shall undergo simple imprisonment for three months. - 23 - CRL.RP No. 251 of 2022 iii. Thus, the separate imprisonment for three months as ordered by the trial Court is set aside. In view of the disposal of the revision petition, pending interlocutory applications, if any, shall stand dismissed. Registry is directed to send back the trial Court record with a copy of this order, forthwith. Sd/- (VENKATESH NAIK T) JUDGE AM