- 1 - NC: 2025:KHC:13824 CRL.RP No. 1370 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 1370 OF 2016 BETWEEN: S.M. RASHID S/O. MOHAMMED ALI, AGED ABOUT 39 YEARS, R/AT NEAR RAGHAVENDRA TEMPLE, MADIKERI TOWN, KODAGU DISTRICT. …PETITIONER (BY SRI. REMANTH E.H., ADVOCATE FOR SRI. GIRISHA N R.,ADVOCATE) AND: LOKESH M S/O. KALASHREE M, AGED ABOUT 30 YEARS, R/AT PUTTANINAGAR, MADIKERI TOWN, KODAGU DISTRICT-571 201. …RESPONDENT (BY SMT. DEEPA L KATTIMANI, ADVOCATE FOR SRI. SOMASHEKARA K M.,ADVOCATE) THIS CRL.RP IS FILED U/S.397 AND 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 3.9.2016 PASSED BY THE I ADDL. DIST. AND S.J., KODAGU AT MADIKERI IN CRL.A.NO.73/2015 AND ALSO THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 16.10.2015 PASSED BY THE ADDL. C.J. AND J.M.F.C., MADIKERI IN C.C.NO.65/2012 AND ACQUIT THE PETR. FROM THE ALLEGED OFFENCE. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13824 CRL.RP No. 1370 of 2016 CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL ORDER In this revision petition, the revision petitioner/accused has assailed the judgment dated 03.09.2016 passed by the Court of I Addl. District and Sessions Judge, Kodagu, Madikeri (hereinafter referred to as 'the First Appellate Court') in Crl.A.No.73/2015, 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 Additional Civil Judge and JMFC at Madikeri (for short 'the trial Court') in C.C.No.65/2012 dated 16.10.2015. 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: The accused is well acquainted with the complainant and they are intimate friends. On 11.08.2009, the accused approached the complainant and obtained a hand loan of Rs.70,000/-. To discharge the said liability, the accused had issued a post dated cheque bearing No.683372 drawn on Indian - 3 - NC: 2025:KHC:13824 CRL.RP No. 1370 of 2016 Bank, Madikeri Branch dated 01.01.2010 for a sum of Rs.70,000/-. When the complainant presented 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 16.06.2010. The said notice served to the accused on 21.06.2010. Despite the accused failed to reply to the notice or to repay the hand loan. 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 got examined 2 witnesses on his behalf as PWs.2 and 3 so also got marked 10 documents as Ex.P1 to P10. The accused also examined himself as DW.1. 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: - 4 - NC: 2025:KHC:13824 CRL.RP No. 1370 of 2016 "ORDER Acting u/s 255(2) of Cr.P.C., the accused is convicted for the offence P/U/Sec.138 of N.I. Act. The accused is sentenced to pay a fine of Rs.75,000/- and in default of payment of fine the accused shall undergo simple imprisonment for a period of six months. Out of fine amount of Rs.75,000/- the accused shall pay Rs.70,000/- to the complainant as compensation and pay remaining fine amount of Rs.5,000/- to the State as fine." 6. Aggrieved by the said judgment, the accused approached the First Appellate Court in Crl.A.No.73/2015. 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. Remanth E.H., the learned counsel for the revision petitioner and Smt. Deepa L. Kattimani, learned counsel for the respondent. 8. The primary contention of the learned counsel for the revision petitioner/accused is that the trial Court and the First Appellate Court grossly erred while convicting the accused without appreciating the defence put forth by the accused that, - 5 - NC: 2025:KHC:13824 CRL.RP No. 1370 of 2016 the accused and the respondent were partners and the cheque in question was taken by the complainant from the go down of the accused and the same was presented for unlawful gain. He further contended that there is no such lending capacity to the complainant to lend hand loan of Rs.70,000/-. However, both the Courts below have not properly appreciated the evidence of DW.1 in right perspective. Accordingly, he prays to allow the revision petition. 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. She further contended that, even after receiving the legal notice, the accused failed to reply the same and the defence put forth by the accused is not probable one to rebut the initial presumption. Accordingly, she prays to dismiss the revision petition. 10. As could be gathered from the records, the issuance of the cheque in question by the accused to the complainant is undisputed. The signature on the cheque-Ex.P1 is also not in - 6 - NC: 2025:KHC:13824 CRL.RP No. 1370 of 2016 dispute. The defence put forth by the accused is that, the cheque in question was illegally obtained by the complainant from the go down of the accused and thereafter misused the same for unlawful gain. However, on perusal of the records, the accused has not lodged any such complaint for having lost the cheque. Even otherwise, he has failed to reply to the legal notice issued by the complainant. No doubt, initial presumption under Sections 118 and 139 of the NI 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 which do not call for any interference at the hands of this Court. Accordingly, I proceed to pass the following: ORDER i) The Criminal Revision petition is dismissed. ii) The judgment of conviction dated 16.10.2015 passed by the Addl. Civil Judge and JMFC, Madikeri in C.C.No.65/2012, which was confirmed by the First Appellate - 7 - NC: 2025:KHC:13824 CRL.RP No. 1370 of 2016 Court i.e., I Addl. District and Sessions Judge, Kodagu, Madikeri in Crl.A.No.73/2015 dated 03.09.2016 is hereby confirmed. iii) The revision petitioner/accused shall pay the fine amount imposed by the trial Court to the complainant/respondent within six weeks from the date of receipt of the certified copy of this order. iv) The Registry is directed to send the trial Court records along with the copy of this order to the concerned Court, forthwith. SD/- (RAJESH RAI K) JUDGE HKV List No.: 1 Sl No.: 26