- 1 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100116 OF 2019 (397(Cr.PC)/438(BNSS)) BETWEEN: SRI. RAJASAB S/O. HUSSAINSAB DOTIHAL, AGE: 39 YEARS, OCC: D GROUP EMPLOYEE IN JUDICIAL DEPARTMENT, R/O. KOPPAL, DIST. KOPPAL, NOW R/O. KUSHTAGI, DIST. KOPPAL. …PETITIONER (BY SRI. AKARSH MITTALKOD, ADVOCATE FOR SRI. S.H. MITTALKOD, ADVOCATE) AND: SRI. HULAGAPPA S/O. BASAPPA PUJAR, AGE: 39 YEARS, OCC: LEGAL PRACTITIONER, R/O. HIREJANTAKAL, GANGAVATHI, KOPPAL DISTRICT. …RESPONDENT (BY SRI. N.P. VIVEKMEHTA, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W. 401 OF CR.P.C. SEEKING TO CALL FOR RECORDS, ALLOW THIS REVISION PETITION AND SET ASIDE THE JUDGMENT DATED 25.03.2019 OF DIST. & SESSIONS JUDGE, KOPPAL, IN CRL.A.NO.17/2014 AND JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE PRL. CIVIL JUDGE & JMFC COURT, GANGAVATI IN C.C.NO.150/2010 ON 11.08.2014 PUNISHABLE UNDER SECTION 138 OF NI ACT. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Sri Akarsh Mittalkod, learned counsel for revision petitioner and Sri N.P.Vivekmehta, learned counsel for respondent. 2. Revision petitioner is the accused who suffered an order of conviction in C.C.No.150/2010 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I. Act’, for short) and ordered to pay fine of Rs.1,15,000/- of which sum of Rs.1,10,000/- is ordered to be paid as compensation and balance sum of Rs.5,000/- towards expenses of the State, which was confirmed in Criminal Appeal No.17/2014. 3. Facts in the nutshell which are utmost necessary for the disposal of the revision petition are as under: 3.1 A complaint came to be lodged alleging the commission of the offence under Section 138 of the N.I. - 3 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 Act by contending that petitioner obtained hand loan in a sum of Rs.1,10,000/- for his legal necessity with a promise to repay the same within fifteen days and towards repayment, he issued cheque bearing No.528278 dated 18.09.2009 drawn on State Bank of Hyderabad, Gangavathi Branch, which on presentation came to be dishonoured. 3.2 Legal notice came to be issued which was not complied by the accused and thereafter trial was held for the offence under Section 138 of the N.I. Act. 3.3 Complainant got examined himself as PW.1 and one Girish Kulkarni as a witness to establish that there was a loan transaction as PW.2. Complainant also got examined a witness from the Bank as PW3 in the light of the defence that has been taken by the accused that there is a material alteration in Ex.P1 by dishonoured cheque. 3.4 Detailed cross-examination of the complainant and his witnesses did not yield any positive material so as - 4 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 to rebut the presumption available to the complainant under Section 139 of the N.I. Act. 3.5 Thereafter, accused got examined himself as DW1 and deposed before the Court that he is working as Peon in Gangavathi Court and did not issue cheque for the purpose of repayment of the money, but it was issued in a sum of Rs.10,000/- which has been altered materially by altering the date as well as the amount in words and figures. 4. Learned Trial Magistrate considering the rival contentions of the parties did not accept the version of the accused and convicted the accused inter alia holding in paragraph 10 as under: “10. On careful evaluation of the oral evidence of the complainant as well as the accused, it is not in dispute that the accused has issued the cheque to the complainant at Ex.P-1 by putting his signature. The issue before the court is the making of alteration by complainant with regard to writing of 1 lakh in words at Ex.P-1. Therefore when, once the accused admits his signature and writing of - 5 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 cheque, a duty is cost on the court to draw the presumption U/Sec. 139 of N.I.Act that the accused has issued the cheque at Ex.P-1 for the discharge of the legally enforceable debt. Now the onus is on the accused to rebut the presumption available U/Sec. 139 of N.I.Act and to rebut the same presumption, the accused is not suppose to lead evidence before the court beyond reasonable doubts. He can disprove the case of the complainant only by the producing the evidence which is on pre-ponderance of probabilities. The accused can rebut the presumption from the material produced by the complainant itself or by conducting effective cross examination of the complainant. In his reply notice at Ex.P-7 the accused took the contention that he has paid loan amount of Rs.10,000/-to the complainant in the Second week of August 2009. And despite of his oral request the complainant has failed to return his cheque. That apart in the cross examination of Pw-1 it is suggested that on the transfer of accused from Gangavathi, before to leave Gangavathi, the accused has paid cheque amount of Rs. 10,000/- to the complainant and inspite of that the complainant has failed to return the cheque. Ву considering this defence of the accused, the accused is not disputing of the cheque - 6 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 belonging to him and also he is not disputing his signature on the cheque at Ex.P-1(a). Therefore a presumption would arise U/Sec.139 of N.I. Act that the accused had issued the cheque at Ex.P-1 for the discharge of his debt towards the complainant. It is the allegation of accused that by rewriting the cheque amount and its date, the complainant has mentioned the cheque amount as 1,10,000/- and on the date column the year mentioned as 18-09-2009, it is an alteration made by the complainant. In order to substantiate this fact and to rebut the presumption attached with the cheque at Ex.P-1, the accused himself led oral evidence before the court. It is well settled rule that in order to rebut the presumption attached with cheque, the accused is not suppose to lead the evidence beyond the reasonable doubts. The evidence on pre-ponderance of probability by the accused can rebut the presumption. Sec.87 of N.I.Act contemplates effect of material alteration made in any negotiable instrument and if the said material alteration is proved, the instrument shall be held as void. Material alteration is one, which affects the very right of the party and by the said alteration there is a every possibility of causing harm to the other party. In the case - 7 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 on hand though the allegation of the accused with regard to adding 1 lakh and year as 18- 09-2009, is a material alteration and the same would cause harm to him if the same is proved on pre-ponderance of probabilities. The counsel for the accused would contend that after making payment of Rs. 10,000/- to the complainant, in spite of oral request the complainant has failed to return the cheque, to substantiate this fact except the oral evidence of accused no other material is placed before the court, nor it has been elicited from the mouth of Pw-1 that he made alteration in the writings of the cheque. Except requesting orally as contended by the accused, the accused has not taken any other steps such as issuing notice to the complainant for the return of his cheque or lodging of complaint before the jurisdiction police for non return of cheque till today, under such circumstances the contention of learned counsel is not acceptable. So for as alteration stated to be made in the cheque is concerned, on seeing the writings of the cheque, I do not find any alteration appears to have been made in the writings of the cheque. That apart, if the contention of the accused is genuine with regard to alteration in the writings of the cheque, the accused ought to - 8 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 have availed the opportunity for sending the said cheque to any handwriting expert for elicitating whether writings of the cheque have been altered or added. Under such circumstances the contention of the accused is not tenable accordingly the same is not accepable. The accused admits his writings on the cheque at Ex.P-1 to the extent of his writing 10,000/- Rs. in words and the date mentioned on the cheque as 18-09-2008 but the complainant has altered the date of cheque as 18-09-2009, if this being the situation, the bankers of the accused would have disregarded to the said cheque, the moment it was presented, but they have disregarded this cheque only for not having sufficient amount in the said account of the cheque. If the year 2008 has been corrected as 2009 by over writing on 2008-09, then what has prevented the accused to refer the said cheque to the handwriting expert, the opinion of the handwriting expert would have been helped the accused in elicitating the truth, but the accused has failed to file any application for referring the cheque to the handwriting expert. Further the accused has contended that he had availed loan of Rs. 50,000/- from SUCO Bank at Koppal and paid Rs. 10,000/- in the second week of August - 9 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 2009, no such bank documents are placed before the court to believe his version. Therefore from the oral evidence of Dw-1, I am of the considered opinion that his oral testimony alone is not sufficient to rebut the presumption attached with the cheque at Ex.P-1, in the absence of any other acceptable evidence. By the oral evidence of Pw-1, 2, 3 coupled with the documentary evidence at Ex.P-1 to Ex.P-7 I am of the considered opinion that the accused has issued the cheque at Ex.P-1 to the complainant for the discharge of his debt and the said cheque was dishonoured due to insufficiency of the funds in the account of the accused and that the complainant is the due holder of the cheque. The accused has relied the judgement of Hon'ble Keral High Court reported in 1998(2) ALD CRL 546. Having regard to be relied judgement, on my careful reading of the above judgement, the facts of the relied judgement and the facts of the case on hand are varied hence the said judgement is not applicable in case on hand. From the evidence of Pw-1, 2, 3 coupled with the documentary evidence at Ex.P-1 to Ex.P-7, I am of the considered opinion that the complainant has proved that the accused has committed the offence punishable U/Sec. 138 of N.I.Act. The - 10 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 complaint is intime. Accordingly I answer Point No. 1 and 2 in Affirmative.” 5. Accused filed an appeal before the District Court in Criminal Appeal No.17/2014 and learned District and Sessions Judge, Koppal after securing the records, heard the arguments of the parties in detail and by considered judgment dated 25.03.2019 dismissed the appeal inter alia holding in paragraph 22 and 23 as under: “22. I have perused the C.C. file No. 150/2010, wherein the accused was examined by the trial court on 17.04.2012, wherein the trial Court has culled out incriminating evidence available against the accused and posed questions in this statement by framing proper questions in the 313 of Cr.P.C. statement, wherein the accused had denied the prosecution case and though accused stated that, he intends to examine witness in 313 of Cr.P.C., statement recorded on 17.04.2012, but the accused has not examined any other witnesses before the trial Court except his oral evidence. And accused was also second time examined under section 313 of Cr.P.C., wherein in the 1st 313 of Cr.P.C., statement, the incriminating evidence appearing in the PW-1 & 2 were read over to - 11 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 accused. And in the further 313 of Cr.P.C., statement, the evidence of PW-3 Harshavardhana is read over to him, wherein the accused denied the incriminating evidence led in the evidence of PW-3 on 02.11.2012. And therefore, the trial Court has rightly examined the accused after framing questionnaire from of 313 of Cr.P.C., statement and examined the accused before the trial Court. Therefore, DW-1 has given his self serving testimony by examining himself as DW-1 without producing any cogent documentary proof before the trial Court in order to prove his defence. 23. After careful scrutiny, reasonings one arrayed by learned Prl. JMFC Gangavathi in the impugned judgment, wherein the learned Prl. JMFC Gangavathi ahs extracted certain admissions given by CW-1 in the cross- examination of defence counsel on page-7 of this judgment. And further in para-9 of the judgment, the trial Court has discussed about rebuttal evidence given by DW-1, wherein the DW-1 has denied the allegations of the complainant and said that, on 18.07.2007 he has availed hand loan of Rs. 10,000/- form the complainant and as a security he has issued a cheque of Rs. 10,000/-to the accused in the - 12 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 year 2007. And according to the defence of the DW-1/accused that, the complainant has made some alteration in the cheque and has inserted 1 lakh before the figure 10,000/- and Ex. P-1 by overwriting the cheque. And learned counsel for the complainant has cross- examined to DW-1, wherein he admits is signature at Ex. P-1(a) and also issuance of cheque to complainant. And hence, the trial Court has rightly appreciated the evidence on record and also drawn the mandatory and legal presumption one available under section 139 of N.I. Act to Ex. P-1, wherein the complainant, who has filed Private complaint under section 200 of Cr.P.C.. for the offence punishable under section 138 of N.I. Act, wherein the initial burden lies on the complainant to establish and prove beyond legally reasonable doubt that, the accused has issued cheque in his favour, when there is legally recoverable or enforceable debt. Now section 139 of N.I. Act contemplates that the presumption available in favour of complainant is rebuttable presumption and accused need not place on record such quality and rebuttable evidence as that of prosecution and accused need not give evidence beyond reasonable doubt. But his explanation must be plausible and rebuttable one and probable and - 13 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 proximate and the preponderance of probabilities. In case of cheque bounce case and in Ex.P-7 reply notice, the accused/DW-1 took the contention that, he has repaid loan amount of Rs. 10,000/- to PW-1/complainant in the second week of August 2009. And despite of his oral request, the complainant has failed to return the cheque. And that part of the cross-examination of PW-1, it is suggested that, on transfer of accused from Gangavathi before he was leaving Gangavathi, accused has paid cheque amount of Rs. 10,000/- to him (complainant) and in spite of that complainant has failed to return the cheque. By considering this defence of the accused, wherein the accused/DW-1 is not disputing issuance of the cheque belongs to him and he has also not disputed his signature appearing on Ex. P-1 at Ex. P-1(a). Hence, as per legal presumption available to cheque, Ex. P-1, which is Negotiable Instrument as per section 118 (a) R/w. section 139 of N.I. Act that, Ex. P-1, which is cheque leaf issued for the discharge of legally enforceable debt. The accused only taken pain of examining himself by leading oral evidence as DW-1, but DW- 1/accused has not filed any application invoking section 45 of Evidence Act for sending Ex. P-1 for obtaining report of the - 14 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 handwriting expert in order to find out that Ex. P-1 is materially altered with particulars of the cheque, which cause prejudice to the appellant/accused. But there is no evidence obtained in C.C. file under section 45 of Evidence Act. The trial Court has dealt the issue in C.C. No. 150/2010 and also considered section 87 of Negotiable Instrument Act and rejected the contention of DW-1 regarding material alteration by the complainant in respect of Ex. P-1. If really, the Ex. P-1 was materially altered, then the bank authority would have rejected the cheque, but that has not been done in this case, whereas, the complainant, who is legal practitioner, practicing at Gangavathi since about 5-10 years ago and accused was also serving in Judicial Department for some years at Gangavathi and thereby, there was acquaintance between this accuse and complainant, at that time, and due to their acquaintance, the accused had raised hand loan from the complainant. And in that hand loan transaction, the accused has given this cheque in favour of complainant. It is the case of the accused, and defence set up to the case of the complainant that, he has obtained bank loan from SUCO Bank, Koppal of Rs. 50,000/- and paid Rs. 10,000/ loan to the complainant, - 15 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 but in this regard also he has not produced any documents. And even accused/DW-1 has not issued any legal notice asking the complainant to return the alleged bank cheque given by him for clearity of the loan amount of Rs. 10,000/-. Therefore, entire defence set up by the accused to the case of the complainant appears to be not probable. And DW-1 admits that, he has studied up to S.S.L.C., and he know english language and DW-1, who is working in Judicial Department and having sufficient knowledge, as he has passed S.S.L.C. examination and he has not taken any legal action against the complainant, even complainant/PW-1 had not returned the alleged blank cheque given by the accused. And therefore, for non-issuance of any legal notice or non-initiating any criminal action against the complainant that would be one of the circumstance to reject the evidence of DW-1 and also an adverse inference has to be drawn against the DW-1 that, he himself has not taken any pain by issuance of legal notice to the complainant regarding return of Ex.P-1, original cheque and other documents retained by him belongs to the accused. Therefore, the trial court in the impugned judgment has rightly discussed the oral and documentary evidence and also considered the issue and - 16 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 citation relied by the accused counsel of Hon'ble Keral High Court and facts and ratio laid down in that decision with the present reluctant to apply the law of Hon'ble Keral High Court relied by the accused counsel. And the trial Court believed the evidence of PW-1 to 3 and Ex. P-1 to P-7 and as such, I am also of the view that, the complainant/PW-1 has made out a case of conviction against the appellant/ accused for the offence punishable under section 138 of N.I. Act, wherein the complainant has proved that, he has lent loan to accused in the month of September 2009 and accused promised to repay the amount, but he has not repaid the amount to the complainant rather he issued Ex. P-1, cheque towards legally recoverable debt issued to the complainant. Therefore, the case of the complainant is more probable than the case of the accused/appellant. And I am of the opinion that, the accused/DW-1 has failed to substantiate cogent and reliable rebuttal evidence in C.C. No. 150/2010 and as such, the defence take by the accused/DW-1 in C.C. No. 150/2010 is of no consequences and accused has not proved his defence. And on the contrary, the complainant by examining himself and two witnesses and producing Ex. P-1 to P-7 has proved his case of dishonour of - 17 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 cheque issued by the accused in his favour as per Ex. P-1. And defence of the accused is rejected, as it is not supported by valid and cogent documentary evidence. And the citations relied by the appellant's counsel in this Criminal Appeal are not applicable to the facts of the case on hand and hence, the said citations are not applied in this case. Hence, I answer point No. 1 in the negative, against the appellant/accused and point No. 2 in the affirmative in favour of complainant/ respondent.” 6. Being further aggrieved by the same, the accused has filed this revision petition. 7. Sri Akarsh Mittalkod, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused resulting in miscarriage of justice and sought for allowing the revision petition. - 18 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 8. Per contra, Sri N.P.Vivekmehta, learned counsel representing the respondent-complainant supports the impugned judgments. 9. Having heard the arguments of both the sides in detail, this Court perused the material on record meticulously. 10. On such perusal of the material on record, it is not in dispute that the cheque in question marked at Ex.P1 did belong to accused and signature found therein is that of the accused. 11. No doubt in Ex.P1, there appears to be overwriting in the date column. According to the accused, 2017 has been altered into 2019. But on close look of Ex.P1, such a thing is not forthcoming on record. So also behind the word ten thousand in the cheque, there appears to be insertion of one lakh in words and so also digit ‘1’ and comma is inserted in the figures column. Explanation given by the complainant in that regard is discussed at length by both the Courts while deciding the - 19 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 factual aspects especially in the light of the argument that has been put forth on behalf of the accused. 12. Cross examination of PW.3 who is an officer of the bank is also taken into consideration by the trial Court while appreciating the defence of the accused as referred to supra. 13. Since the cheque and signature is not in dispute, the complainant enjoyed the presumption under Section 139 of the N.I.Act. No doubt it is a rebuttable presumption. In order to rebut the same, accused has taken the responsibility of proving that there is material alteration in Ex.P.1. 14. Having regard to the detailed discussions and reasons assigned by both the Courts, this Court, that too in the revisional jurisdiction does not find any legal infirmity or perversity or patent factual error in appreciating the material evidence on record by both the Courts. - 20 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 15. As such, this Court cannot revisit to the factual aspects of the matter. Hence, conviction of the accused for the aforesaid offences needs to be maintained. 16. Having said thus, imposition of Rs.5,000/- as the fine amount towards defraying expenses of the State cannot be countenanced in law as lis is privy to the parties and no state machinery is involved. 17. Accordingly, in view of the forgoing discussions, following order is passed: ORDER (i) Criminal Revision Petition is allowed in part. (ii) While maintaining the conviction of the revision petitioner for the offence punishable under Section 138 of the N.I.Act fine amount of Rs.1,15,000/- is reduced to Rs.1,10,000/. (iii) Entire sum of Rs.1,10,000/- is ordered to be paid as compensation to the complainant. (iv) Time is extended till 30.05.2025 for payment of the compensation amount. - 21 - NC: 2025:KHC-D:6898 CRL.RP No. 100116 of 2019 (v) Fine amount of Rs.5,000/- imposed by the trial Magistrate confirmed by the First Appellate Court towards the defraying expenses of the State stands 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 CLK/AC CT:PA List No.: 2 Sl No.: 28