- 1 - NC: 2025:KHC-D:6652 CRL.RP No. 100156 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100156 OF 2023 (397(Cr.PC)/438(BNSS)) BETWEEN: SHRI MOHAN S/O. KRISHNA SHETTY, AGE: 57 YEARS, OCC. BUSINESS, R/O. GOKUL HOTEL, GOKAK, TQ. GOKAK, DIST. BELAGAVI-590001. …PETITIONER (BY SMT. PRIYANKA PAWAR, ADVOCATE FOR SRI. SANTOSH B. RAWOOT, ADVOCATE) AND: SHRI YALLAPPA S/O. IRAPPA PANCHAGAVI, AGE: 56 YEARS, OCC. AGRICULTURE, R/O. PLOT NO. 39, 6TH CROSS, APMC ROAD, MANGALMURTI NIVAS, BELAGAVI, TQ. AND DIST. BELAGAVI-590001. …RESPONDENT (BY SRI. VIDYASHANKAR G. DALWAI, ADVOCATE FOR SRI VIJAY K. NAIK, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W. 401 OF CR.PC., SEEKING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE IX ADDL. SESSIONS JUDGE, BELAGAVI IN CRIMINAL APPEAL NO. 70/2021 DATED 09.02.2023 IN DISMISSED THE APPEAL BY CONFIRMING THE ORDER OF CONVICTION AND SENTENCE PASSED IN CRIMINAL CASE NO. 395/2018 DATED 26.02.2021 PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS-8 BELAGAVI FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF N.I.ACT BY ALLOWING THIS REVISION PETITION. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:6652 CRL.RP No. 100156 of 2023 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) 1. Miss.Priyanka Pawar, learned counsel for Sri.Santosh B. Rawoot, learned counsel for the revision petitioner and Sri.Vidyashankar G. Dalwai, learned counsel for Sri.Vijay K. Naik, learned counsel for respondent are present before this Court. 2. Learned counsel for the revision petitioner prayed for disposal of the petition on merits as Petitioner is not cooperating for the amicable settlement. 3. Heard Miss.Priyanka Pawar, learned counsel for Sri.Santosh B. Rawoot, learned counsel for the revision petitioner and Sri.Vidyashankar G. Dalwai, learned counsel for Sri.Vijay K. Naik, learned counsel for respondent. 4. Revision petitioner is the accused who suffered an order of conviction in C.C.No.395/2018 for the offences punishable under Section 138 of Negotiable Instrument Act, 1881 (for short, ‘the N.I.Act’), and directed to pay fine - 3 - NC: 2025:KHC-D:6652 CRL.RP No. 100156 of 2023 amount of Rs.2,60,000/- of which sum of Rs.2,50,000/- was ordered to be paid as compensation and balance sum of Rs.10,000/- towards the defraying expenses of the State which was confirmed in Crl.A.No.70/2021. 5. Facts in a nutshell for disposal of the revision petition are as under: In respect of repayment of hand loan in a sum of Rs.2,00,000/-, accused said to have issued a cheque bearing Nos.061745, 061746, 061747, 061748 in a sum Rs.50,000/- each which on presentation returned with an endorsement ‘funds insufficient’. 6. Legal notice was not complied as cover got returned with an endorsement ‘not claimed’ and returned to sender. 7. After due trial, learned trial Magistrate convicted the accused by considering the oral and documentary evidence placed on record on behalf of the parties. - 4 - NC: 2025:KHC-D:6652 CRL.RP No. 100156 of 2023 8. While so convicting the accused, learned trial Magistrate took into consideration that in the cross examination of DW.1, accused has financially sound and there was no necessity to borrow the money and in that regard, he has produced 6 documents vide Exs.D.1 to 6. 9. It is the case of the accused that he has issued the cheque in blank which has been misused by the complainant. But no positive action has been taken by the accused in regard to alleged misuse of cheque at Ex.P.1. 10. Learned Judge in the First Appellate Court on re-appreciation of material available on record, dismissed the appeal of the accused and confirmed the order of conviction and sentence. 11. Being further aggrieved by the same, accused is before this Court. 12. Miss.Priyanka Pawar, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition contended that the material available on - 5 - NC: 2025:KHC-D:6652 CRL.RP No. 100156 of 2023 record is not properly appreciated by the learned trial Judge and learned Judge in the First Appellate Court in the impugned orders resulting in miscarriage of justice and sought for allowing the revision petition. 13. Per contra, learned counsel for the respondent supports the impugned order. 14. Having heard the arguments of both sides, this Court perused the material on record meticulously. 15. On such perusal of the material available on record, it is crystal clear that the cheque marked at Ex.P.1 belongs to the accused and signature found therein is that of the accused. 16. However, the accused has taken a plea, that Ex.P.1 was issued in blank which has been misused by the complainant. Moreover, financial condition of the accused was sound enough as per Exs.D.1 to 6. As such, he had no necessity to borrow sum of Rs.2,00,000/- from the - 6 - NC: 2025:KHC-D:6652 CRL.RP No. 100156 of 2023 complainant. It is also contended that complainant had no lending capacity. 17. Since Ex.P.1 in dishonored and, legal notice issued is not replied nor complied by the revision petitioner, material available on record would be sufficient enough to raise the initial presumption under Section 139 of the N.I.Act. 18. However, the lending capacity of the complainant was questioned which has been taken note of the learned trial Magistrate as the complainant is the pensioner and drawing sum of Rs.22,000/- per month as pension, as he is an ex-servicemen. 19. Following the dictum of Rajesh Jain Vs. Ajay Singh1, the presumption needs to be rebutted by the accused by placing the evidence on record. In that regard, oral testimony of DW.1 and documents marked at Exs.D.1 to 6 is pressed into service on behalf of the accused. 1 (2023) 10 SCC 148 - 7 - NC: 2025:KHC-D:6652 CRL.RP No. 100156 of 2023 20. The trial Magistrate and learned Judge in the First Appellate Court taking note of the material evidence placed on record, have recorded a categorical finding that evidence of DW.1 coupled with documentary evidence vide Exs.D.1 to 6 is not sufficient to rebut the presumption available to the complainant as no positive action has been taken by the accused towards the misuse of the cheques at Ex.P.1 to 4. As such, the order of conviction needs no interference. 21. However, imposition Rs.10,000/- as fine towards the defraying expenses of the State needs to be set aside. 22. Having regard to the fact that lis is privy to the parties and no State machinery is involved. 23. Accordingly, the following order is passed. ORDER (i) Criminal Revision Petition is allowed in part. - 8 - NC: 2025:KHC-D:6652 CRL.RP No. 100156 of 2023 (ii) While maintaining the conviction of the accused for offence punishable under Section 138 of the N.I.Act, the fine amount is reduced to Rs.2,60,000/- to Rs.2,50,000/-. (iii) Entire sum of Rs.2,50,000/- is ordered to be paid as compensation to the complainant. (iv) Time is extended till 15.05.2025 for payment of the balance amount. (v) Failure to pay the balance amount, accused/revision petitioner shall undergo imprisonment as ordered by trial Magistrate and confirmed by the First Appellate Court. (vi) Fine amount of Rs.10,000/- imposed by trial Magistrate confirmed by the First Appellate Court towards the defraying expenses of the State is set aside. Sd/- (V.SRISHANANDA) JUDGE AC CT:PA/List No.: 2 Sl No.: 14