- 1 - NC: 2025:KHC-D:4685 CRL.RP No. 100188 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100188 OF 2024 (397(CR.PC)/438(BNSS)) BETWEEN: RAMESH S/O. GEMAPPA PUJAR, AGE: 51 YEARS, OCC. PRIVATE JOB, R/O. PAPANASHI TANDA, TQ. DIST. GADAG-582103. …PETITIONER (BY SRI DINESH M. KULKARNI, ADVOCATE) AND: SANTOSH S/O. SOMAPPA RATHOD, AGE: 36 YEARS, OCC. BUSINESS, R/O. PAPANASHI TANDA, TQ. DIST. GADAG-582103. …RESPONDENT (BY SRI K.S. KORISHETTAR, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED U/S. 397 R/W. SECTION 401 OF CR.P.C. 1973, SEEKING TO SET ASIDE THE JUDGEMENT AND ORDER DATED 02-01-2024 PASSED BY THE 1ST ADDL PRL. JUDGE, FAMILY COURT, AT GADAG IN CRL.APPEAL NO.21/2023 CONFIRMING THE JUDGEMENT AND ORDER OF CONVICTION DATED 20.03.2023 PASSED IN C.C.NO.1097/2020 ON THE FILE OF 2ND ADDL CIVIL JUDGE AND JMFC-II AT GADAG AS NULL AND VOID AND PETITIONER BE ACQUITTED FOR THE OFFENCE UNDER SECTION 138 OF N.I. ACT. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: V N BADIGER Digitally signed by V N BADIGER Date: 2025.03.21 10:35:10 +0530 - 2 - NC: 2025:KHC-D:4685 CRL.RP No. 100188 of 2024 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) 1. Heard Sri.Dinesh M. Kulkarni, learned counsel for the revision petitioner and Sri.K.S.Korishettar, learned counsel for the respondent. 2. Accused who suffered an order of conviction for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 (for short, ‘the N.I.Act’) in C.C.No.1097/2020 and ordered to pay fine of Rs.6,00,000/- out of which sum of Rs.5,95,000 as compensation to the complainant and balance sum of Rs.5,000/- towards defraying expenses of the State confirmed in Crl.A.No.21/2023 is the revision petitioner. 3. Facts in a nutshell for disposal of the revision petition are as under: 4. A complaint came to be lodged under Section 200 of the Criminal Procedure Code (for short, ‘the Cr.P.C’) alleging the commission of offence punishable under Section 138 of the N.I.Act, by contending that the accused - 3 - NC: 2025:KHC-D:4685 CRL.RP No. 100188 of 2024 borrowed sum of Rs.5,00,000/- as hand loan and towards the repayment, he issued the cheque bearing No.414765 dated 07.09.2020, which on presentation came to be dishonored for want of ‘insufficient funds’. 5. There was no compliance to the callings of the legal notice nor there was any reply issued to the legal notice. Therefore, complainant sought for action against the accused. 6. After complying the necessary formalities, learned Trial Magistrate summoned the accused and recorded the plea. 7. Accused pleaded not guilty. Therefore, trial was held. After due trial, accused was convicted and sentenced. 8. Being aggrieved by the same, accused filed an appeal before the District Court in Crl.A.No.21/2023. 9. Learned Judge in the first appellate Court after securing the records, heard the arguments of the parties in - 4 - NC: 2025:KHC-D:4685 CRL.RP No. 100188 of 2024 detail and on re-appreciation material available on record, dismissed appeal of the accused. 10. Thereafter, accused is before this Court in this revision petition. 11. Sri.Dinesh M Kulkarni, 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 on record and wrongly convicted the accused and sought for allowing the revision petition. 12. He would further contend that the oral testimony of D.Ws.1 and 2, is not properly considered by the learning trial Judge, especially with regard to the probative value of the documents namely Ex.D.1 which is the register and signature of DW.2 who is the society official in the register, whereby accused has established that the cheque in question was not issued as he is propounded by the complainant and sought for allowing revision petitioner. - 5 - NC: 2025:KHC-D:4685 CRL.RP No. 100188 of 2024 13. Per contra, Sri.K.S.Korishettar, learned counsel for the complainant/respondent supports the impugned orders. 14. Having heard the arguments of both sides, this Court perused the material on record meticulously. 15. On such perusal of material on record, in the case on hand, issuance of cheque and signature of the accused found therein is not in dispute. Admittedly, cheque came to be dishonored with an endorsement ‘insufficient funds’ and legal notices properly issued and there was no compliance to the legal notice nor there was any reply to the legal notice. 16. Therefore, complainant enjoyed the presumption as is contemplated under Section 139 of the N.I.Act. 17. The case of the accused is that the cheque in question is issued during the business transactions that took place between the years 2016 to 2018 and the cheque - 6 - NC: 2025:KHC-D:4685 CRL.RP No. 100188 of 2024 that was given by the accused in the business transactions has been misused by the complainant after entire amount in the cloth business is repaid. 18. To substantiate to said aspect of the matter, accused got examined himself as DW.1 and he has marked resolution book of the Society. But in his cross examination, accused admitted that Society is not a registered Society. He further admitted there after the appointment of the President to the society, there would be a proper resolution to appoint Vice President. 19. D.W.2 is examined on behalf of the accused, wherein it is contended that Society has to pay balance of Rs.11,000/- to him, for which accused issued a cheque to the Vice President vide Ex.P.1. 20. In his cross examination, he pleaded ignorance about the transaction as well as the amount mentioned in the cheque. D.W.2 was examined only to lend helping hand to the DW.1 without there being any proper documentary proof thereof. - 7 - NC: 2025:KHC-D:4685 CRL.RP No. 100188 of 2024 21. In other words, learned trial Judge did consider the effect of oral testimony of DWs.1 and 2 and the probative value of Ex.D.1 which is the register containing the resolution. 22. Admittedly, the oral testimony of DW.1 coupled with Ex.D.1 is nothing but the self serving testimony of accused. DW.2 has lent his helping hand in advancing the case of accused. It is pertinent to note that if the sum of Rs.11,000/- alone was due and when accused came to know about the presentation of cheque in a sum of Rs.5,00,000/-, why did he keep quiet without initiating any positive action against the complainant is a question that remains unanswered. 23. No normal prudent person would keep quiet if there is a misappropriation of the cheque that too in a sum of Rs.5,00,000/-. 24. Taking note of the above factual aspects in a cumulative manner, the opinion formed by the learned trial Judge that the material evidence placed on record on - 8 - NC: 2025:KHC-D:4685 CRL.RP No. 100188 of 2024 behalf of the accused is hardly sufficient to rebut the presumption available to the complainant under Section 139 of the N.I.Act, is just and proper which has been rightly reappreciated by the learned Judge in the first appellate Court. 25. Therefore, this Court, that too, in the revisional jurisdiction, cannot interfere with the well reasoned orders of High Court as well as the learned first appellate Court. 26. Further conduct of the revision petitioner in not complying the interim order passed by this Court is also a factor while appreciating the rival contentions of the parties. Taking note of these aspects of the matter, this Court is of the considered opinion that conviction order needs to be maintained. 27. Having said thus, sum of Rs.5,000/- is order to be appropriated towards the defraying expenses of the State and balance sum of Rs.5,95,000/- is order to be paid as compensation. Since lis is privy to the parties, taking note of the absence of State machinery being utilized, - 9 - NC: 2025:KHC-D:4685 CRL.RP No. 100188 of 2024 awarding sum of Rs.5,000/- towards the defraying expense of the State cannot be countenance in law and therefore, the same need to be set aside. 28. Accordingly, from the above discussion, the following order is passed. ORDER i. The revision petition is allowed in part. ii. While maintaining the conviction of the accused for the offence punishable under Section 138 of the N.I.Act, fine amount ordered by the Trial Magistrate confirmed by the first appellate Court is modified to sum of Rs.5,95,000/-. iii. Entire amount of Rs.5,95,000/- is ordered to be paid as compensation to the complainant on or before 15.04.2025. iv. Failing which accused shall undergo simple imprisonment for a period of 6 months. - 10 - NC: 2025:KHC-D:4685 CRL.RP No. 100188 of 2024 v. Sum of Rs.5,000/- awarded towards defraying expenses of the State is hereby set aside. SD/- (V.SRISHANANDA) JUDGE AC CT:PA LIST NO.: 2 SL NO.: 28