- 1 - NC: 2025:KHC-D:3479 CRL.RP No. 100132 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL REVISION PETITION NO.100132 OF 2023 [397(Cr.PC)/438(BNSS)] BETWEEN: SMT.PARVEEN D/O. GUDUSAB MULLA, AGE: 38 YEARS, OCC. PRIVATE SERVICE, R/O. HOUSE NO.2059, DANDELI-581325, TQ: HALIYAL, DIST: UTTARA KANNADA. … PETITIONER (BY SRI VIJAYKUMAR B.HORATTI, ADVOCATE) AND: SRI GULZAR W/O. ISAQ SHAIKH, AGE: 45 YEARS, OCC. HOUSEHOLD WORK, R/O. HOUSE NO.245/1, AZAD NAGAR, DANDELI-581325, TQ. HALIYAL, DIST. UTTARA KANNADA. … RESPONDENT (BY SRI LINGESH V. KATTEMANE, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH UNDER SECTION 401 OF CR.P.C. SEEKING TO CALL FOR RECORDS AND MODIFY THE ORDER DATED 01.07.2022 PASSED IN CRIMINAL APPEAL NO.5039/2021 FOR THE OFFENCE UNDER SECTION 138 OF N.I.ACT ON THE FILE OF THE COURT OF I ADDL. DISTRICT AND SESSIONS JUDGE, U.K. KARWAR, SITTING AT SIRSI AND CONFIRM THE JUDGMENT PASSED IN CC NO.75/2016 DATED 18.08.2021 BY CIVIL JUDGE AND J.M.F.C. AT DANDELI. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.02.21 14:52:20 +0530 - 2 - NC: 2025:KHC-D:3479 CRL.RP No. 100132 of 2023 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) Challenging order dated 01.07.2022 passed by I Additional District and Sessions Judge, Uttara Kannada, Karwar sitting at Sirsi in Crl.A.no.5039/2021 and seeking for modification of order, this revision petition is filed by complainant. 2. Sri Vijaykumar B. Horatti, learned counsel for petitioner submitted that a private complaint was filed under Section 200 of Cr.P.C. alleging that respondent (accused) had borrowed hand-loan of Rs.1,50,000/- from complainant (petitioner) on 28.09.2015 agreeing to repay same within six months and after expiry of same, when petitioner sought refund, had issued cheque no.235482 dated 18.04.2016 drawn on Canara Bank, Dandeli Branch in favour of petitioner. But when presented for encashment on same day, cheque had returned dishonored with endorsement ‘insufficient funds’. It was further submitted accused failed to repay amount even after receipt of legal notice got issued on 20.04.2016, served on accused on 21.04.2016. Therefore offence under Section - 3 - NC: 2025:KHC-D:3479 CRL.RP No. 100132 of 2023 138 of Negotiable Instruments Act, 1881 (‘NI Act’ for short) was committed. 3. On issuance of summons, accused appeared and denied charges and sought to be tried. 4. Petitioner examined himself as PW.1 and another witness as PW.2 and got marked Exs.P.1 to P.5. 5. After due compliance with requirement under Section 313 of Cr.P.C. and taking note of fact that no oral or documentary evidence was led by accused, trial Court proceeded to convict accused for offence punishable under Section 138 of NI Act and sentenced him to simple imprisonment for one day till rising of Court and directed him to pay fine of Rs.2,50,000/- out of which Rs.1,50,000/- was to be paid to petitioner and in default, accused was ordered to undergo simple imprisonment for a period of three months. 6. It was submitted, aggrieved by same, accused filed Crl.A.no.5039/2021 before I Additional District and Sessions Judge Uttara Karnataka, Karwar sitting at Sirsi. Under impugned judgment, learned District Judge proceeded to allow appeal in part and reduced order of sentence from - 4 - NC: 2025:KHC-D:3479 CRL.RP No. 100132 of 2023 Rs.2,50,000/- to Rs.1,60,000/- out of which Rs.1,50,000/- was to be paid to petitioner and remaining of Rs.10,000/- to State. Same was illegal and unsustainable. 7. Learned counsel submitted even though order of conviction was confirmed by modification of amount of fine, Appellate Court was not justified in not imposing any order of sentence in default of payment of fine. On above grounds sought for allowing petition. 8. On other hand Sri Lingesh V. Kattemane, learned counsel for accused sought to support impugned order. It was submitted Appellate Court on due consideration found justification to reduce sentence of fine from Rs.2,50,000/- to Rs.1,60,000/- as amount mentioned in cheque Rs.1.50.000/-, though there was no scope for interference. 9. Heard learned counsel. 10. From above, only point that would arise for consideration is: “Whether Appellate Court justified in modifying order of sentence passed by trial Court by reducing fine amount and omitting default sentence? - 5 - NC: 2025:KHC-D:3479 CRL.RP No. 100132 of 2023 11. From above, it is seen revision petition is filed on two main contentions. One as regards reduction of fine amount and other omission of default sentence. 12. Insofar as reduction of fine amount, admittedly amount mentioned in cheque was for Rs.1,50,000/-. While passing order of conviction, trial Court had not accorded elaborate reasons for passing sentence for Rs.2,50,000/-. Appellate Court, found fit to reduce fine amount from Rs.2,50,000/- to Rs.1,60,000/- and has assigned sufficient reasons for same and re-appreciation of material on record. 13. In view of above, order of modification passed by Appellate Court in exercise of appellate jurisdiction cannot be held to be perverse, capricious or illegal and therefore there would be no scope for interference of this count. 14. Insofar as omission of default sentence, it is seen that Appellate Court sustained order of conviction and modification was only to extent of reduction of fine amount. Perusal of order passed by Appellate Court does not indicate any reason for omission of default sentence. It is seen that accused has not paid fine amount, apparently due to lack of - 6 - NC: 2025:KHC-D:3479 CRL.RP No. 100132 of 2023 default sentence. Even during pendency of this revision petition accused has not paid amount. Under above circumstances, point for consideration is answered partly in affirmative. Consequently, following: ORDER a. Revision petition is allowed in part. b. Impugned order dated 01.06.2022 passed in Crl.A.no.5039/2021 by Appellate Court is modified by adding following to same : “In default of payment of the fine the accused shall undergo simple imprisonment for a period of 3 months.” SD/- (RAVI V.HOSMANI) JUDGE EM CT:PA:List No.: 1 Sl No.: 22