- 1 - HC-KAR NC: 2025:KHC-K:2910 CRL.RP No. 200052 of 2018 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 6TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL REVISION PETITION NO. 200052 OF 2018 (397(Cr.PC)/438(BNSS)) BETWEEN MAMTA MORE W/O TURUBA ALI, AGE: 42 YRS R/O MADINA COLONY MSK MILL, KALABURAGI ...PETITIONER (BY SRI MAHANTESH H DESAI, ADV.) AND 1 . MALLAMMA W/O SHIVAKUMAR SWAMY AGE: 40 YRS OCC: BUSINESS R/O SUBHASH NAGAR, SHAHABAZAR KALABURAGI 2 . THE STATE OF KARNATAKA THROUGH ASHOK NAGAR PS KALABURAGI REPRESENTED BY ADDL. SPP HIGH COURT OF KARNATAKA BENCH AT KALABURAGI (RESPONDENT NO.2 IS DELETED AS PER THE ORDER OF HON’BLE HIGH COURT OF KARNATAKA ON 28.08.2024) …RESPONDENTS (BY SRI B. V. JALDE, ADVOCATE) THIS CRL.RP IS FILED U/S 397 READ WITH 401 OF CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO ALLOWED BY SETTING Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:2910 CRL.RP No. 200052 of 2018 ASIDE THE ORDER PASSED ON THE FILE OF V ADDL. CIVIL JUDGE (JR.DN) AND JMFC AT KALABURAGI IN C.C.NO.942/2008 ON DATED:28.01.2012 AND SET ASIDE THE ORDER PASSED BY THE I ADDITIONAL SESSIONS JUDGE AT KALABURAGI IN CRL.APPEAL NO.27/2012 DATED 19.06.2018 CONFIRMING THE JUDGMENT OF COURT BELOW AND ACQUIT THE REVISION PETITIONER FOR THE ALLEGED OFFENCES, IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION HAVING BEEN HEARD AND RESERVED ON 07.03.2025 AT KALABURAGI BENCH AND COMING ON FOR PRONOUNCEMENT OF ORDER, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE S RACHAIAH CAV ORDER (PER: HON'BLE MR. JUSTICE S RACHAIAH) This revision petition is filed to set aside the judgment of conviction and order on sentence dated 28.01.2012, passed by the V Addl. Civil Judge (Jr.Dn.) and JMFC at Kalaburagi in C.C.No.942/2008, which was confirmed by the I Addl. Sessions Judge at Kalaburagi vide judgment dated 19.06.2018, passed in Criminal Appeal No.27/2012, and acquit the petitioner. Factual matrix of the case: 2. The case of the complainant is that herself and the accused are known to each other. The accused is stated to have borrowed a sum of Rs.86,000/- on 20.11.2007 as hand - 3 - HC-KAR NC: 2025:KHC-K:2910 CRL.RP No. 200052 of 2018 loan for his family necessity. In the month of January, 2008, the complainant requested to return the loan amount. However, the accused had issued a cheque to clear the loan. When the said cheque was presented for encashment, it was returned with a shara as “funds insufficient”. Thereafter, a notice was issued to the accused, despite service of notice, the accused has neither repaid the loan nor replied to the said notice. Therefore, a complaint came to be registered against the accused before the jurisdictional Magistrate. 3. To prove the case, the complainant examined herself as P.W.1 and got marked seven documents as Exs.P.1 to P.7. On the contrary, the accused herself examined as D.W.1. The Trial Court after appreciating the oral and documentary evidence, convicted the accused for the aforesaid offence. In the appeal, the Appellate Court confirmed the judgment of conviction and order on sentence by dismissing the appeal. 4. Heard Sri.Mahantesh H Desai, learned counsel for the petitioner and Sri. B.V.Jalde, learned counsel for respondent. - 4 - HC-KAR NC: 2025:KHC-K:2910 CRL.RP No. 200052 of 2018 5. It is the submission of the learned counsel for the petitioner that the findings of the Courts below are perverse and arbitrary and also opposed to the facts and law of the case. Therefore, the same has to be set aside. 6. It is further submitted that the findings of the Courts below in recording the conviction is not proper and the same is opposed to the facts and evidence on record. Therefore, the same is liable to be set aside. 7. It is further submitted that both the Courts below have not considered the defence, as a result, the impugned judgments are passed and the same are liable to be set aside. As per the defence, the cheque was issued as a security for having borrowed a sum of Rs.1,00,000/- in the year 2002. Thereafter, she had cleared the loan. However, the complainant had not returned the cheque. The said fact should have been considered by the Courts below at the time of considering the evidence on record. - 5 - HC-KAR NC: 2025:KHC-K:2910 CRL.RP No. 200052 of 2018 8. It is further submitted that, even though the petitioner rebutted the presumption by leading cogent evidence, the fact remains that the Courts below did not consider the said fact, consequently, the impugned judgments are passed which are required to be set aside. Making such submissions, the learned counsel for the petitioner prays to allow the petition. 9. Per contra, learned counsel for the respondent/complainant submitted that the Trial Court and the Appellate Court while appreciating the evidence having considered the admission of the accused relating to the issuance of the cheque, signatures and opined that the complainant has proved the case whereas the accused failed to rebut the presumption. Such being the fact, interference with the findings of the Courts below may not be proper and appropriate. Therefore, the petition has to be rejected. 10. Having heard learned counsel for the respective parties and also perused the findings of the Courts below in recording the conviction, the Trial Court while appreciating the - 6 - HC-KAR NC: 2025:KHC-K:2910 CRL.RP No. 200052 of 2018 evidence, opined that the accused in her evidence has admitted that she borrowed a loan of Rs.1,00,000/- in the year 2008. Further, she admitted that she had to pay balance of Rs.30,000/- out of Rs.1,00,000/-. Though, she stated that the cheque was issued as a security for the loan, the facts remain that she has not produced any document to show that she had cleared part of the loan. 11. It is needless to say that once the execution of the cheque is admitted, it is presumed that the same has been issued for the purpose of clearing the debt or liability. It is the accused who has to rebut the presumption by leading the cogent evidence. In the present case, though the accused defended that the cheque had been issued as a security for which the transaction had held in the year 2002, the facts remain that further she admitted that again in the year 2008, she had borrowed a sum of Rs.1,00,000/-. 12. Be that as it may, her evidence has not been considered by the Courts below concurrently. Moreover, after having gone through the evidence on detail, it is also not - 7 - HC-KAR NC: 2025:KHC-K:2910 CRL.RP No. 200052 of 2018 convincible to this Court to accept the defence of the accused. Hence, I declined to interfere with the findings of the Courts below. However, as regards the sentence is concerned, by exercising the discretionary power vested under the revisional jurisdiction, the sentence of imprisonment along with fine has been modified. 13. In the light of the observation, I proceed to pass the following: ORDER (i) The Criminal Revision Petition is allowed-in-part. (ii) The judgment of conviction and order on sentence dated 28.01.2012 passed in C.C.No.942/2008 by the learned V Addl. JMFC, Gulbarga is modified as under: The petitioner is sentenced to pay fine of Rs.86,000/- for the offence punishable under Section 138 of NI Act. In default of payment of fine, she shall undergo simple imprisonment for a period of one year. - 8 - HC-KAR NC: 2025:KHC-K:2910 CRL.RP No. 200052 of 2018 Registry is directed to send the entire records to the Courts below forthwith. Sd/- (S RACHAIAH) JUDGE JS List No.: 48 Sl No.: 1