- 1 - NC: 2025:KHC:14068 CRL.RP No. 1354 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 1354 OF 2016 BETWEEN: K.R. KRISHNAPPA S/O B RANGAPPA AGED ABOUT 48 YEARS, R/O KODIRAMPURA VILLAGE, DODDERI HOBLI, MADHUGIRI TALUK 561008 …PETITIONER (BY SRI. PRAMOD C TOTAD, AMICUS CURIAE VIDE ORDER DATED 02.04.2025) AND: N.V. GIRIDHAR SINCE DECEASED BY HIS LR'S. ARUNA N.G, D/O LATE N.V. GIRIDHAR, W/O MANJUNATH REDDY, RESIDING AT NO.41, ELITE GARDEN SATHANUR VILLAGE, BAGALURU ROAD, BANGALORE-560 149. …RESPONDENT (BY SRI. KUMAR RAM C.M, ADVOCATE FOR LR'S) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE DATED 18.11.2015 PASSED BY THE ADDL. C.J. AND J.M.F.C., MADHUGIRI IN C.C.NO.401/2013 AND ALSO THE IMPUGNED Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:14068 CRL.RP No. 1354 of 2016 JUDGMENT DATED 1.10.2016 PASSED BY THE IV ADDL. DIST. AND S.J, MADHUGIRI IN CRL.A.NO.5018/2015. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL ORDER In this revision petition, the revision petitioner/accused has assailed the judgment dated 01.10.2016 passed by the Court of IV Addl. District and Sessions Judge at Madhugiri (hereinafter referred to as 'the First Appellate Court') in Crl.A.No.5018/2015, wherein the First Appellate Court had dismissed the appeal filed by the revision petitioner and confirmed the judgment of conviction and order of sentence passed by the Court of Addl. Civil Judge and JMFC at Madhugiri (for short 'the trial Court') in C.C.No.401/2013 dated 18.11.2015. 2. Parties are referred to as per ranking before the trial Court. 3. The factual matrix of the prosecution case, in brief, is as follows: - 3 - NC: 2025:KHC:14068 CRL.RP No. 1354 of 2016 The accused and the complainant are known to each other and the accused borrowed a sum of Rs.6,00,000/- from the complainant as hand loan by mortgaging the landed property under a Registered Mortgage Deed by agreeing to repay the same with interest till redemption of the simple mortgage. Further, for the repayment of the loan amount accused issued a post dated cheque bearing No.483345 dated 12.11.2012 drawn on D.C.C. Bank, Madhugiri Branch for a sum of Rs,7,00,000/-. Upon presentation of the said cheque, the same returned with an endorsement "Insufficient Funds". The same was intimated to the accused by the complainant by issuing a legal notice dated 11.01.2013. The said notice served to the accused on 01.02.2013. However the accused replied the said notice by denying the liability and issuance of the cheque. Hence, the complainant filed the private complaint under Section 200 of Cr.P.C against the accused for the offence punishable under Section 138 of the Negotiable Instrument Act (for short 'the NI Act') before the trial court. 4. In order to prove the case before the trial court, the complainant examined himself as PW.1 and also examined 2 more witnesses as PWs.2 and 3 so also got marked 8 - 4 - NC: 2025:KHC:14068 CRL.RP No. 1354 of 2016 documents as Exs.P1 to P8. However, the accused neither examined any witness nor got marked any documents on his behalf. 5. After assessment of oral and documentary evidence, the trial Court convicted the accused for the offence punishable under Section 138 of the N.I. Act, as under: "ORDER Acting under section 255 (2) of Criminal Procedure Code, accused is convicted for the offence punishable under section 138 of Negotiable Instruments Act, 1882. Accused is sentenced to undergo simple imprisonment for a period of six months and shall pay fine of Rs.5,000/- for the offence punishable under section 138 of Negotiable Instruments Act, 1882. In default to pay the fine, the accused shall further undergo Simple Imprisonment for the period of another one month. Acting under section 357 (3) of Criminal Procedure Code, accused is ordered to pay an amount of Rs.7,50,000/- to the complainant as compensation. In default to pay the compensation the accused shall further undergo simple imprisonment for a period of seven month." 6. Aggrieved by the said judgment, the accused approached the First Appellate Court in Crl.A.No.5018/2015. - 5 - NC: 2025:KHC:14068 CRL.RP No. 1354 of 2016 The First Appellate Court after re-assessment of the entire evidence on record dismissed the appeal filed by the accused by confirming the judgment passed by the trial Court. Challenge to the same is lis before this Court. 7. I have heard Sri. Pramod C. Totad, Amicus Curiae for the revision petitioner and Sri. Kumar Ram C.M., learned counsel for the respondent. 8. The primary contention of the Amicus Curiae for the revision petitioner/accused is that the trial Court and the First Appellate Court grossly erred while convicting the accused without appreciating the evidence on record in right perspective. He further contended that, both the Courts below failed to appreciate the defence put forth by the accused that, the cheque in question was not issued by the accused to the complainant and the same is manipulated and created to defeat and defraud the accused. Further, the complainant at no point of time advanced the loan amount to the accused as claimed by him. He also contended that the complainant failed to prove his lending capacity. Accordingly, he prays to allow the revision petition. - 6 - NC: 2025:KHC:14068 CRL.RP No. 1354 of 2016 9. Per contra, learned counsel for the respondent contended that the trial Court and the First Appellate Court after meticulously examining the entire evidence on record, passed a well-reasoned judgments which do not call for any interference at the hands of this Court. He further contended that, the defence put forth by the accused both in the reply notice and in the cross-examination of the complainant is not a probable one that the cheque in question was manipulated and created to defeat and defraud the accused. According to the learned counsel, the signature in the cheque is not in dispute and the execution of the Mortgage Deed is also not in dispute. In such circumstances, the accused totally failed to rebut the initial presumption. As such, both the Courts below rightly passed the judgments. Accordingly, he prays to dismiss the revision petition. 10. I have given my anxious consideration on the arguments advanced by the learned counsel for the respective parties so also perused the materials and evidence placed before me. As could be gathered from the records, the execution of Registered Mortgage Deed dated 21.04.2011 as per Ex.P8 between the accused and complainant is not - 7 - NC: 2025:KHC:14068 CRL.RP No. 1354 of 2016 seriously disputed by the accused. On perusal of the same, it depicts that the accused had received a sum of Rs.6,00,000/- on 21.04.2011. On careful perusal of the signature of the accused on Registered Mortgage Deed-Ex.P8 and the cheque in question-Ex.P1 is one and the same. As such, though the accused denied the issuance of the cheque in question, the said defence of the accused is not acceptable. Nevertheless, the accused failed to place any such document to substantiate his contention that the cheque in question was manipulated and created by the complainant to defeat and defraud him. 11. No doubt, initial presumption under Sections 118 and 139 of the N.I. Act is rebuttal one. Nevertheless, it is a settled position of law that such initial presumption can be rebutted only by placing a probable defence. In the case on hand, the accused failed to put forth such probable defence. Such being the position, I am of the considered view that both the Courts below have rightly passed the judgments by convicting the accused for the offence punishable under section 138 of N.I. Act and granting compensation to the complainant. Albeit the trial Court sentenced the accused to undergo simple imprisonment for a period of six months and shall pay a fine of - 8 - NC: 2025:KHC:14068 CRL.RP No. 1354 of 2016 Rs.5,000/- for the offence punishable under section 138 of N.I. Act and in default to pay the fine amount, the accused is directed to undergo simple imprisonment for one month. Since the accused is directed to pay the compensation amount and default sentence, in my considered view the sentence imposed by the trial Court for the offence punishable under section 138 of N.I. Act is liable to be set aside. However, the compensation amount and default sentence are kept intact. Accordingly, I proceed to pass the following: ORDER i. The Criminal Revision petition is allowed in part. ii. The judgment of conviction dated 18.11.2015 passed by the Addl. Civil Judge and JMFC, Madhugiri in C.C.No.401/2013, which was confirmed by the First Appellate Court i.e., IV Addl. District and Sessions Judge, Madhugiri in Crl.A.No.5018/2015 dated 01.10.2016 is hereby modified. iii. The revision petitioner/accused shall pay the fine of Rs.7,50,000/- to the complainant/respondent and in default of - 9 - NC: 2025:KHC:14068 CRL.RP No. 1354 of 2016 payment of fine he shall undergo simple imprisonment for a period of seven months. iv. The separate sentence imposed by the trial Court for the offence punishable under section 138 of N.I. Act is hereby set aside. v. The revision petitioner/ accused shall deposit the fine amount within six weeks from the date of receipt of the certified copy of this order. vi. The Registry is directed to send the trial Court records along with the copy of this order to the concerned Court, forthwith. vii. The KSLA/Registry is directed to pay a sum of Rs.15,000/- as honorary to the learned Amicus Curiae, Sri Pramod C. Totad, for assisting the Court in this revision petition. SD/- (RAJESH RAI K) JUDGE HKV List No.: 1 Sl No.: 25