- 1 - NC: 2025:KHC-D:4457 CRL.RP No. 100222 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100222 OF 2023 (397(CR.PC)/438(BNSS)) BETWEEN: SHIVARAJ S/O. PARAMEHSWARAPPA ANGADI, AGE: 55 YEARS, OCC. BUSINESS AND REAL ESTATE AGENT, R/O. KALANGI, TQ. SIRSI, DIST. UTTARA KANNADA-581358. …PETITIONER (BY SRI VISHWANATH HEGDE, ADVOCATE) AND: SHIVANANDA S/O. HONNAPPA DODDAMANI, AGE: 65 YEARS, OCC. AGRICULTURIST, R/O. SHIRAMAPURA, TQ. HANGAL, DIST. HAVERI-581104. …RESPONDENT (BY SRI SIDDAPPA S. SAJJAN, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 R/W. 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS IN CRIMINAL APPEAL NO. 72/2022 ON THE FILE OF ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-I, HAVERI, AND RECORDS IN C.C.NO. 48/2016 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC HANGAL AND SET ASIDE THE JUDGMENT DATED 08.02.2023 PASSED BY ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-I, HAVERI IN CRIMINAL APPEAL NO. 72/2022 CONSEQENTLY SET ASIDE THE JUDGMENT DATED 22.08.2022 PASSED IN C.C.NO.48/2016 BY SENIOR CIVIL JUDGE AND JMFC HANGAL FOR THE OFFENCE P/U/SEC. 138 OF NI ACT. V N BADIGER Digitally signed by V N BADIGER Date: 2025.03.18 15:26:20 +0530 - 2 - NC: 2025:KHC-D:4457 CRL.RP No. 100222 of 2023 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Sri.Vishwanath Hegde, advocate for petitioner and Sri.Siddappa S. Sajjanavar, advocate for respondent. 2. Though the matter is listed for admission, by the consent of the parties, matter is taken up for final disposal. 3. Accused who suffered an order of conviction in CC No.48/2016 after due trial for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short hereinafter ’NI Act”) and directed to pay a sum of Rs. 5,10,000/- as fine amount, as against the cheque amount of Rs.4,00,000/- and ordered sum of Rs.5,08,000/- as the compensation to the complainant and sum of Rs.2,000/- towards the defraying expenses of the State, which got confirmed in Crl.A.No.72/2022 is the revision petitioner. - 3 - NC: 2025:KHC-D:4457 CRL.RP No. 100222 of 2023 4. Facts in the nutshell which are utmost necessary for disposal of the revision petition are as under: 4.1 A complaint came to be lodged under Section 200 of Cr.P.C., alleging the commission of the offence under Section 138 of NI Act by contending that complainant is a resident of Srirampura village, Hangal Taluk and he is an agriculturist by profession. He owns eight acres of irrigated land in Samvasagi village, Hangal taluk wherein he has grown sugarcane, cotton, paddy, maize and other crops and he had annual income of Rs.6 lakhs to 7 lakhs from agriculture. Apart from agriculture, complainant has also indulged in the business of real estate. Accused used to visit Hangal sub-registrar office regularly and in that connection there was a introduction of complainant to the accused in respect of real estate business. 4.2 During such acquaintance, accused offered a proposal to the complainant for sale of 4 acres of landed property, out of 11 acres, 33 guntas in land bearing - 4 - NC: 2025:KHC-D:4457 CRL.RP No. 100222 of 2023 Re.Sy.No.171/E/2 of Huluginakoppa village owned by Prabhakara Narayana Hegde for a sum of Rs.10,00,000/-. 4.3 In that connection there was a meeting with Prabhakara Narayana Hegde on 08.11.2010 and talks with regard to the same were held in the presence of Ramanna Tippanna Taravanda and Riyazahamad Babajanasab Kundagola of Desai kallapura village. At that juncture, to set right the documents, sellers wanted some time. In the month of April-2014, accused met the complainant and a sum of Rs.4,00,000/- was taken by accused as hand loan to meet his immediate requirements with a promise to repay the same. 4.4 When there is no repayment made by the accused as demanded. Ultimately, accused issued a cheque bearing No.114365 dated 14.08.2014 drawn on State Bank of India, Malagi branch which on presentation came to be dishonoured with an endorsement “funds insufficient”. Legal notice was issued on 26.08.2014 which was refused by the accused and there was no compliance to the callings of notice nor there any reply. - 5 - NC: 2025:KHC-D:4457 CRL.RP No. 100222 of 2023 4.5 As such complainant sought action against the accused for the offence under Section 138 of the NI Act. 5. Learned trial judge after completing necessary formalities summoned the accused. Learned trial judge thereafter followed the dictum of Hon’ble Apex Court in the case of Indian Bank Association and others Vs. Union of India and others1 and treated the sworn statement affidavit as the examination in chief. On behalf of the complainant one of the mediator was present at the time of talks viz., Riyaz Babajanasab Kundagola was examined as PW2. 6. Accused did not place any defense evidence and in accused statement, denied the incriminating materials. Thereafter learned trial Magistrate heard the parties and on considering the oral and documentary evidence placed on record convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced as referred supra. 1 (2014) 5 SCC 590 - 6 - NC: 2025:KHC-D:4457 CRL.RP No. 100222 of 2023 7. Being aggrieved by the same, accused filed an appeal before the District Court in Crl.A.No.72/2022. 8. Learned judge in the First Appellate Court after securing the records, heard the arguments of both sides and dismissed the appeal filed by the accused. Thereafter, accused is before this Court in this revision petition. 9. Sri.Vishwanath Hegde, learned counsel appearing for the accused has reiterated the grounds urged in the revision petition and contended that even in the absence of any defence evidence placed on record, accused can demonstrate from the material placed on record, especially the cross examination of the prosecution witnesses which would be sufficient enough to rebut the presumption available to the complainant under Section 139 of NI Act following the legal principles enunciated in the case of Rohitbhai Jivanlal Patel Vs. State of Gujarath.2 and therefore, this Court may consider the 2 2019(18) SCC 106 - 7 - NC: 2025:KHC-D:4457 CRL.RP No. 100222 of 2023 material placed on record and set aside the judgment of both the Courts by allowing the revision petition. 10. Per contra, Sri Siddappa Sajjan, learned counsel for respondent supports the impugned order. 11. Having heard the parties in detail, this Court perused the material on record meticulously. 12. On perusal of the material on record, it is crystal clear that the cheque is issued by the accused and signatures found therein are that of the accused is not in dispute. Cheque admittedly came to be dishonoured with an endorsement ‘funds insufficient’. Legal notice is refused by the accused. There was no compliance to the notice nor reply being sent to the legal notice, complainant has fulfilled all necessary requirements to draw presumption under Section 139 of NI Act. 13. No doubt, the presumption under Section 139 of NI act is a rebuttable presumption. In order to rebut the presumption, in every case, there is no need for the - 8 - NC: 2025:KHC-D:4457 CRL.RP No. 100222 of 2023 accused to enter the witness box and place evidence. Evidence otherwise placed on record in the form of cross examination of complainant witnesses and documentary evidence can be made use of for rebuttal of permission. Then the onus again shifts on the complainant to place additional evidence. 14. Applying of such test to the case on hand, in the cross-examination of PW-1 and 2 except suggesting that a false case has been foisted against the accused, no other material evidence is placed on record. 15. When once the cheque is admitted and signature is not disputed, necessarily the accused has to be entered into witness box and then depose before the Court under what circumstances he parted away with the cheque. 16. In the absence of any such rebuttal evidence placed on record, Trial Judge drawing presumption under Section 139 of NI Act and learned Judge in the First - 9 - NC: 2025:KHC-D:4457 CRL.RP No. 100222 of 2023 Appellate Court on re-appreciating the material on record conviction being maintained, needs no interference by this Court. 17. Further, as against the cheque amount of Rs.4,00,000/-, learned Trial Judge has awarded a sum of Rs.5,10,000/- as the compensation of which a sum of Rs.2,000/- was ordered to be paid as defraying expenses of the State. 18. Awarding a sum of Rs.2,000/- towards defraying expenses of the State cannot be countenanced in law in view of the fact that the lis is privy to the parties and no State machinery is involved. Accordingly, the said portion of the sentence needs to be set aside. Taking note of the fact that the cheque is issued in the year 2014, reducing the fine amount from Rs.5,08,000/- to Rs.5,00,000/- would meet the ends of justice. Accordingly, the following : - 10 - NC: 2025:KHC-D:4457 CRL.RP No. 100222 of 2023 ORDER (i) Criminal Revision Petition is allowed in part. (ii) While maintaining the conviction of the accused for the offence punishable under Section 138 of NI Act, fine amount of Rs.5,10,000/- ordered by the Trial Magistrate confirmed by the First Appellate Court is reduced to Rs.5,00,000/-. (iii) Entire sum of Rs.5,00,000/- is ordered to be paid as compensation to the complainant on or before 15.04.2025, failing which, the accused shall undergo Simple imprisonment for a period of one year. (iv) A sum of Rs.2,000/- ordered by the Trial Magistrate confirmed by the First Appellate Court towards the defraying expenses of the State is set aside. (v) The amount in deposit is ordered to be withdrawn by the complainant under due identification. - 11 - NC: 2025:KHC-D:4457 CRL.RP No. 100222 of 2023 Office is directed to return the Trial Court records with a copy of this order for issue of modified conviction order. SD/- (V.SRISHANANDA) JUDGE HMB/NAA CT:PA LIST NO.: 2 SL NO.: 20