- 1 - HC-KAR NC: 2025:KHC:34366 CRL.RP No. 1422 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE CRIMINAL REVISION PETITION NO. 1422 OF 2018 BETWEEN: SRI SHANKAR ACHARYA, S/O CHANDRAYYA ACHARYA, AGED ABOUT 39 YEARS, R/O HOUSE NO.5-143, 76 BADAGABETTU, UDUPI TALUK AND DISTRICT - 576101. …PETITIONER (BY SRI HAREESH BHANDARY T, ADVOCATE) AND: SMT PRATHIBA, W/O RAMESH SUVARNA, AGED ABOUT 38 YEARS, R/A PRINCE COMPOUNDM GUNDIBAIL-PADIGAR ROADM KUNJIBETTU POST, SHIVALLI, UDUPI TQ & DISTRICT - 576101. …RESPONDENT (BY SRI S K ACHARYA, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 16.01.2018 PASSED BY THE III ADDITIONAL CIVIL JUDGE AND J.M.F.C., UDUPI IN C.C.NO.70/2017 AND THE JUDGMENT AND ORDER DATED 31.10.2018 PASSED BY THE PRINCIPAL SESSIONS JUDGE, UDUPI IN CRL.A.NO.16/2018 AND ACQUIT THE PETITIONER FOR THE OFFENCES WITH WHICH HE WAS CONVICTED BY THE COURTS BELOW. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34366 CRL.RP No. 1422 of 2018 ORAL ORDER This petition is filed challenging the concurrent finding in the proceedings under Section 138 of Negotiable Instruments Act. 2. The complainant/respondent initiated a criminal proceeding against the petitioner/accused on the premise that the cheques for Rs.4,50,000/- issued by the petitioner are dishonoured. 3. It is his case that the petitioner agreed to sell the property to the complainant and received Rs.4,50,000/- in advance. However, the sale transaction was not complete and when the complainant demanded the advance consideration of Rs.4,50,000/-, the petitioner issued two cheques for Rs.2,25,000/- each and the cheques were dishonoured and despite the notice the amount is not paid. Hence, the complaint is filed. 4. Petitioner contested the case. Denied the liability. In the cross-examination the petitioner has - 3 - HC-KAR NC: 2025:KHC:34366 CRL.RP No. 1422 of 2018 admitted the signature on the cheques. However, the petitioner contends that the dispute is a civil dispute and Section 138 of Negotiable Instruments Act is not attracted as the sale agreement between the petitioner and respondent is terminated by the petitioner. 5. The Trial Court convicted the accused and sentenced the accused to pay a fine of Rs.4,55,000/- and sentenced to undergo simple imprisonment for one year. In default of payment, the accused is sentenced to undergo one more year simple imprisonment. Appeal filed by the petitioner-accused is also dismissed. 6. Learned counsel appearing for the petitioner would submit that the transaction being a civil transaction relating to purchase of the property, petitioner has terminated the agreement by issuing notice as such, the complainant/respondent has not made out a case under Section 138 of the Act, 1881. - 4 - HC-KAR NC: 2025:KHC:34366 CRL.RP No. 1422 of 2018 7. It is also submitted that the complainant ought to have filed a case for specific performance of the contract. It is urged that the agreement provided for termination of the agreement in the event of breach of the contract by purchaser/complainant. 8. This Court has considered the contentions raised at the bar and perused the records. 9. Though the accused has taken a stand that the agreement for sale provides for termination of the contract, that does not mean that the accused can withhold the payment unless the agreement provides for withholding the advance consideration amount paid to the petitioner. Accused has also not led any evidence to rebut the presumption arising from Section 139 of the Act, 1881 and the agreement at Ex.P.7 would also reveal that the complainant has paid Rs.4,50,000/- to the petitioner/accused. - 5 - HC-KAR NC: 2025:KHC:34366 CRL.RP No. 1422 of 2018 10. Under these circumstances, no fault can be found with the judgment of the Trial Court and Appellate Court convicting the accused for offence under Section 138 of the Act, 1881. 11. However, it is required to be noticed that in addition to awarding the fine amount which is double the cheque amount, the Trial Court has also sentenced the accused to undergo simple imprisonment of one year and also one more year of simple imprisonment in the event of default. 12. Though learned counsel for the petitioner would urge that the fine amount being double the cheque amount is not justified in the facts and circumstances of the case, this Court is of the view that the cheque was issued in the year 2016 pursuant to the transaction of 2015, as such, the penalty of double the fine amount can be confirmed in the year 2025. However, imprisonment of - 6 - HC-KAR NC: 2025:KHC:34366 CRL.RP No. 1422 of 2018 one year along with double the fine amount is disproportionate. 13. Under these circumstances, this Court is of the view that the imprisonment has to be reduced and same has to be in default of payment of fine amount imposed by the Trial Court. 14. Hence, the following: ORDER (i) Petition is allowed-in-part. (ii) The judgment dated 31.10.2018 passed by the Sessions Judge at Udupi in Criminal Appeal No.16/2018 is modified. (iii) The judgment dated 16.01.2018 passed by the JMFC at Udupi in Criminal Case No.70/2017 is modified. (iv) Petitioner shall pay fine of Rs.4,50,000/-(inclusive of any amount in deposit made by the petitioner) - 7 - HC-KAR NC: 2025:KHC:34366 CRL.RP No. 1422 of 2018 to the complainant-respondent within two months from today failing which the petitioner shall undergo simple imprisonment for six months. (v) Amount if deposit if any, shall be released in favour of the complainant-respondent. Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS,BRN List No.: 2 Sl No.: 47