- 1 - HC-KAR NC: 2025:KHC:26628 CRL.RP No. 812 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION NO. 812 OF 2017 BETWEEN: B N BASAVARAJU S/O NINGAPPA, AGED ABOUT 44 YEARS, R/O BASARAJAPURA VILLAGE BENDEKERE (P) ARASIKERE TALUK, HASSAN DISTRICT. …PETITIONER (BY SRI. NARENDRA GOWDA, ADVOCATE) AND: K C DANPAL NAIK S/O LATE CHANDRA NAIK, AGED ABOUT 44 YEARS, R/O KOMMARA GHATTA, THANDYA, KURUVANKA (P) BANAVARA (H), ARASIKERE (T) HASSAN DISTRICT. …RESPONDENT (BY SRI. DAYANAND S PATIL, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 16.6.2017 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN IN CRL.A.NO.55/2014 THEREBY CONFIRMING THE JUDGMENT Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26628 CRL.RP No. 812 of 2017 AND ORDER OF CONVICTION AND SENTENCE DATED 28.3.2014 PASSED BY THE ADDITIONAL CIVIL JUDGE AND J.M.F.C., ARASIKERE IN C.C.NO.1359/2012 THEREBY CONVICTING THE PETITIONER FOR THE OFFENCE P/U/S 138 OF N.I.ACT AND ETC,. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER This Criminal Revision Petition is directed against the judgment dated 16.06.2017 passed in Crl.A.No.55/2014 by the II Additional District and Sessions Judge, Hassan wherein judgment of conviction dated 28.03.2014 passed in C.C.No.1359/2012 by the Additional Civil Judge and JMFC, Arasikere convicting the petitioner –accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I Act” for brevity) and sentencing him to pay fine of Rs.3,02,000/- (rupees Three Lakhs Two Thousand only) and in default to undergo simple imprisonment for a period of one year has been affirmed. - 3 - HC-KAR NC: 2025:KHC:26628 CRL.RP No. 812 of 2017 2. Heard learned counsel for the petitioner and learned counsel for the respondent. 3. The case of the respondent –complainant before the trial Court was that the respondent –complainant and petitioner –accused are known to each other since many years. The petitioner –accused has approached the complainant on 23.10.2011 and borrowed a sum of Rs.3,00,000/- (rupees Three Lakhs only) by agreeing to repay the same within three months. In that regard he has executed On Demand Promissory Note and Consideration Receipt. Even after three months, the petitioner –accused has not repaid the amount borrowed. On demand, the petitioner has issued cheque dated 08.03.2013 for a sum of Rs.3,00,000/-(rupees Three Lakhs only)drawn on State Bank of India, Arasikere Branch infavor of the respondent –complainant. The complainant presented the said cheque and it came to be dishonoured for a reason “insufficient funds”. The complainant got issued legal notice demanding payment of - 4 - HC-KAR NC: 2025:KHC:26628 CRL.RP No. 812 of 2017 cheque amount to the accused. Inspite of service of notice, the petitioner –accused has not paid cheque amount within 15 days. Therefore, the respondent – complainant has initiated proceedings against the petitioner –accused for offence punishable under Section 138 of the N.I Act. 4. The complainant in order to prove his case has examined himself as P.W.1, one witness has been examined as P.W.2 and got marked documents as Ex.P1 to P13. The statement of the accused has been recorded under Section 313 of Cr.P.C. The petitioner –accused has been examined himself as D.W.1 and got marked documents as Ex.D1 to D5. Learned Magistrate after hearing arguments on both side and appreciating evidence on record has convicted the petitioner –accused for the offence punishable under Section 138 of the N.I Act and sentenced to pay fine of Rs.3,02,000/- (rupees Three Lakhs Two Thousand only) and in default to undergo simple imprisonment for a period of one year. The said - 5 - HC-KAR NC: 2025:KHC:26628 CRL.RP No. 812 of 2017 judgment of conviction has been challenged by the petitioner -accused before the Sessions Court in Crl.A.No.55/2014. The appeal came to be dismissed on merits affirming the judgment of conviction and order on sentence passed by the trial Court. 5. Learned counsel for the petitioner would contend that earlier the petitioner –accused had borrowed a sum of Rs.50,000/- (rupees Fifty Thousand only) in the year 2010 from the respondent –complainant and at that time he had given cheque and promissory note as security. The said amount borrowed has been repaid on five dates and counter files are at Ex.D1 to D5. He submits that the respondent –complainant has misused signed cheque and promissory note given by the accused earlier. The defence of the petitioner –accused has been put to P.W.1 in his cross examination and P.W.1 has admitted accused had borrowed a sum of Rs.50,000/- (Rupees Fifty Thousand only) and repaid the same. Considering this aspect, the petitioner –accused has - 6 - HC-KAR NC: 2025:KHC:26628 CRL.RP No. 812 of 2017 established his defence. Without considering this aspect, learned Magistrate has erred in convicting the petitioner – accused for offence punishable under Section 138 of the N.I Act and the Appellate Court has erred in affirming the said conviction. With these, he prays to allow the Criminal Revision Petition. 6. Learned counsel for the respondent has supported reasons assigned by the trial Court and Appellate Court and prays to dismiss this Criminal Revision Petition. 7. Having heard learned counsels, this Court has perused impugned judgments and trial Court records. 8. It is specific case of the respondent – complainant that the petitioner –accused has borrowed a sum of Rs.3,00,000/- (rupees Three Lakhs only) on 23.10.2011 agreeing to repay the same within three months and executed On Demand Promissory Note and Consideration Receipt. The petitioner –accused in order to - 7 - HC-KAR NC: 2025:KHC:26628 CRL.RP No. 812 of 2017 repay the amount borrowed has issued cheque -Ex.P3 for a sum of Rs.3,00,000/- (rupees Three Lakhs only) and it came to be dishonoured. The petitioner –accused has admitted his signature on cheque –Ex.3, On Demand Promissory Note –Ex.P1 and Consideration Receipt –Ex.P2. In order to prove that the petitioner –accused has borrowed Rs.3,00,000/- (rupees Three Lakhs only) and executed On Demand Promissory Note and Consideration receipt, witness to said documents has been examined as P.W.2. P.W.2 is signatory to Ex.P1 - On Demand Promissory Note and Consideration Receipt –Ex.P2 and he has specifically stated that in his presence the petitioner – accused had borrowed a sum of Rs.3,00,000/- (rupees Three Lakhs only) from the respondent –complainant on 23.10.2011 and executed On Demand Promissory Note – Ex.P1 and Consideration Receipt –Ex.P2. Nothing material has been elicited in the cross examination of P.W.2 to disbelieve his evidence. - 8 - HC-KAR NC: 2025:KHC:26628 CRL.RP No. 812 of 2017 9. The petitioner –accused has admitted his signature on Ex.P3 cheque. As signature on cheque – Ex.P3 is admitted, the presumption has to be drawn under Section 139 of the N.I Act that the cheque is issued towards discharge of debt. The said presumption is rebuttable presumption. The standard of proof for rebutting the said presumption is that of preponderance of probability. 10. In order to rebut the said presumption except the suggestion to P.W.1 nothing material is placed on record. Ex.P1 and 2 and evidence of P.W.2 establish that there is legally recoverable debt. Ex.P3 –cheque has been issued for making payment of legally enforceable debt. Considering above aspects, learned Magistrate has rightly appreciate the evidence on record and rightly convicted the petitioner –accused for offence punishable under Section 138 of the N.I Act and Appellate Court has also re- appreciated evidence on records properly and rightly affirmed the conviction of petitioner –accused passed by - 9 - HC-KAR NC: 2025:KHC:26628 CRL.RP No. 812 of 2017 the trial Court. Considering above aspects, there are no grounds to allow this Criminal Revision Petition. 11. Hence, this Criminal Revision Petition is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DSP List No.: 1 Sl No.: 52