- 1 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO. 100374 OF 2023 (397(Cr.PC)/438(BNSS) BETWEEN: V CHETHAN S/O GURUSIDDAPPA AGE. 39 YEARS, OCC. TRAVEL AGENT, AGE. 39 YEARS, R/O. AKSHAYUA NILAYA OPP. ADASHVANI ESHWARA NAGAR, HOSAPETE, DIST VIJAYANAGARA – 583201. …PETITIONER (BY SRI. AMAREGOUDA M., ADVOCATE) AND: G. MADHUSUDHAN S/O G. THIPPANNA AGE. 41 YEARS, OCC. TRAVEL AGENT, R/O. DOOR NO.837, WARD NO.22, VINAYAKA NAGARA, BADAVANE, SANKALAPURA HOSAPETE, DIST VIJAYANAGARA – 583201. …RESPONDENT (BY MISS. NIRMALA DODDAMANI, ADVOCATE FOR SMT. CHANDRIKA KUBASAD, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED 06.07.2023 PASSED BY IN THE COURT OF THE III ADDL. DISTRICT AND SESSIONS JUDGE, BALLARI (SITTING AT HOSAPETE) CRL.APPEAL NO.5074/2022 DISMISSING THE APPEAL FILED BY THE PETITIONER AND CONFIRMING THE JUDGMENT OF CONVICTION ORDER DATED 28.10.2022 PASSED BY IN THE COURT OF PRL. CIVIL JUDGE AND JMFC HOSAPETE IN C.C.NO.1239/2018. Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard learned counsel for the revision petitioner and learned counsel for the respondent. 2. Revision petitioner is the accused who has suffered an order of conviction in CC No.1239/2018 for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered to pay fine in a sum of Rs.6,10,000/- of which sum of Rs.6,00,000/- is ordered to be paid as compensation to the complainant and balance sum of Rs.10,000/- towards defraying expenses of the State which was confirmed in Crl.A.No.5074/2022. 3. Facts in the nutshell which are utmost necessary for disposal of the revision petition are as under: 3.1. A complaint came to be lodged under Section 200 of Cr.P.C. alleging the commission of the offence - 3 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 punishable under Section 138 of the Negotiable Instruments Act. 3.2. Complainant contended that accused is well acquainted with him and in that acquaintance, accused borrowed sum of Rs.6,00,000/- as hand loan at Hosapete and executed on demand promissory note and towards repayment, accused issued a cheque bearing No.076287 dated 21.04.2018 drawn on Axis Bank. 3.3. Said cheque on presentation is dishonored with an endorsement ‘account closed’. Accused failed to reply the callings of the legal notice and there was no compliance. Therefore, complainant sought for action against the accused. 4. After due trial, accused was convicted and sentenced as referred to supra. 5. To prove the case of the complainant, apart from examining complainant as P.W.1, nine documentary - 4 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 evidence are placed on record which are exhibited and marked as Exs.P.1 to P.9. 6. As against the evidence placed on record, accused examined himself as D.W.1 and placed on record, 16 documentary evidence which are exhibited and marked as Exs.D.1 to D.16. 7. Learned Trial Magistrate after considering the oral and documentary evidence placed on record, took into consideration the effect of the defence evidence in paragraph Nos.23 to 28 and convicted the accused. 8. For ready reference, paragraph Nos.23 to 28 are culled out hereunder: “23.The accused has stepped into witness box examined as DW.1 got marked Ex.D1 to D31. Ex.D.1 is CC of Bank pass book of his mother, Ex.D.2 is CC of PC 365/2018, Ex.D.4 is Cc of Bank endorsement, Ex.D.5 is CC of legal notice to one B.Vijendravarma, Ex.D.6 is postal receipt and acknowledgement, Ex.D.7 is promissory note, Ex.D.8 is CC of income tax return of complainant, Ex.D.9 is CC of deposition of complaint in PC.No.171/2018, Ex.D.10 is CC of in CC.No.858/2018, - 5 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 Ex.D.11 is CC of promissory note, Ex.D.12 is CC of cheque, Ex.D.13 is CC of Bank endorsement, Ex.D.14 is CC of legal notice issued to M. Kotresh, Ex.D.15 is CC postal receipt and acknowledgement, Ex.D.16 is CC of deposition of complaint in PC.No.100/2018, Ex.D.17 is Bank statement of accused, Ex.D.18 is CC of complaint copy in CC.No.858/2018, Ex.D.19 is CC of promissory note, Ex.D.20 is CC of cheque, Ex.D.21 is Bank endorsement, Ex.D.22 is CC of legal notice, Ex.D.24 is CC of deposition, Ex.D.25 is CC of complaint in PC.No.365/2018, Ex.D.26 is CC of bank endorsement, Ex.D.27 is CC of legal notice, Ex.D.28 is postal receipt and acknowledgement, Ex.D.29 is CC of promissory note, Ex.D.30 is income tax return, Ex.D.31 is CC of deposition. 24. By relying oral and documentary evidence. The accused has specifically contended that the disputed cheque is not issued in discharge of legally enforceable debt. 25. It is specific defence of the accused that the complaint has not disclosed for what purpose the accused has borrowed huge amount. On going through averments of complaint, the complainant has stated that accused has borrowed Rs.6,00,000/- it is not for the complainant to disclose for which purpose he has lent the amount. Hence, the argument of the accused cannot be accepted. - 6 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 26. The accused has taken another defence that with acquittance, the complainant used to visit his office, when he has gone for his work to bank at that time he has let the complainant to look after his office at that time complainant has took his cheque Ex.p.1, and misused the same. Further he has closed his account on 6.10.2018. He has specifically contended that he has not borrowed loan amount and he has not issued cheque for discharge of any liability. 27. Further accused has contended that by misusing the cheque the complainant has black mailed him, he has paid Rs.2,00,000/- to complainant on 10.9.2014. Hence, it is defence of accused that the complainant has misused the stolen cheque from his shop and black mailed him and his mother has transfered of Rs.2,00,000/- to complainant. Further accused has not disputed that the cheuqe is not belonged to him, the accused has disputed the signature on Ex.P.1. Hence, he has contended Ex.P.1 has not issued for any discharge of legally enforceable debt. 28. On going through the contention of accused he has contended that complainant has misused the stolen cheque from his shop and he has closed account on 6.10.2017. On going through documents marked on behalf of complainant he has specifically contended that the accused has borrowed Rs.6,00,000/- by executing on demand promissory note. On going - 7 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 through Ex.P.9, on demand promissory note was executed by accused on 6.11.2018 for Rs.6,00,000/-. Further there is no explanation from the accused in regard of execution of on demand promissory note. The accused has contended that the complainant has misused the stolen cheque from his office and blank mail him and his mother has paid Rs. 2,00,000/- to complainant. On going through the suggestion made by accused that Rs.2,00,000/- was transferred on 10.9.2014. Hence, contention taken by the accused that his mother has transferred Rs.2,00,00/- for black mailed him for stolen cheque cannot be accepted. Because on going Ex.P.9 and Ex.P.1, Ex.P9 is promissory note dated 6.1.2017, and Ex.P.1 cheuqe was issued on 21.4.2018, but the mother of accused has transferred Rs.2,00,000/- on 10.9.2014. Hence, the amount was transferred much prior before of execution of Ex.P.1 and 9. Hence, the story set up by the accused cannot be believed.” 9. Being aggrieved by the same, accused filed an appeal before the First Appellate Court in Crl.A.No.5074/2022. 10. Learned Judge in the First Appellate Court reappreciated the material evidence on record in the light - 8 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 of the appeal grounds and dismissed the appeal filed by the accused. 11. Being further aggrieved by the same, accused is before this Court, in this revision. 12. Learned counsel for the revision petitioner reiterating the grounds urged in the revision petition contended that complainant is habitual in filing the dishonored cases and case filed by the complainant against Vijayendra and another person, has been established by placing necessary documentary evidence on record which has not been properly appreciated by the learned Trial Magistrate and therefore, order under revision needs to be set aside. 13. He also contended that before issuance of the cheque that is the date of the cheque, account itself was closed which has been properly established by the accused. Therefore, it is a clear case of misuse of the - 9 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 cheque and therefore, sought for allowing the revision petition. 14. Per contra, learned counsel for the respondent supports the impugned judgments. 15. Having heard the arguments of both sides, this Court perused the material on record meticulously. 16. In the case on hand, hand loan obtained by the accused from the complainant is not only established by producing the dishonored cheque but also by producing on demand promissory note. Accused has admitted the signatures therein. 17. How the cheque came to be issued after the account came to be closed by the accused is a question that needs to be explained by the accused inasmuch as he did not hand over the remaining cheques at the time of closing the account to his banker nor he took steps to summon the banker to find out when exactly account was closed. - 10 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 18. Further, accused producing the certified copy of the complaint and other necessary documents in respect of the complaint filed by the complainant against Vijayendra and another person, will have no bearing insofar loan transaction and nonpayment thereof. 19. When the cheque is belonging to the accused and same is dishonored, the Trial Court is entitled to raise necessary presumption and in the event of non-placing of any proper rebuttal evidence; learned Trial Magistrate was justified in convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act which has been rightly reappreciated by the First Appellate Court which needs no interference by this Court, in this revision, in view of the principles of law enunciated in the case of Rajesh Jain v. Ajay Singh reported in (2023) 10 SCC 148. 20. Having said thus, learned Trial Magistrate has imposed sum of Rs.10,000/- towards defraying expenses - 11 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 of the State which cannot be countenanced in law as lis is privy to the parties and no State machinery is involved. 21. Accordingly, the following: ORDER i. Revision petition is allowed in part. ii. While maintaining the conviction of the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, fine amount in a sum of Rs.6,10,000/- ordered by the learned Trial Magistrate confirmed by the First Appellate Court is reduced to sum of Rs.6,00,000/-. iii. Entire sum of Rs.6,00,000/- is ordered to be paid as compensation to the complainant. iv. Time is granted for the revision petitioner to pay the fine amount till 31.05.2025. v. Failure to pay the fine amount on or before 31.05.2025, revision petitioner shall undergo imprisonment as ordered by the learned Trial Magistrate. - 12 - NC: 2025:KHC-D:7026 CRL.RP No. 100374 of 2023 vi. Fine amount in a sum of Rs.10,000/- ordered by the learned Trial Magistrate towards defraying expenses of the State is set aside. vii. Office is directed to return the Trial Court Records with copy of this order forthwith for issuing modified conviction warrant. SD/- (V.SRISHANANDA) JUDGE KAV CT:GSM List No.: 2 Sl No.: 48