- 1 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100028 OF 2018 (397(CR.PC)/438(BNSS)) BETWEEN: ABHINEESH S/O. MANJUNATH, AGE: 31 YEARS,OCC. BUSINESS, R/O. "SAI ASHIRWAD", OPP. DR. BHAGAWAT SKIN HOSPITAL, NEAR HUDA OFFICE, SHANTHI NAGAR, HOSAPETE. …PETITIONER (BY SRI V.M. SHEELVANT AND SRI M.L. VANTI, ADVOCATES) AND: GUJJAL GANESH S/O. SMT. G.HULIGAMMA, AGE: 31 YEARS, OCC. AGRICULTURIST, R/O. MYASAKERE, 33RD YARD, HOSAPETE, DIST. BALLARI. …RESPONDENT (BY SRI VYAS DESAI, ADVOCATE FOR SRI JAGADISH PATIL, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF CR.PC., PRAYING TO CALL FOR RECORDS, ALLOW THE REVISION PETITION AND SET ASIDE THE ORDER DATED 29.12.2017 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, BALLARI, SITTING AT HOSAPETE, IN CRIMINAL APPEAL NO.5027/2016 AND THE ORDER PASSED BY THE PRL. SENIOR CIVIL JUDGE AND JMFC, BALLARI IN C.C.NO.94/2013 (OLD NO.48/2013) DATED: 14.03.2016 FOR OFFENCE PUNISHABLE U/S.138 OF N.I.ACT AND SET THE PETITIONER AT LIBERTY. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: V N BADIGER Digitally signed by V N BADIGER Date: 2025.03.29 11:41:55 +0530 - 2 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Sri.V.M.Sheelvant and Sri.M.L.Vanti, learned counsel for the petitioner and Sri.Vyas Desai, learned counsel appearing on behalf of Sri.Jagadish Patil, learned counsel for the respondent. 2. Accused who has suffered an order of conviction in CC No.94/2013 (old No.48/2013) for the offence punishable under Section 138 of the Negotiable Instruments Act which was confirmed in Crl.A.No.5027/2016 is the revision petitioner. 3. Brief facts of the case which are utmost necessary for disposal of the revision petition are as under: 4. A private complaint came to be lodged under Section 200 of Cr.P.C. alleging the commission of offence under Section 138 of the Negotiable Instruments Act as the cheque issued by the accused towards legally recoverable debt came to be dishonored with an - 3 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 endorsement ‘funds insufficient and payment stopped by the drawer’. Thereafter, complainant issued a legal notice on 30.08.2012 calling upon the accused to make good the payment. There was no compliance to the callings of the legal notice. Therefore, complainant sought for action against the accused. 5. After completing necessary formalities, learned Trial Magistrate summoned the accused and recorded the plea. Accused pleaded not guilty and therefore, trial was held. 6. In order to prove the case of the complainant, he got examined himself as P.W.1 and one more witness as P.W.2 and placed on record 16 documents which were exhibited and marked as Ex.P.1 to 16. 7. 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. 8. Thereafter, learned Trial Magistrate recorded the accused statement as is contemplated under Section - 4 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 313 Cr.P.c. wherein accused has denied the incriminatory circumstances. 9. 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 four documents which were exhibited and marked as Exs.D.1 to D.4. 10. Thereafter, learned Trial Magistrate heard the arguments of both sides and on cumulative consideration of the oral and documentary evidence placed on record convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act noting the fact that the defence evidence placed on record was not sufficient enough to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act and as against the cheque amount of Rs.8,00,000/-, learned Trial Magistrate has imposed 9,25,000/- as fine amount, out of which sum of Rs.9,00,000/- is ordered to be paid as compensation to - 5 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 the complainant and balance sum of Rs.25,000/- towards defraying expenses of the State. 11. Being aggrieved by the same, accused filed an appeal before the First Appellate Court in Crl.A.No.5027/2016. 12. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the material evidence placed on record, found that impugned judgment does not suffer from any factual error or legal infirmity and dismissed the appeal filed by the accused. 13. Being further aggrieved by the same, accused is before this Court, in this revision. 14. Learned counsel for the petitioners reiterating the grounds urged in the revision petition vehemently contended that both the Courts have erred in law in wrongly convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act resulting in miscarriage of justice and sought for allowing the revision petition. - 6 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 15. Per contra, learned counsel for the respondent supports the impugned judgments by contending that cheque came to be issued for legally recoverable debt which admittedly came to be dishonored and therefore, learned Trial Magistrate was justified in convicting the accused. 16. He also pointed out that to substantiate that the complainant has lent the money, accused has placed on record income tax returns for the relevant years to establish the lending capacity of the complainant but also reflecting the transaction in income tax returns and therefore, revision petition is meritless and sought for dismissal of the revision petition. 17. Having heard the arguments of both sides, this Court perused the material on record meticulously. On such perusal of material on record, following points would arise for consideration: i. Whether revision petitioner would make out the case that the impugned judgment are suffering from legal infirmities, perversity and patent factual error and sought for interference? - 7 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 ii. Whether the sentence needs modification? iii. What order? REGARDING POINT NO.1: 18. In the case on hand, issuance of the cheque and the signature of the accused in the said cheque is not in dispute. 19. Admittedly, cheque came to be dishonored with endorsement “funds insufficient” and payment was stopped by the drawer. Legal notice came to be issued on 30.08.2012. According to the complainant, there was no reply notice. However, the copy of the reply notice that is placed on record by the accused and the postal acknowledgement for having served the Ex.D.3 is copy of the reply notice and postal acknowledgement is marked as Ex.D.4. Accused was required to rebut the presumption available to the complainant under Section 139 of the N.I.Act. To establish the same, accused got examined himself as DW.1 and placed on record 4 documents. Learned trial Judge did taking into consideration the oral - 8 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 testimony of DW.1 coupled with the document that is placed on record in the impugned judgment. 20. In paragraph No.20 which is culled out hereunder for the ready reference: “20. In the present case on hand, the accused has simply stated that he had handed over 7 cheques in a transaction that took place with his wife etc., The complainant has examined P.W.2 B Murali, before the Court who has stated that accused has borrowed money from him in a sum of Rs.5.00.000/- and repaid Rs.3.50.000/- and accused is still due etc.. On the other hand, the accused states that he has lent money to P.W.2. There is absolutely no documents produced in this regard. The accused has produced Exs.D. 1 to 4 before the Court. Ex.D.1 shows that on behalf of his wife reply notice is issued to one Jambaiah Advocate. On going through the same, there is no reference to the present cheque number in any manner. The cheque number mentioned therein are totally different which never shows the present cheque number. The other documents are reply to notice sent by the wife of the accused to one B.Manjunatha. Advocate. On going through these Legal - 9 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 Notices, the present cheque number is not at all mentioned. If really blank cheques are given as alleged by the accused he would have stated cheque numbers in the reply notices Exs.D.1 and 3. Even, the counterfoils are not produced before the Court.” 21. On perusal of the oral testimony of DW.1, the learned trial Judge found that oral testimony of the accused was not sufficient to rebut the presumption available to the complainant under Section 139 of the N.I.Act. 22. Since the discharge is pleaded by the accused, it was required for the accused to establish the same. Insofar as the lending capacity of the complainant, there is a detailed discussion by the learned trial Judge in paragraph No.22. 23. Moreover, following the dictum of the Hon’ble Apex Court in the case of Rajesh Jain Vs. Ajay Singh1, the burden is entirely on the accused to establish the same wherein the Hon’ble Apex Court has taken into 1 2023 (4) KCCR 3314 (SC) - 10 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 consideration principles of law enunciated by Honb’e Apex Court in the case of Basalingappa Vs. Mudibasapp2. 24. Therefore, having regard to the limited rivisional jurisdiction, this Court is of the considered opinion that conviction order recorded by trial Magistrate and confirmed by the First Appellate Court needs no interference. Accordingly, Point No.1 is answered in the negative. REGARDING POINT NO.2: 25. In the case on hand, learned trial Judge as against the cheque amount of Rs.8,00,000/- has awarded fine amount of Rs.9,25,000/- out of the sum of Rs.25,000 is ordered to be appropriated towards the defraying expenses of the State which is impermissible having regard to the fact that lis is Privy to the parties and no State machinery is involved. 2 AIR 2019 SC 1983 - 11 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 26. Hence, same needs to be interfering in this revisional jurisdiction. Accordingly Point No.2 is answered partly in the affirmative. REGARDING POINT NO.3: 27. In view of the findings of this Court on points No.1 and 2 as above, the following order is passed. 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 the N.I.Act fine amount of Rs.9,25,000/- is reduced to Rs.9,00,000. (iii) Entire sum of Rs.9,00,000/- is order to be paid as compensation to the complainant. (iv) Accused is granted time to pay the balance fine amount till 30.04.2025. Failing which shall undergo simple imprisonment as ordered by trial Magistrate. (v) After the payment of the fine amount sum of Rs.25,000/- is awarded by trial Magistrate confirmed by the First Appellate Court - 12 - NC: 2025:KHC-D:4967 CRL.RP No. 100028 of 2018 towards defraying expenses of the State is hereby set aside (vi) Office to return the Trial Court records along with a copy of this order for issuance of modified conviction warrant. SD/- (V.SRISHANANDA) JUDGE KAV/AC CT:PA LIST NO.: 2 SL NO.: 51