- 1 - NC: 2025:KHC:12810 CRL.RP No. 959 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 959 OF 2017 BETWEEN: MR. SHRIDHAR U AGED ABOUT 56 YEARS S/O SRI. BABU R/AT # 1-21-1636 WIRELESS COMPOUND ASHOKNAGAR, URVA, MANGALORE - 575 006 …PETITIONER (BY SRI. H MALATESH, ADVOCATE) AND: SMT. T. KALAIVANI AGED ABOUT 40 YEARS W/O THILAGAR, R/A KIRAN KUTIR, KARKARI NIVAS, WIRELESS COMPOUND ASHOK NAGAR, URVA, MANGALORE - 575 006 …RESPONDENT (BY SRI. CYRIL PRASAD PAIS, ADVOCATE) THIS CRL.RP IS FILED U/S.397 AND 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 29.1.2016 PASSED BY THE J.M.F.C.-V, MANGALURU IN C.C.NO.70/2015 AND SET ASIDE THE JUDGMENT DATED 16.8.2017 PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANGALURU IN CRL.A.NO.58/2016. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by MAYAGAIAH VINUTHA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12810 CRL.RP No. 959 of 2017 CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL ORDER This revision petition is directed against the judgment passed in Crl.A.No.58/2016 dated 16.08.2017 by the IV Additional District and Sessions Judge, Mangalore (hereinafter referred to as 'the learned Sessions Judge' for short), whereby the learned Sessions Judge dismissed the appeal filed by the petitioner and confirmed the judgment of conviction and order of sentence passed in C.C.No.70/2015 dated 29.01.2016 by the JMFC, V Court, Mangalore, D.K., 2. For the sake of convenience, the parties are referred to per their rankings before the Trial Court. 3. The abridged facts of the case are as under: The accused obtained hand loan of Rs.50,000/- from the complainant and thereafter failed to repay the said loan amount and as per the request of the complainant, the accused issued a cheque bearing No.2252 dated 10.11.2014 for the said amount. The said cheque was presented by the complainant for encashment. However, the same was dishonored with an endorsement 'No sufficient balance in the drawee's account'. This was informed by the complainant to the accused. Despite, - 3 - NC: 2025:KHC:12810 CRL.RP No. 959 of 2017 he failed to repay the loan amount. As such, the complainant issued a legal notice dated 04.12.2014 calling upon the accused to repay the loan amount. Though the said legal notice was served upon the accused, he failed to repay the loan amount. Hence, left with no other option, the complainant filed a private complaint under Section 200 of Cr.P.C. before the learned Magistrate for the offences under Section 138 of Negotiable Instruments Act 1881 (hereinafter referred to as 'the NI Act'). 4. In order to prove her case before the Trial Court, the complainant examined herself as PW.1 and marked 8 documents as Exs.P1 to P8. The accused also examined himself as DW.1, however, he failed to mark any document on his behalf. 5. On assessment of oral and documentary evidence, the learned Magistrate convicted the accused for the offences punishable under Section 138 of NI Act and directed him to pay a fine of Rs.56,000/-, in default of payment of fine amount, directed to undergo simple imprisonment for a period of six months. - 4 - NC: 2025:KHC:12810 CRL.RP No. 959 of 2017 6. Aggrieved by the said judgment of conviction and order of sentence, the accused approached the learned Sessions Judge in Crl.A.No.58/2016. After re-appreciation of the entire evidence on record, the learned Sessions Judge dismissed the appeal filed by the petitioner and confirmed the judgment passed by the Trial Court. Challenge to the same is lis before this Court. 7. I have heard the learned counsel Sri. Malatesh for the petitioner and the learned counsel Sri. Cyril Prasad Pais for the respondent. 8. It is the primary contention of the learned counsel for the revision petitioner that both the Courts below have erred while passing the impugned judgments without appreciating the evidence and documents in right perspective. He further contended that the accused has categorically deposed before the Trial Court that he has repaid a sum of Rs.30,000/- although he had received a loan of Rs.20,000/-. Further, the complainant failed to place such credible documents to establish that he paid the loan Rs.50,000/-. In such circumstances, the Trial Court and the First Appellate - 5 - NC: 2025:KHC:12810 CRL.RP No. 959 of 2017 Court erred in passing the impugned judgments. Accordingly, he prays to allow the revision petition. 9. Per contra, the learned counsel for the respondent- complainant submitted that the transaction in question is admitted by the accused before the Trial Court. According to him, he received a hand loan of Rs.20,000/- instead of Rs.50,000/-. Further, the accused failed to place any such documents for having paid the amount to the complainant and the accused also failed to reply to the legal notice issued by the complainant. In such circumstances, the Trial Court and the First Appellate Court rightly passed the impugned judgments, which do not call for any interference by this Court. Accordingly, he prays to dismiss the revision petition. 10. Having heard the learned counsel for both the parties and having given my anxious consideration to the documents made available before me including the judgments passed by the Trial Court and the First Appellate Court, the only point that arises for my consideration is: "Whether the judgment passed by the First Appellate Court is justified in dismissing the appeal - 6 - NC: 2025:KHC:12810 CRL.RP No. 959 of 2017 filed by the revision petitioner by confirming the judgment passed by the Trial Court?" 11. As could be gathered from the records, the complainant and the accused has not seriously disputed the transaction in question. It is the contention of the accused that he had received a hand loan of Rs.20,000/- from the complainant and thereafter, he not only repaid the said loan amount of Rs.20,000/- but also paid an additional sum of Rs.10,000/-. Thus, totaling to Rs.30,000/-. It is admitted case of the accused that the legal notice issued by the complainant was served on him. In spite of that, he failed to reply to the said legal notice by placing his defence. As rightly contended by the learned counsel for the respondent, the accused also failed to produce any such documentary evidence to substantiate his contention that he had already repaid the hand loan. 12. No doubt, the initial presumption under Section 138 of the NI Act is a rebuttal presumption. However, such defence to rebut the initial presumption, the defence of the accused must be a probable one. In the instant case, there is neither credible evidence nor documents produced by way of probable defence by the accused. In such circumstances, I am of the - 7 - NC: 2025:KHC:12810 CRL.RP No. 959 of 2017 considered view that the Trial Court and the First Appellate Court rightly appreciated the evidence available on record. In that view of the matter, the impugned judgments do not call for any interference by this Court. Accordingly, I answer the point raised above in the negative and proceed to pass the following: ORDER i) The Revision Petition is dismissed. SD/- (RAJESH RAI K) JUDGE VM List No.: 1 Sl No.: 22