- 1 - NC: 2025:KHC-D:4374 CRL.RP No. 100029 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100029 OF 2019 (397(Cr.PC)/438(BNSS)) BETWEEN: SHRI VINODKUMAR S/O. GOPILAL VISHNOI, AGE: 41 YEARS, OCC: BUSINESS, R/O: C/O. ASHOK SUNGAR, PLOT NO.07, TEACHERS COLONY, KHASBAG, BELAGAVI-590003. …PETITIONER (BY SRI AKSHAYA ANIL KATTI, ADVOCATE) AND: SHRI ABDULLA S/O. OREHAMAN SHAIKH, AGE: 52 YEARS, OCC: BUSINESS, R/O: C/O. DR.UMESH YADUR, DR.YADURS HOSPITAL, JANATA HOSPITAL UPPAR GALLI, KHASBAG, BELAGAVI-590003. …RESPONDENT (BY SMT.PRIYANKS Y. UPADHYA, ADVOCATE FOR SRI SRINAND A. PACHCHAPURE, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED U/S. 397 (1) R/W. 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS OF THE CASE BEARING C.C.NO.78/2017 FROM THE COURT OF THE V- J.M.F.C. BELAGAVI AND THE RECORDS OF CRIMINAL APPEAL NO.105/2018 FROM THE COURT OF THE XI ADDITIONAL SESSIONS JUDGE, BELAGAVI AND TO SET ASIDE THE JUDGMENT AND ORDER DATED 27.12.2018 PASSED BY THE XI-ADDL. SESSIONS JUDGE, BELAGAVI IN CRL.A.NO.105/2018 CONFIRMING THE CONVICTION AND SENTENCE DATED 01.09.2017 PASSED BY THE V-JMFC COURT, BELAGAVI IN C.C.NO.78/2017 AND SET THE PETITIONER/ACCUSED AT LIBERTY. V N BADIGER Digitally signed by V N BADIGER Date: 2025.03.11 14:26:47 +0530 - 2 - NC: 2025:KHC-D:4374 CRL.RP No. 100029 of 2019 THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V. SRISHANANDA) Accused who suffered an order of conviction in CC No.78/2017 confirmed in Crl.A.No.105/2018 is the revision petitioner. 2. Facts which are utmost necessary for disposal of the revision petition are as under: 2.1 Complaint came to be lodged under Section 200 of Cr.P.C. against the revision petitioner by the complainant alleging the commission of offence punishable under Section 138 of Negotiable Instruments Act, 1881 (herein after for short ‘NI Act’) by contending that in the acquaintance of complainant and accused, accused borrowed sum of Rs.80,000/- as hand loan and Rs.60,000/- as hand loan on two different occasions. - 3 - NC: 2025:KHC-D:4374 CRL.RP No. 100029 of 2019 2.2 Accused had agreed to repay the same within a short span of time but failed to do so. Towards the repayment of the hand loan amount of Rs.1,40,000/-, accused issued a cheque bearing No.011227 in a sum of Rs.1,40,000/- dated 27.05.2013 which on presentation came to be dishonored with an endorsement “insufficient funds”. 2.3 There was no compliance to the callings of the legal notice nor there reply. Therefore, complainant sought for action against the accused for the offence punishable under Section 138 of NI Act. 3. Learned trial Magistrate after completing the necessary formalities, summoned the accused and recorded the plea. Accused pleaded not guilty. Therefore, trial was held. 4. In order prove the case of the complainant, complainant got examined himself as PW1 and placed on record 11 documents which were exhibited and marked as Ex.P1 to P11. - 4 - NC: 2025:KHC-D:4374 CRL.RP No. 100029 of 2019 5. There was no defense evidence placed on record and in the accused statement, the incriminating materials were denied. 6. Thereafter, learned trial judge invoking the presumption available under Section 139 of NI Act, convicted the accused for the offence punishable under Section 138 of NI Act nor accused was available for recording the accused statement. Therefore, learned trial judge heard the arguments of counsel for complainant and convicted the accused for the offence punishable under Section 138 of NI Act and imposed fine of Rs.1,50,000/- of which sum of Rs.1,000/- towards the defraying expenses of the State and balance sum of Rs.1,49,000/- is ordered to be paid as compensation to the complainant. 7. Being aggrieved by the same, accused has filed appeal in Crl.A.No.105/2018. Learned Judge in the First Appellate Court after securing the records heard the parties in detail and by considered judgment dated 27.12.2018 dismissed the appeal. - 5 - NC: 2025:KHC-D:4374 CRL.RP No. 100029 of 2019 8. Being further aggrieved by same, accused is before this Court. 9. Sri.Akshya Anil Katti, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition contended that absence of the accused before the trial Court consequently on three occasions has been taken advantage by the complainant in getting the case decided exparte in as much as there was no record of accused statement nor there was sufficient opportunity granted to the revision petitioner for the purpose of leading the defense evidence. Thus, the impugned judgment has resulted in miscarriage of justice and sought for allowing the revision petition. 10. He would further contend that learned judge in the First Appellant Court mechanically upheld the incorrect order which has further resulted in miscarriage of justice and sought for allowing the revision petition. - 6 - NC: 2025:KHC-D:4374 CRL.RP No. 100029 of 2019 11. Per contra, Kum.Priyanka Y. Upadyana, counsel for Sri.Srinand A. Pachhpure, counsel supports the impugned orders. 12. Having heard the parties in detail, this Court perused the material on record meticulously. On such perusal of the material on record, it is crystal clear that the accused deliberately failed to appear before the trial Court after the cross examining of PW.1. 13. In fact, following the dictum of the Hon’ble Apex Court in the case of Indian Bank Association and others Vs. Union of India and others1, it is the defense evidence that should have commenced in the trial at the first instance and not the commencement of the trial by examining the complainant. 14. Absolutely no defense is made out and no application under Section 145(2) of the NI Act came to be filed. Therefore, contentions now urged on behalf of the revision petitioner that there was no sufficient opportunity 1 (2014) 5 SCC 590 - 7 - NC: 2025:KHC-D:4374 CRL.RP No. 100029 of 2019 for the revision petitioner to contest the matter and thus resulted in principles of fair justice being not followed by the trial Court while passing the impugned judgment which has been confirmed by the First Appellate Court has resulted in miscarriage of justice cannot be countenanced in law. 15. Further, since the complainant enjoyed the presumption under Section 139 of NI Act and there was no reply to the notice which has been issued by the complainant, this Court is of the considered opinion that the matter does not require any further interference by this Court, that too, in the revisional jurisdiction. 16. Accordingly, the following: ORDER Revision petition is meritless and is hereby dismissed. SD/- (V.SRISHANANDA) JUDGE HMB , CT:PA, List No.: 2 Sl No.: 53