- 1 - NC: 2025:KHC-D:4413 CRL.RP No. 100247 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100247 OF 2023 (397(CR.PC)/438(BNSS)) BETWEEN: KHAJA KHAN @ CRACKERS KHAJA KHAN, S/O. LATE CHAND KHAN, AGE: 45 YEARS, R/O. DALWALA MOSQUE, 2ND CROSS, ANJUMAN STREET, BALLARI-5838101. …PETITIONER (BY SRI B.S. SANGATI, ADVOCATE) AND: SREENIVASA REDDY S/O. VENKATA REDDY, AGE: 58 YEARS, R/O. RAMANJINEYA NAGAR, BELGAL CROSS, COWL BAZAAR, BALLARI-5838101. …RESPONDENT (BY SRI RAJEEV S. METI, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED U/S. 397 R/W. 401 OF CR.PC., SEEKING TO CALL FOR RECORDS AND SET ASIDE THE ORDER DTED 26.04.2023 IN CRIMINAL APPEAL NO. 13/2023 PASSED BY THE COURT OF IV ADDL. DIST. AND SESSIONS JUDGE (EXCLUSIVE DEDICATED COMMERCIAL COURT) AT BALLARI AND THE JUDGMENT PASSED IN CC NO. 829/2019 DATED 18.01.2023 BY II ADDL. CIVIL. JUDGE AND JMFC BALLARI AND FURTHER PETITIONER BE ACQUITTED OF THE OFFENCES UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: V N BADIGER Digitally signed by V N BADIGER Date: 2025.03.11 14:27:21 +0530 - 2 - NC: 2025:KHC-D:4413 CRL.RP No. 100247 of 2023 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) 1. Heard Sri.B.S.Sangati, learned counsel for the revision petitioner. None appears for the respondent. 2. Revision petitioner is the 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.829/2019 confirmed in Crl.A.No.13/2023. 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 accused has borrowed hand loan to meet the domestic expenses in a sum of Rs.3,80,000/- from the complainant with a promise to repay the same within a period of 2 months. Since there - 3 - NC: 2025:KHC-D:4413 CRL.RP No. 100247 of 2023 was no repayment and repayment of the hand loan was demanded and in that regard accused had issued two cheques drawn on SUCO bank, Ballari, dated 11.03.2019, one cheque bearing 263238 of Rs.1,60,000/- and another cheque bearing No.263237 of Rs.2,20,000/- which on presentation came to be dishonoured. Notice was issued calling upon the accused to repay the same. 4. Despite service of notice, there was neither reply nor compliance. Accordingly complainant sought for action. 5. Learned trial magistrate after completing necessary formalities, summoned the accused and recorded plea. Accused pleaded not guilty. Therefore, trial was held. 6. Complainant got examined himself as PW.1 and placed on record 9 documents which were exhibited and marked as Ex.P.1 to P.9. Cross examination of the complainant did not yield any positive material so as rebut - 4 - NC: 2025:KHC-D:4413 CRL.RP No. 100247 of 2023 the presumption available to the complainant under section 139 of the N.I.Act. 7. Accused got examined himself as DW.1 and deposed before the court that cheques in question was not issued by him, but it was issued by one Naseer who is uncle who had kept singed cheques with him and the said cheque were parted away by his uncle to the complainant in respect of the financial transactions they had and therefore, there is a misuse of cheque. 8. In his cross examination, DW.1 (accused) admits that he did not take any action against the complainant or said Nazeer for having misused the cheques. 9. Thereafter, learned trial judge heard the parties and convicted the accused and imposed the fine of Rs.3,85,000/- out of which sum of Rs.3,80,000/-was ordered to be paid as compensation and balance sum of Rs.5000/- towards the defraying expenses of the State. - 5 - NC: 2025:KHC-D:4413 CRL.RP No. 100247 of 2023 10. Being aggrieved by the same, accused preferred an appeal before the District Court in Crl.A.No.13/2023. 11. Learned judge in the first appellate Court after securing the records, heard the parties in detail and on reappreciation of the material evidence on record, dismissed the appeal of the accused. 12. Being further aggrieved by the same, accused is before this Court in this revision petition. 13. Sri.B.S.Sangati, learned counsel for the revision petitioner reiterating the grounds urged in revision petition vehemently contended that both the courts have not properly appreciated the material evidence on record and convicted the accused resulting in miscarriage of justice and sought for admitting revision petition for further consideration. 14. Learned counsel for respondent remained absent. - 6 - NC: 2025:KHC-D:4413 CRL.RP No. 100247 of 2023 15. Having heard the arguments of Sri.B.S.Sangati, this Court perused the material on record meticulously including the trial Court records. 16. On such perusal of the material on record, it is crystal clear that issuance of cheques and signature of the accused in the said cheques is not in dispute. It is the case of the accused that the cheques in question with his uncle Nazeer who had some financial transactions with the complainant and in that regard, it is his uncle-Naseer who parted away the cheques to complainant. 17. To substantiate this aspect of the matter, except the self serving testimony of accused, there is no other material on record. For the reasons best known to the accused, he did not choose to examine Nazeer as a witness. No reply has been sent to the legal notice is a significant factor, while appreciating the material on record. - 7 - NC: 2025:KHC-D:4413 CRL.RP No. 100247 of 2023 18. No normal prudent person would keep quite, if a valuable security in the form of cheque is misused by some miscreant. 19. In this regard, no positive action has been taken by the accused even after he entered appearance before the trial magistrate engaging the services of an advocate in filing a criminal complaint against complainant and Naseer nor at least issued any legal notice seeking for return of the cheques and resisting from proceeding with the criminal case already instituted by the complainant. 20. When all these factors has been viewed cumulatively, the defence having not been established by the accused, learned trial judge was justified raising the presumption in favour of the complainant as the cheques admittedly came to be dishonoured with an endorsement “insufficient funds” and signature of the accused in both cheques has been established and issuance of the cheques as propounded by the complainant. - 8 - NC: 2025:KHC-D:4413 CRL.RP No. 100247 of 2023 21. Accordingly, this court does not find any legal infirmity or perversity or patent factual defects so as to admit the revision petition for further consideration. 22. However, the impugned orders needs a slight modification insofar as imposing the fine of Rs.5,000/- towards the defraying expenses of the State as lis privy to the parties and no State machinery is involved. Taking note of the same, the same needs to be set aside. 23. Hence, following order is passed. ORDER i. Criminal revision petition is partly allowed. ii. While maintaining the conviction of the accused/revision petitioner for the offence under Section 138 of the N.I.Act, fine amount ordered by the trial magistrate in a sum of Rs.3,85,000/- to reduced to Rs.3,80,000/-. - 9 - NC: 2025:KHC-D:4413 CRL.RP No. 100247 of 2023 iii. Entire fine amount is order to be paid as compensation to the complainant. iv. Time is granted to pay the balance fine amount till 30.03.2025. v. Failure to make the payment, accused shall undergo imprisonment as ordered by the learned trial magistrate. vi. Sum of Rs.5,000/- imposed by the learned trial judge towards defraying expenses of the State is hereby set aside. Ordered accordingly. SD/- (V.SRISHANANDA) JUDGE AC CT:PA LIST NO.: 2 SL NO.: 16