- 1 - NC: 2025:KHC:17263 CRL.RP No. 1294 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 1294 OF 2023 BETWEEN: BENKI CHIDANANDA S/O LATE BENKI THIPPESWAMY AGED ABOUT 59 YEARS R/AT NO. 167, 25TH CROSS, SIDDALINGESHWARA LAYOUT, J.P. NAGAR, MYSURU - 570 031. …PETITIONER (BY SRI. RANJAN KUMAR.R, ADVOCATE FOR SRI. M SHASHIDHARA, ADVOCATE) AND: S. RAMESH AGE MAJOR S/O LATE SRINIVAS RAO R/AT NO. 52, D ZONE, J.P. NAGAR, MYSURU- 570 031. …RESPONDENT (RESPONDENT SERVED AND UNREPRESENTED) THIS CRL.RP IS FILED U/S.397 R/W OF 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION PASSED BY THE HON'BLE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT MYSURU DATED 29.09.2023 IN CRL.A.NO.19/2023 BY CONFIRMING THE JUDGMENT OF CONVICTION PASSED BY THE TRIAL COURT, FOR OFFENCE P/U/S.138 OF NI ACT DATED 19.12.2022 IN C.C.NO.3538/2014 PASSED BY THE HON'BLE VII ADDITIONAL CIVIL JUDGE AND JMFC AT MYSURU BY ACQUITTING THE PETITIONER. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:17263 CRL.RP No. 1294 of 2023 CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL ORDER In this revision petition, the petitioner assailed the judgment passed in Crl.A.No.19/2023 dated 29.09.2023 by the II Additional District and Sessions Judge, Mysuru (hereinafter referred to as 'First Appellate Court'), whereby the First Appellate Court dismissed the appeal filed by the revision petitioner by confirming the judgment of conviction and order of sentence passed in C.C.No.3538/2014 dated 19.12.2022 by the VII Additional Civil Judge and JMFC, Mysuru (for short 'trial Court'). 2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. 3. The abridged facts of the case are as under: The accused is the friend of the complainant and he has borrowed a sum of Rs.64,000/- in the year 2013 as hand loan from the complainant with a promise to repay the same within six months. As such, he issued cheque bearing No.198713 dated 07.04.2014 for Rs.64,000/- drawn on Oriental Bank of Commerce, Kuvempunagar, Mysuru in favour of the complainant. On instructions, the complainant presented the - 3 - NC: 2025:KHC:17263 CRL.RP No. 1294 of 2023 said cheque from encashment, however, the same dishonoured with an endorsement 'funds insufficient'. The said aspect was intimated to the accused by the complainant by causing a legal notice. Though the notice served to the accused, he failed to repay the cheque amount. As such, the complainant presented the complaint under Section 200 of Cr.P.C. before the trial Court for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I.Act'). 4. To prove the case before the trial Court, the complainant himself examined as PW.1 and got marked 20 documents as Exs.P1 to P20. However, the accused also examined himself as DW.1 and got marked 13 documents as Exs.D1 to D13. 5. After assessment of the oral and documentary evidence, learned trial Court convicted the accused and passed the following: "ORDER Acting under section 255(2) of Code of Criminal Procedure the Accused is hereby convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. - 4 - NC: 2025:KHC:17263 CRL.RP No. 1294 of 2023 The Accused is hereby sentenced to pay a fine of Rs.64,000/- (Rupees Sixty four thousand Only) and acting under section 357(1) of Cr.P.C. out of the total fine amount payable by the Accused, a sum of Rs.62,000/- (Rupees Sixty two thousand only) shall be payable to the complainant as compensation and the remaining amount of Rs.2,000/- (Rupees Two thousand only) shall be defrayed as state expense. In default of payment of fine, accused shall undergo simple imprisonment for a period of three months. The bail bond executed by the accused is hereby cancelled as per law. Office is hereby directed to supply free certified copy of this judgment to the accused." 6. Aggrieved by the above judgment, the accused preferred an appeal before the First Appellate Court in Crl.A.No.19/2013. The First Appellate Court, after re-assessment of the entire evidence on record, dismissed the appeal filed by the revision petitioner and confirmed the judgment of conviction and order of sentence passed by the trial Court. Challenge to the same is lis before this Court. - 5 - NC: 2025:KHC:17263 CRL.RP No. 1294 of 2023 7. I have heard Sri Ranjan Kumar.R for Sri M.Shashidhara, learned counsel for the petitioner and perused the materials on record. 8. Though the respondent served, he remained unrepresented. 9. The primary contention of learned counsel for the petitioner is that both the trial Court and the First Appellate Court grossly erred while convicting the accused for the offence punishable under Section 138 of N.I. Act without appreciating the evidence on record in a right perspective. He further contended that the defence of the accused has not properly appreciated by the trial Court that the cheque in question-Ex.P1 was stolen by the complainant and presented for unlawful gain. To substantiate the said defence, the accused examined himself as DW.1 and marked 13 documents. Thus, the accused rebutted the initial presumption with a probable defence. This aspect was not properly considered by the trial Court and First Appellate Court. Accordingly, he prays to allow the revision petition. - 6 - NC: 2025:KHC:17263 CRL.RP No. 1294 of 2023 10. The respondent served and remained unrepresented. 11. I have given my anxious consideration to the arguments advanced learned counsel for the revision petitioner and perused the materials on record. 12. As could be gathered from the records that issuance of the cheque in question i.e., Ex.P1 and the signature of the accused on Ex.P1 is undisputed. Though the accused has raised a defence that the complainant had stolen the cheque in question and a complaint was lodged against him, he failed to produce the said complaint or any other documents to substantiate the said aspect. The other defence raised by the accused was that the complainant had no such lending capacity of Rs.64,000/-. On perusal of evidence of PW.1, he has clearly deposed that he is a businessman and he had the amount of Rs.64,000/- in the year 2013 and advanced the same to the accused as a hand loan based on their intimate friendship. 13. No doubt, initial presumption arising under Sections 118 and 139 of N.I. Act is a rebuttal one. However, as per the law laid down by this Court and the Hon'ble Apex Court in - 7 - NC: 2025:KHC:17263 CRL.RP No. 1294 of 2023 catena of judgments, such presumption can be rebutted only by placing a probable defence with material documents and evidence. In the case on hand, the accused has totally failed to rebut the initial presumption by placing cogent evidence. Hence, in my considered view both the trial Court and the First Appellate Court rightly passed the judgments and the interference does not call for at the hands of this Court. Accordingly, the revision petition is dismissed. SD/- (RAJESH RAI K) JUDGE VM List No.: 1 Sl No.: 20