- 1 - NC: 2025:KHC-D:6078 CRL.RP No. 100088 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100088 OF 2022 (397(CR.PC)/438(BNSS)) BETWEEN: SRI H. GANGANNA S/O. MALLAYYA, AGE: 43 YEARS, OCC. JSW EMPLOYEE, R/O. VIDYANAGAR, TORNAGALLU, BALLARI-583123, TQ. AND DIST. BALLARI. …PETITIONER (BY SRI H.R. DESHPANDE, ADVOCATE) AND: SRI S. PRAKASH S/O. SHARANAPPA, AGE: 41 YEARS, OCC. BUSINESSMAN, R/O. PLOT NO.32, SREE KOTRESHWARA BADAVANE LAYOUT, 16TH CROSS, TALUR ROAD, BALLARI-583103, TQ. AND DIST. BALLARI. …RESPONDENT (BY SRI S.B. PATIL, ADVOCATE FOR SRI SADIQ N. GOODWALA, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W. 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS OF THE COURTS BELOW AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 03.04.2019 PASSED BY THE CIVIL JUDGE AND JMFC SANDUR IN C.C.NO.683/2015 AND THE JUDGMENT AND ORDER PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, (COMMERCIAL COURT) BALLARI IN CRL.APP.NO.26/2019 DATED 07.01.2022 AND TO ACQUIT THE PETITIONER FOR THE OFFENCE UNDER SECTION 138 OF THE N.I. ACT. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.04.09 11:34:16 +0530 - 2 - NC: 2025:KHC-D:6078 CRL.RP No. 100088 of 2022 THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Sri.H.R.Deashpande, learned counsel for the revision petitioner and Sri.S.B.Patil, learned counsel appearing on behalf of Sri.Sadiq N. Goodwala, learned counsel for the respondent. 2. Accused who has suffered an order of conviction in CC No.683/2015 dated 03.04.2019 for the offence punishable under Section 138 of the Negotiable Instruments Act and was ordered to pay compensation in a sum of Rs.82,500/- which is the cheque amount and sum of Rs.5,000/- towards defraying expenses of the State which was confirmed in Crl.A.No.26/2019 dated 07.01.2022 is the revision petitioner. 3. Facts in brief which are utmost necessary for disposal of the revision petition are as under: - 3 - NC: 2025:KHC-D:6078 CRL.RP No. 100088 of 2022 3.1. A complaint came to be lodged under Section 200 of Cr.P.C. alleging the commission of the offence for the offence punishable under Section 138 of the Negotiable Instruments Act contending that complainant and accused are well acquainted with each other and in that acquaintance, accused borrowed sum of Rs.82,500/- as a hand loan in first week of January, 2015 agreeing to repay the same within two months. 3.2. Towards repayment of the loan amount, accused issued a cheque bearing No.425562 dated 04.03.2015 drawn on State Bank of Mysore, Torangallu Branch. Said cheque on presentation came to be dishonored with an endorsement ‘funds insufficient’. Callings of the legal notice was not complied but an untenable reply was sent. Therefore, complainant sought for action against the accused for the aforesaid offence. 4. After completing necessary formalities, learned Trial Magistrate summoned the accused and after due trial, accused was convicted as aforesaid. As could be - 4 - NC: 2025:KHC-D:6078 CRL.RP No. 100088 of 2022 seen from the oral evidence of D.W.1, accused contended that cheque was not issued for the legally recoverable debt. 5. Learned counsel for the accused placed reliance on several judgments to substantiate the stand taken by the accused. However, learned Trial Magistrate noted that in the cross-examination of D.W.1, accused admitted that Ex.P.1 – cheque belongs to him and also admitted his signature in Ex.P.1. 6. But the defence of the accused is that cheque was actually issued in favour of Ravikumar which has been misused by the complainant is not substantiated by placing necessary evidence on record. 7. Being aggrieved by the same, accused filed an appeal before the First Appellate Court in Crl.A.No.26/2019. 8. Learned Judge in the First Appellate Court on reappreciation of the material evidence placed on record, - 5 - NC: 2025:KHC-D:6078 CRL.RP No. 100088 of 2022 upheld the order of conviction by dismissing the appeal filed by the accused. 9. Being further aggrieved by the same, accused is before this Court, in this revision. 10. Learned counsel for the revision petitioner reiterating the grounds urged in the revision petition contended that both the Courts have not properly appreciated the material evidence placed on record resulting in miscarriage of justice and sought for allowing the revision petition. 11. He would further contend that mere admission of the accused about the cheque belonging to him and signature found therein would not ipso facto result in a presumption that accused had issued a cheque to the hands of the complainant towards legally recoverable debt. In this regard, there is no proper evidence placed on record on behalf of the complainant which has been ignored by the learned Trial Magistrate and learned Judge - 6 - NC: 2025:KHC-D:6078 CRL.RP No. 100088 of 2022 in the First Appellate Court while passing an order of conviction and upholding the same and thus, has resulted in miscarriage of justice and sought for allowing the revision petition. 12. Per contra, learned counsel for the respondent supports the impugned judgments. 13. Having heard the arguments of learned counsel for the revision petitioner, this Court perused the material on record meticulously. 14. On such perusal of the material on record, following points would arise for consideration: 1. Whether the revision petitioner makes out a case that impugned judgments are suffering from legal infirmity and perversity and thus, calls for interference? 2. Whether the sentence is excessive? 3. What order? - 7 - NC: 2025:KHC-D:6078 CRL.RP No. 100088 of 2022 REG.POINT No.1: 15. In the case on hand, admittedly, cheque marked at Ex.P.1 belongs to the accused and signature found therein is that of the accused is not in dispute. 16. Defence taken by the accused is that cheque was not issued for legally recoverable debt to the hands of the complainant and it was actually issued to Ravikumar; who in turn, colluded with the complainant and a false case has been foisted against the accused. 17. To substantiate said aspect of the matter, accused did not summon said Ravikumar as a witness on his behalf. Further, when the accused came to know about the misuse of the cheque by Ravikumar, he did not take any positive action by filing criminal case against Ravikumar and the complainant. 18. Under such circumstances, defence taken by the accused remains defence on record without there being any plausible proof placed on record. Mere - 8 - NC: 2025:KHC-D:6078 CRL.RP No. 100088 of 2022 testimony of the accused by way of examining himself as D.W.1 would not be sufficient enough to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act which has been rightly appreciated by the learned Trial Magistrate and reappreciated by learned Judge in the First Appellate Court. 19. Therefore, this Court is of the considered opinion that order of conviction recorded by both the Courts needs no interference in the facts and circumstances of the case on hand. Accordingly, point No.1 is answered in negative. REG.POINT No.2: 20. In the case on hand, sum of Rs.82,500/- is ordered as compensation the complainant by the learned Trial Magistrate which is the cheque amount. However, awarding sum of Rs.5,000/- towards defraying expenses of the State cannot be countenanced in law inasmuch as - 9 - NC: 2025:KHC-D:6078 CRL.RP No. 100088 of 2022 lis is privy to the parties and no State machinery is involved in conducting of the criminal case. Accordingly, same needs to be set aside. Accordingly, point No.2 is answered partly in the affirmative. REG.POINT No.3: 21. In view of the findings of this Court on point Nos.1 and 2 as above, following: ORDER i. Revision petition is allowed in part. ii. While maintaining the conviction of the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, fine amount of Rs.5,000/- imposed by the learned Trial Magistrate confirmed by the First Appellate Court towards defraying expenses of the State is hereby set aside. iii. Order regarding payment of compensation in a sum of Rs.82,500/- ordered by the learned - 10 - NC: 2025:KHC-D:6078 CRL.RP No. 100088 of 2022 Trial Magistrate confirmed by the First Appellate Court is kept intact. iv. Time is extended for the revision petitioner to pay the amount till 30.04.2025 failing which the revision petitioner shall undergo simple imprisonment for a period of six months. Office is directed to return the Trial Court Records with copy of this order forthwith. SD/- (V.SRISHANANDA) JUDGE KAV CT:PA LIST NO.: 2 SL NO.: 47