- 1 - NC: 2025:KHC:15015 CRL.RP No. 639 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 639 OF 2017 BETWEEN: SRI. K.C DINESH SON OF SRI. CHANDRE GOWDA AGED ABOUT 52 YEARS R/AT KOTEVOOR VILLAGE KUDUVALLI POST CHIKKAMAGALURU TALUK PIN-577 133 …PETITIONER (BY SRI. MANJUNATH G KANDEKAR, ADVOCATE) AND: SRI. D.L KRISHNEGOWDA SON OF SRI LAKSHME GOWDA AGED ABOUT 38 YEARS R/AT DANTARAMAKKI EXTENSION JYOTHINAGARA POST CHIKKAMAGALURU -577 102 …RESPONDENT (BY SRI. D.C. JAGADEESH, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER IN C.C.NO.47/2013 PASSED BY THE II ADDL. CIVIL JUDGE AND JMFC, CHIKKAMAGALURU DATED 15.07.2015 AND JUDGMENT AND SENTENCE OF APPELLATE COURT IN CRL.A.NO.103/2015 PASSED BY THE II ADDL. S.J., CHIKKAMGALURU DATED 02.05.2017 AND CONSEQUENTLY ACQUIT THE PETR./ACCUSED. Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:15015 CRL.RP No. 639 of 2017 THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL ORDER This criminal revision petition is directed against the judgment passed in Crl.A.No.103/2015 dated 02.05.2017 by the II Additional District and Sessions Judge, Chikkamagaluru (hereinafter referred to as 'the First Appellate Court' for short), whereby the First Appellate Court dismissed the appeal filed by the revision petitioner and confirmed the judgment of conviction and the order of sentence passed in C.C.No.47/2013 dated 15.07.2015 by the II Additional Civil Judge & JMFC, Chikmagalur (hereinafter referred to as 'the Trial Court' for short). 2. Parties are referred to as per their ranking before the Trial Court 3. The abridged facts of the case are as under: The revision petitioner/accused has availed hand loan of Rs.50,000/- from the respondent/complainant to meet his medical expenses. For repayment of the said loan amount, the - 3 - NC: 2025:KHC:15015 CRL.RP No. 639 of 2017 accused has issued a cheque bearing No.180757 dated 15.01.2011 drawn on Chikmagalur District Co-operative Bank Ltd., HO Branch, Chikmagalur. The said cheque was presented by the complainant for encashment, however, the same was returned with an endorsement 'funds insufficient'. The said aspect was informed by the complainant to the accused, however, he failed to repay the same. As such, the complainant issued a legal notice to the accused on 02.04.2011, calling upon him to repay the cheque amount with interest. The said notice though served, returned with endorsement as 'addressee not claimed hence returned to sender'. As such, the complainant filed the private complaint before the trial Court under Section 200 of Cr.P.C against the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act' for short). 4. In order to prove the case of the complainant, he examined himself as PW.1 and got examined another witness as PW.2 so also marked 5 documents as Exs.P1 to P5. However, the respondent/accused neither examined any witnesses nor got marked any documents on his behalf. - 4 - NC: 2025:KHC:15015 CRL.RP No. 639 of 2017 5. After assessment of oral and documentary evidence placed before the trial Court, the trial Court passed the judgment by convicting the accused for the offence punishable under Section 138 of the NI Act and sentenced him to pay fine of Rs.3,000/-. In default of payment of fine, directed him to undergo simple imprisonment for a period of three months and he was further directed to pay a sum of Rs.50,000/- to the complainant as compensation under Section 357(3) of Cr.P.C. 6. Aggrieved by the above judgment, the accused preferred the criminal appeal before the First Appellate Court in Crl.A.No.103/2015. On reassessment of the oral and documentary evidence and documents on record, learned Session Judge dismissed the criminal appeal and confirmed the judgment of conviction and the order of sentence passed by the trial Court. Challenge to the same is lis before this Court. 7. I have heard the learned counsel, Sri Manjunath G. Kandekar, for the revision petitioner and Sri D.C. Jagadeesh, learned counsel for the respondent. 8. The primary contention of the learned counsel for the revision petitioner is that there is material alternation in - 5 - NC: 2025:KHC:15015 CRL.RP No. 639 of 2017 cheque in respect of the amount mentioned thereon. According to him, in Ex.P1, the amount in words mentioned as fifty thousand and in number it mentioned as Rs.60,000/-. He further contended that the trial Court and the First Appellate Court grossly erred while passing the impugned judgment by convicting the accused without appreciating the evidence on record in the right perspective. He additionally contended that the complainant failed to prove his lending capacity of Rs.50,000/- to the accused since he has admitted in his cross- examination that he was working as a Coolie in the estate of the accused. In such circumstance, the complainant failed to prove the legally recoverable debt from the accused. This aspect was not properly appreciated by the trial Court and the First Appellate Court. Accordingly, he prays to allow the revision petition. 9. Per contra, learned counsel for the respondent contended that both the trial Court and the Session Court after meticulously examining the entire evidence and documents available on record, passed a reasoned judgments, which do not call for any interference at the hands of this Court. He further contended that the accused totally failed to rebut the - 6 - NC: 2025:KHC:15015 CRL.RP No. 639 of 2017 initial presumption under Sections 118 and 139 of NI Act either by examining any witnesses or by placing any documents to that effect. According to the respondent, the legal notice served to the accused, he has failed to reply the same. Nevertheless, he failed to examine any witness to prove his defence before the trial Court. It is contended that the cheque in question was returned by the Bank with an endorsement 'Funds Insufficient'. He additionally contended that the amount involved in this case is only a sum of Rs.50,000/-, the complainant stated in his evidence that he was capable of advancing the loan amount at the relevant point of time. Accordingly, he prays to dismiss the revision petition. 10. Having heard the learned counsel for the respective parties so also perused the documents, the only point that would arise for my consideration is: "Whether the first Appellate Court is justified in dismissing the appeal in Crl.A.No.103/2015 dated 02.05.2017 thereby confirming the judgment of conviction and the order of sentence passed by the trial Court in C.C.No.47/2013 dated 15.07.2015? 11. I have given my anxious consideration on the arguments advanced by the learned counsel for the respective - 7 - NC: 2025:KHC:15015 CRL.RP No. 639 of 2017 parties and also carefully perused the entire materials on record placed before me. 12. As could be gathered from the records, the accused has not disputed the signature on Ex.P1-cheque. Further, the accused neither replied to the legal notice nor examined any witness on his behalf to substantiate the aspect that how the complainant had obtained the cheque belongs to him. PW.1, in his evidence, categorically stated that due to medical urgency, the accused availed hand loan of Rs.50,000/-. Admittedly both of them are known to each other. No doubt, the initial presumption arises under Sections 118 and 139 of NI Act, is a rebuttable presumption. However, it is settled position of law that such defence of the accused must be a probable one. In the case on hand the accused has failed to rebut the initial presumption by placing a probable defence. In such circumstances, both the trial Court and the First Appellate Court are justified in holding that the accused is guilty under Section 138 of NI Act. I find there is no good ground to interfere in the impugned judgment passed by the trial Court which was confirmed by the First Appellate Court. In that view - 8 - NC: 2025:KHC:15015 CRL.RP No. 639 of 2017 of the matter, the revision lacks merits and the same is liable to be dismissed. Accordingly, I proceed to pass the following: ORDER The Revision Petition is dismissed being devoid of merits. SD/- (RAJESH RAI K) JUDGE KTY List No.: 1 Sl No.: 19