- 1 - HC-KAR NC: 2025:KHC-D:10638 CRL.RP No. 100074 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY CRIMINAL REVISION PETITION NO. 100074 OF 2023 (397(CR.PC)/438(BNSS)) BETWEEN: SRI. NAVAJ AHAMAD SHAIKH S/O ABDUL SHAIKH, AGED ABOUT 53 YEARS, OCC. BUSINESS, R/O. BEHIND NAYAK MEDICAL STORES, KAKARMATH, TQ. ANKOLA, DIST. UTTARA KANNADA. … PETITIONER (BY SMT. RANJITA ALAGAWADI, ADVOCATE FOR SRI. SHARANABASAVARAJ C., ADVOCATE) AND: SUPRABHATA CREDIT CO-OP. SOCIETY LTD. ANKOLA, REP. BY ITS AUTHORIZED RECOVERY OFFICER, SRI. VINOD NARAYAN NAYAK, AGE ABOUT 52 YEARS, SUPRABHATA CREDIT CO-OP. SOCIETY LTD., ANKOLA TALUK-581 314, UTTARA KANNADA DISTRICT. … RESPONDENT (BY SRI. HAREESH S. NAYAK, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C., PRAYING TO CALL IN CRIMINAL APPEAL NO.154/2019 ON THE FILE OF THE 2ND ADDL. DISTRICT AND SESSION JUDGE UTTARA KANNADA, KARWAR AND IN C.C. NO.238/2018 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC ANKOLA AND SET ASIDE THE IMPUGNED JUDGMENT PASSED 2ND ADDL. DISTRICT AND SESSION JUDGE UTTARA KANNADA, KARWAR, IN CRIMINAL APPEAL NO.154/2019 DATED 12.01.2022 CONFIRMING THE ORDER PASSED IN C.C.NO. NO.238/2018 DATED 22.06.2019 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC ANKOLA WHEREBY CONVICTING THE PETITIONER FOR OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT AND SENTENCING HIM TO PAY A FINE OF RS.5,000/-ONE MONTH OF SIMPLE IMPRISONMENT AND, IN DEFAULT TO PAYMENT THE FINE SHALL UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 10 DAYS AND ALSO DIRECTED THE ACCUSED TO PAY RS.74,000/- AS COMPENSATION, IN THE INTEREST OF JUSTICE AND EQUITY. RAKESH S HARIHAR Digitally signed by RAKESH S HARIHAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:10638 CRL.RP No. 100074 of 2023 THIS PETITION, COMING ON FOR FURTHER HEARING THIS DAY, ORDER IS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY) 1. Petitioner is before this Court assailing the judgment and order of conviction and sentence passed in C.C.No.238 of 2018 (old C.C.No.209 of 2013) by the Court of Senior Civil Judge and JMFC, Ankola dated 22.06.2019, which is confirmed in Criminal Appeal No.154 of 2019 by Judgment and order dated 12.01.2022. 2. Heard the learned Counsel appearing for the parties 3. Respondent society had initiated proceedings against the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 before the trial Court by filing a private complaint under Section 200 of Cr.P.C, and in the said proceedings the petitioner who had appeared before the trial Court claimed to be tried. To substantiate the case of the complainant, Manager of the society was examined as PW1 and 11 documents were marked as Ex.P1 to P.11. In support of - 3 - HC-KAR NC: 2025:KHC-D:10638 CRL.RP No. 100074 of 2023 the defence, the petitioner herein had examined himself as DW1 and had got marked 14 documents as Ex.D1 to D14. The trial Court, after hearing the arguments addressed on both sides, had convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of one year and also sentenced to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for a period of ten days. Acting under Section 356(3) of Cr.P,C, petitioner was directed to pay an amount of Rs.74,000/- as compensation. The said judgment and order of conviction and sentence was confirmed in criminal appeal by the Jurisdictional Sessions Court and it is under these circumstances petitioner is before this Court. 4. Learned counsel for the petitioner submits that entire compensation amount of Rs.74,000/- has been already deposited before the trial Court and fine amount of Rs.5,000/- in also deposited before the jurisdictional Court at Ankola. The petitioner who had borrowed the loan for the purpose of business has suffered loss and therefore he was not in a - 4 - HC-KAR NC: 2025:KHC-D:10638 CRL.RP No. 100074 of 2023 position to repay the money to the society. Since the petitioner has now repaid the loan to the society the order of sentence passed as against the petitioner insofar as it relates to directing the petitioner to undergo simple imprisonment for a period of one year may be modified. 5. Per contra, learned counsel for the respondent has opposed the prayer made in the petition. He submits that loan was borrowed by the petitioner in the year 2010 and there is an inordinate delay in repaying the said loan. The petitioner is still due to pay the interest amount on the loan borrowed by him. Therefore, he prays to dismiss the petition. 6. The transaction between the petitioner and the respondent society has been proved by the respondent society by producing necessary documents before the trial Court, which are marked as Ex.P1 to Ex.P11. The Petitioner has not disputed the signature found in the cheque in question nor it is the case of the petitioner that the cheque is not drawn on the bank account maintained by him. Therefore, there is a presumption as against the petitioner under Section 139 of the NI Act and - 5 - HC-KAR NC: 2025:KHC-D:10638 CRL.RP No. 100074 of 2023 unless the petitioner rebuts the same, he is liable to be punished for the alleged offences. 7. The trial Court as well as the appellate Court having found that petitioner has not rebutted the presumption has rightly convicted him for the alleged offences, and I do not find any illegality or irregularity in the order of conviction passed by the trial Court. It is found that petitioner had borrowed a sum of Rs.50,000/- from the respondent society in the year 2010 for the purpose of his business and towards repayment of the said loan, he had issued the cheque in question for a sum of Rs.74,000 on 01.06.2012. On presentation of the said cheque, the same was dishonoured by the drawee bank and therefore, proceeding for the offence punishable under Section 138 of the N.I. Act was initiated by the respondent society against the petitioner. 8. Learned counsel for the petitioner has now submitted that the entire amount of Rs.74,000/- which is covered under the cheque has been deposited before the trial court and said submission is not seriously disputed by learned counsel for the petitioner. - 6 - HC-KAR NC: 2025:KHC-D:10638 CRL.RP No. 100074 of 2023 9. The trial Court has sentenced the petitioner to undergo simple imprisonment for a period of one year and pay a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for a period of 10 days. In addition to the aforesaid sentence, trial Court has directed the petitioner to pay an amount of Rs.74,000/- as compensation. 10. Section 357 of Cr.P.C, reads as follows: “357. Order to pay compensation.—(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied— (a) in defraying the expenses of properly incurred in the prosecution; 1. Ins. by Act 25 of 2005, s. 29 (w.e.f. 23-6-2006). 157 (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such - 7 - HC-KAR NC: 2025:KHC-D:10638 CRL.RP No. 100074 of 2023 an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. 11. 11. From a reading of the said section, it is very clear that, whenever a Court sentences an accused to pay a fine, or if a sentence of fine forms a part of the sentence passed by the Court, then as provided under subsection 357(1) of Cr.P.C, the whole or any part of the fine recovered may paid as compensation. 12. Section 357(3) of Cr.P.C, provides that when the Court imposes a sentence of which fine does not form a part, the Court may while passing judgment order the accused - 8 - HC-KAR NC: 2025:KHC-D:10638 CRL.RP No. 100074 of 2023 person to pay compensation to the victim or to the person who has suffered. 13. In the case on hand, fine is a part of the sentence imposed on the petitioner and therefore, separate compensation could not have been ordered to be paid by the trial Court. Under the circumstances, the order of sentence passed by the trial Court needs to be modified. In the present case, the amount borrowed by the petitioner from the respondent was undisputedly Rs.50,000/- and the amount covered under the cheque in question is Rs.74,000/-, which included the interest on the loan amount borrowed. It is not in dispute that the respondent has filed separate proceedings to recover the amount covered under the cheque in question before the competent authority and the award passed by the competent authority is now being executed before the jurisdictional civil Court and the execution petition is pending consideration. Under the circumstances, I am of the opinion that the order of sentence passed by the trial Court needs to be modified. - 9 - HC-KAR NC: 2025:KHC-D:10638 CRL.RP No. 100074 of 2023 14. Accordingly, the following:- ORDER (i) Criminal Revision Petition is party allowed. (ii) The judgment and order of conviction passed by the Courts below, convicting the petitioner for offence punishable under Section 138 of the Negotiable Instruments Act is confirmed. (iii) The order of sentence passed as against the petitioner is modified and the petitioner is sentenced to pay a fine of Rs.79,000/-, out of which an amount of Rs.74,000/- shall be paid to the respondent society as compensation and the remaining amount of Rs.5,000/- shall be paid to the State towards litigation expenses. Sd/- (S.VISHWAJITH SHETTY) JUDGE NMS CT:BCK LIST NO.: 3 SL NO.: 1