- 1 - NC: 2025:KHC-D:4894 CRL.RP No. 100025 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100025 OF 2023 (397(CR.PC)/438(BNSS)) BETWEEN: TUKKAPPA S/O. NINGAPPA MARIHUCHCHANNAVAR, AGE: 45 YEARS, OCC. AGRICULTURE/BUSINESS, R/O. UMACHAGI, HUBBALLI, DIST. DHARWAD-580024. …PETITIONER (BY SRI GIRISH V. BHAT, ADVOCATE) AND: SMT.RASHMI W/O. BASAVARAJ SANNAPPANAVAR, AGE: 28 YEARS, OCC. TAILOR, R/O. ROTTIGAWAD, KUNDAGOL, DIST. DHARWAD-580021. …RESPONDENT (BY SRI GOURI SHANKAR MOT, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 R/W. 401 OF CR.P.C. SEEKING TO ADMIT THE PETITION AND CALL FOR THE RECORDS AND ALLOW THE REVISION PETITION AND SET ASIDE THE IMPUGNED JUDGMENT PASSED BY THE V ADDL. DISTRICT AND SESSIONS JUDGE DHARWAD SITTING AT HUBBALLI IN CRL.APPEAL NO. 5025/2022 DATED 26.12.2022 DISMISSING THE APPEAL AND FURTHER SET ASIDE THE JUDGMENT AND ORDER OF SENTENCE PASSED BY THE III JMFC COURT, HUBBALLI, DATED 31.01.2022 IN C.C.NO. 851/2021, CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE U/SEC. 138 OF N.I. ACT AND IMPOSING FINE OF RS. 2,65,000/- IN DEFAULT TO PAY THE FINE AMOUNT, TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 6 MONTHS AND ACQUIT THE APPELLANT OF THE CHARGES LEVELED AGAINST HIM. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:4894 CRL.RP No. 100025 of 2023 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Sri.Girish V. Bhat, learned counsel for the revision petitioner and Sri.Gouri Shankar Mot, learned counsel for the respondent. 2. Accused who suffered an order of conviction for the offence punishable under Section 138 of the Negotiable in CC No.851/2021 which was confirmed in Criminal Appeal No.5025/2022 is the revision petitioner 3. Facts in brief which are utmost necessary for disposal of the revision petition are as under: 3.1. A complaint came to be lodged under section 200 Cr.P.C. alleging the commission of offence for the offence punishable under Section 138 of the Negotiable Instrument Act by contending that accused being acquainted with the complainant, borrowed sum of Rs.2,50,000/- as hand loan to meet his immediate domestic expenses with a promise to repay the same. 3.2. In respect of repayment of the same, he has issued a cheque bearing No.841511 dated 27.04.2021 in a sum of - 3 - NC: 2025:KHC-D:4894 CRL.RP No. 100025 of 2023 Rs.2,50,000/- drawn on Vijaya Bank, Hubballi. Said cheque on presentation came to be dishonored with an endorsement ‘stop payment’ on 29.04.2021. Thereafter, legal notice came to be issued by the complainant. There was no compliance to the callings of the notice and an untenable reply came to be filed which resulted in filing the criminal complaint by the complainant against the accused seeking for necessary orders. 4. After completing necessary formalities, learned Trial Magistrate summoned the accused and recorded the plea. Accused pleaded not guilty and therefore, trial was held. 5. In order to prove the case of the complainant, she got examined herself as P.W.1 and placed on record 8 documents which are exhibited and marked as Ex.P.1 to 8 comprising of dishonored cheque, bank endorsement, legal notice, portal receipts, acknowledgement card, reply notice and copy of the complaint in PC No.322/2021. 6. Detailed cross-examination of the complainant did not yield any positive material so as to rebut the presumption available to the complaint under Section 139 of the Negotiable Instrument Act. - 4 - NC: 2025:KHC-D:4894 CRL.RP No. 100025 of 2023 7. Thereafter, learned Trial Magistrate recorded the accused statement as is contemplated under Section 313 Cr.P.c. wherein accused has denied the incriminatory circumstances. 8. In order to rebut the presumption available to the complainant under Section 139 of Negotiable Instruments Act, accused got examined himself as D.W1 and placed on record letter dated 14.12.2020 which is a ‘stop payment’ instruction issued to the Bank of Baroda. 9. Thereafter, learned Trial Magistrate heard the arguments of both sides and on cumulative consideration of the oral and documentary evidence placed on record did not find that the material evidence placed on record on behalf of the accused is sufficient enough to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act and convicted the accused and imposed fine in a sum of Rs.2,65,000/- out of which sum of Rs.2,60,000/- is to be paid as compensation to the complainant and balance sum of Rs.5,000/- towards defraying expenses of the State. 10. Being aggrieved by the same, accused filed an appeal before the First Appellate Court in Crl.A.No.5025/2022. - 5 - NC: 2025:KHC-D:4894 CRL.RP No. 100025 of 2023 11. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and in the light of the appeal grounds and on reappreciation of the material evidence placed on record, dismissed the appeal on merits and upheld the order of conviction. 12. Being further aggrieved by the same, accused is before this Court, in this revision. 13. Sri.Girish V. Bhat, learned counsel for the revision petition reiterating the grounds urged in the revision petition contended that accused has already issued ‘stop payment’ instructions to the Bank of Baroda on 04.12.2020 itself. Therefore, question of accused issuing a cheque on 27.04.2021 to the complainant would not arise at all. But said aspect of the matter is not properly appreciated by both the Courts while recording an order of conviction and thus, sought for allowing the revision petition. 14. He would further contend that very fact that cheque came to be dishonored with an endorsement ‘stop payment’ by the drawer much earlier; itself shows that complainant was not - 6 - NC: 2025:KHC-D:4894 CRL.RP No. 100025 of 2023 entitled to recover any money under Ex.P.1 – cheque and sought for allowing the revision petition. 15. Per contra, Sri.Gouri Shankar Mot, learned counsel for the respondent invited the attention of this Court that question of issuance of the cheque was not in dispute and in the reply notice, accused has admitted that the cheque was issued for the security purpose. 16. He also submits that even the cheque issued for the security purpose, if gets dishonored, is also an offence under Section 138 of the Negotiable Instruments Act and therefore, sought for dismissal of the revision petition. 17. Having heard the parties in detail, this Court perused the material on record meticulously. 18. On such perusal of the material on record, it is crystal clear that Ex.P.1 belongs to revision petitioner and signature found there in is that of the revision petitioner. Ex.D.1 is the ‘stop payment’ instruction that has been issued by the revision petitioner. In the said instruction, he has stated that cheque got misplaced in Gadag while travelling. - 7 - NC: 2025:KHC-D:4894 CRL.RP No. 100025 of 2023 19. However, in the reply notice revision petitioner has stated that he has issued the cheque to the complainant for the purpose of security. Nothing prevented the revision petitioner to spell out that he has issued ‘stop payment’ instruction to the bank on 04.12.2020 itself as he has lost the cheque in the reply notice. 20. Further, if there is misuse of the cheque, it was always open for the revision petitioner to file necessary criminal complaint against the complainant seeking action for the misappropriation of the cheque. No such positive action has been taken place by the revision petitioner against the complainant even after he came to know that there is a complaint filed against him. 21. It could have been spelt out in the reply notice itself that the cheque is misused by the complainant. No such plea is also taken by the revision petitioner. 22. Taking note of these aspects of the matter, merely on the ground that revision petitioner has issued stop payment instructions, would not absolve the liability of the revision petitioner. - 8 - NC: 2025:KHC-D:4894 CRL.RP No. 100025 of 2023 23. Moreover, as on the date of dishonor of the cheque, there was no sufficient balance in the SB Account maintained by the revision petitioner so as to direct the banker to return the cheque on account of stop payment. 24. Therefore, following settled principles of law, the learned Trial Magistrate has rightly convicted the revision petitioner which has been rightly reappreciated by the learned Judge in the First Appellate Court. 25. As such, having regard to the limited scope of revisional jurisdiction, this Court cannot revisit into the factual aspects while considering the revision grounds. Hence, conviction of the revision petitioner is to be maintained. 26. However, it is noticed that sum of Rs.5,000/- is ordered to be paid as defraying expenses to the State. Same needs interference by this Court in this revision in view of the fact that lis is privy to the parties and no State machinery is involved. 27. In view of the foregoing discussions, following: - 9 - NC: 2025:KHC-D:4894 CRL.RP No. 100025 of 2023 ORDER i. Criminal revision petition is allowed in part. ii. While maintaining the order of conviction for the offence punishable under Section 138 of the Negotiable Instruments Act, fine amount ordered by the learned Trial Magistrate confirmed by the First Appellate Court in a sum of Rs.2,65,000/- is reduced to sum of Rs.2,60,000/-. iii. Entire sum of Rs.2,60,000/- is ordered to be paid as compensation to the complainant failing which the revision petitioner shall undergo simple imprisonment as ordered by the learned Trial Magistrate. iv. Sum of Rs.5,000/- to be paid towards defraying expenses of the State is hereby set aside. v. Time is granted for the revision petitioner to pay the amount till 30.04.2025. vi. 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.: 7