- 1 - NC: 2025:KHC-D:4942 CRL.RP No. 100026 of 2025 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.100026 OF 2025 (397(CR.PC)/438(BNSS)) BETWEEN: NEKKANTI SRINIVAS S/O. SURYARAO, AGE: 55 YEARS, OCC. PROPRIETOR OF SRI. VIJYADURGA GENERAL MERCHANTS AND COMMISSION AGENTS DALLARI BAZAR, R/O. KARATAGI-5832229, DIST. KOPPAL. …PETITIONER (BY SRI S. H. MITTALKOD, ADVOCATE) AND: GANGADHARAYYA @ GANGADHARSWAMY S/O. VIRUPAKSHAYYA SWAMY, AGE: 65 YEARS, OCC. AGRI. AND BUSINESS, R/O. J.P. NAGAR, KARATAGI, DIST. KOPPAL. …RESPONDENT (BY SRI HANUMESH DESAI, ADVOCATE FOR SRI NEELEDNRA D. GUNDE, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 R/W. 401 OF CR.P.C, 438 R/W. 442 OF BNSS, SEEKING TO ALLOW THIS REVISION PETITION AND SET ASIDE THE JUDGMENT AND ORDER DATED 16.12.2024 PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE KOPPAL (SITTING AT GANGAVATI) IN CRIMINAL APPEAL NO. 14/2024 OFFENCE P/U/SEC. 138 OF NI ACT CONFIRMING THE CONVICTION AND SENTENCE OF FINE DEFAULT SENTENCE AND COMPENSATION PASSED BY THE CIVIL JUDGE J.M.F.C. KARATAGI (ITINERARY COURT) IN CRIMINAL CASE NO. 463/2019 DATED 18.06.2024 AND SET THE PETITIONER AT LIBERTY. V N BADIGER Digitally signed by V N BADIGER Date: 2025.03.27 10:53:29 +0530 - 2 - NC: 2025:KHC-D:4942 CRL.RP No. 100026 of 2025 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) 1. Heard Sri.S.H.Mittalkod, learned counsel for the revision petitioner and Sri.Hanumesh Desai, learned counsel for Sri.Neelendra D. Gunde, 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.463/2019 confirmed in Crl.A.No.14/2024 is the revision petitioner. 3. Facts in a nutshell for disposal of the revision petition are as under: A complaint came to be lodged under Section 200 of the Criminal Procedure Code (for short, ‘the Cr.P.C.’), alleging the commission of the offence punishable under Section 138 of the N.I.Act, by contending that the accused and the complainant are known to each other about 5-10 - 3 - NC: 2025:KHC-D:4942 CRL.RP No. 100026 of 2025 years. In the said acquaintance, accused said to have borrowed a sum of Rs.10,00,000/- for him for his family necessity. Accused said have agreed to repay the same with interest at 1.25% per month, but despite repeated demands, accused failed to repay the same. 4. Thereafter, in the first week of November 2018, accused said to have issued a cheque bearing No.026903 in a sum of Rs.10,00,000/- dated 03.12.2018 drawn on SBI bank, Karatagi Branch. Said cheque on presentation came to be dishonoured with an endorsement “funds insufficient”. 5. Legal notice came to be issued, but there was no response to the legal notice nor there was any reply to the legal notice. Thereafter, complainant sought for action against the accused for the aforesaid offences. 6. Learned trial magistrate after completing the necessary formalities, summoned accused and recorded plea. - 4 - NC: 2025:KHC-D:4942 CRL.RP No. 100026 of 2025 7. Accused pleaded not pleaded guilty. Therefore, trial was held. 8. In ordered to prove the case of the complainant, apart from complainant one witness by name Honnappa Hugar was also examined as PW.2 and 8 documents were placed on record which were exhibited and marked as Ex.P.1 and P.8 comprising of dishonoured cheque, bank endorsement, legal notice, postal receipt, postal acknowledgement and letter dated 30.06.2016. 9. As against the evidence placed on record by the complainant, accused got examined himself as DW.1 and placed on record 6 documents which were exhibited and marked as Ex.D.1 to D.6 comprising of slips issued by the complainant and letter issued by the bank. 10. On conclusion of recording of evidence, learned trial magistrate heard the parties in detail and disbelieved the defence taken by the accused that cheques which were given as security at the time of taking sum of Rs.5,00,000/- as the loan has been misused by the complainant, convicted the accused and sentenced him to - 5 - NC: 2025:KHC-D:4942 CRL.RP No. 100026 of 2025 pay Rs.12,05,000 with default sentence of 6 months simple imprisonment. 11. Being aggrieved by the same, accused filed an appeal before the District Court in Crl.A.No.14/2024. 12. Learned judge in the first appellate Court after securing the records heard the parties in detail in the light of the appeal grounds and dismissed the appeal of the accused. 13. Being further aggrieved by the same, accused is before this Court in this revision petition. 14. Sri.S.H.Mittalkod, learned counsel for the revision petitioner reiterating in the grounds urged in the revision petition contended that in the case on hand, both the Courts have not properly appreciated the defence put forth on behalf of the accused especially when there is a denial of Ex.P.8. 15. He would further contend that cheques which were issued in blank at the time of borrowing sum of Rs.5,00,000/- by the accused from the complainant has been misused by the accused and when once the signature - 6 - NC: 2025:KHC-D:4942 CRL.RP No. 100026 of 2025 in Ex.P.8 is disputed by the accused, the trial court ought not to have convicted the accused for the offence punishable under Section 138 of the N.I.Act, by resorting to presumption under Section 139 of the N.I.Act, and the same has been not considered by the learned judge in the first appellate court resulting in miscarriage of justice and sought for allowing the revision petition. 16. He would further contend that the application filed by the accused seeking referring the signature found in Ex.P.8 to handwriting expert having been dismissed by the trial judge, learned judge in the first appellate court failed to the take note of the said aspect of the matter whereby serious prejudice to the rights of the revision petitioner has occurred. Therefore, matter requires consideration before this court in this revision petition and sought for admitting the petition for further consideration. 17. Per contra, Sri.Hanumesh Desai, learned counsel for the respondent/complainant supports the impugned order. - 7 - NC: 2025:KHC-D:4942 CRL.RP No. 100026 of 2025 18. Having heard the arguments of both sides, this Court perused the material on record meticulously. On such perusal of the material on record, issuance of cheque and signature found therein is not disputed. For the reasons best known to the accused, he did not receive the notice nor replied same. 19. No positive action has been taken by the accused at least soon after he appeared before the court about the alleged misuse of the cheque at Ex.P.1 either by filing necessary criminal complaint or civil suit. 20. Admittedly, cheque has been dishonoured for want of funds. Therefore, complainant enjoyed the presumption under Section 139 of the N.I.Act. Ex.P.8 is the letter said to have been given by the accused to the complainant by acknowledging the amount due. 21. No doubt accused has disputed the signature found therein. In fact, he had also filed an application before the trial magistrate, referring the disputed signature to handwriting expert. The said application on - 8 - NC: 2025:KHC-D:4942 CRL.RP No. 100026 of 2025 contest came to be dismissed. However, the accused did not choose to challenge the said order. 22. Learned Judge in the first appellate court has dealt in detail especially the oral testimony of DW.1 in this regard. DW.1 has specifically stated that he had borrowed sum of Rs.5,00,000/- from the accused earlier and at the time of said transaction, in the year 2017, he had given 2 cheques which were in black. According to accused, said blank cheques are misused by the complainant. 23. It is pertinent to note that no normal prudent person should keep quiet, if there is an misuse of the cheque that too in a sum of Rs.10,00,000/- without taking any action. At least after he engaged the services of an advocate before the trial magistrate, some positive action should have been taken by the accused, if there is an misuse of cheque. In the absence of any such action on behalf of the accused, self serving testimony of DW.1 that the cheques were misused is of no significance while rebutting the presumption available to the complainant under section 139 of the N.I.Act. - 9 - NC: 2025:KHC-D:4942 CRL.RP No. 100026 of 2025 24. Having regard to the limited revisional jurisdiction, this court is of the considered opinion that the factual aspects has been rightly appreciated by the learned judge and learned judge in the first appellate Court especially noting that the material evidence placed on record by the defence is not sufficient to rebut the presumption available to the complainant under Section 139 of the N.I.Act. 25. Therefore, following the dictum of the Hon’ble Apex Court in the case of Rajesh Jain Vs. Ajay Singh1, this court is of the considered opinion that conviction order does not require any interference that too in the revisional jurisdiction. 26. However, it is noticed that as against the cheque amount of Rs.10,00,000/-, trial magistrate has awarded Rs.12,05,000/- as fine amount. Out of the same, sum of Rs.12,00,000/- is ordered to be paid as 1 2023 (4) KCCR 3314 (SC) - 10 - NC: 2025:KHC-D:4942 CRL.RP No. 100026 of 2025 compensation and Rs.5,000/- to be appropriated towards the defraying expenses of the State. 27. Since lis is privy to the parties and no State machinery is involved, awarding sum of Rs.5,000/- towards the defraying expense of the State cannot be countenanced in law. Accordingly, in view of the for going discussion, following order is passed: ORDER i. Criminal revision petition is allowed in part. ii. While maintaining the conviction of the accused for the offence under Section 138 of N.I.Act, fine amount awarded by the trial magistrate confirmed by the first appellate Court is reduced to sum of Rs.12,00,000/-. iii. Time is granted for the payment of the balance amount till 30.04.2025. iv. Failure to pay the balance fine amount, accused shall undergo simple imprisonment for period of 6 months. - 11 - NC: 2025:KHC-D:4942 CRL.RP No. 100026 of 2025 v. Entire amount of Rs.12,00,000/- is ordered to be paid as compensation to the complainant. vi. Fine amount of Rs.5,000/- ordered by trial magistrate confirmed by the first appellate Court towards the defraying expenses of the State is hereby set aside. vii. Amount in deposit is ordered to be withdrawn by the complainant under due identification. viii. Office to return the Trial Court records along with a copy of this order for issuance of modified conviction warrant. SD/- (V.SRISHANANDA) JUDGE AC CT:PA LIST NO.: 2 SL NO.: 31