- 1 - HC-KAR NC: 2025:KHC:27495 CRL.RP No. 1198 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION NO. 1198 OF 2019 BETWEEN: MR. NAGESH SHETTIGAR S/O. SUNDARA SHETTIGAR, AGED ABOUT 34 YEARS, OCC:BUSINESS, R/O, SANGABETTU HOUSE, SANGABETTU VILLAGE, BANTWAL TALUK, DAKSHINA KANANDA DISTRICT - 574 211. …PETITIONER (BY SRI. DINESHKUMAR K RAO, ADVOCATE) AND: MR. PRASHANTH SHETTY S/O. BHOJA SHETTY. AGED ABOUT 33 YEARS. OCC:BUSINESS, R/AT: BAKYARKODI HOUSE, SANGABETTU VILLAGE, BANTWAL TALUK, DAKSHINA KANNADA DISTRICT - 574 211. …RESPONDENT (BY SMT. N. SHWETHA NAYAK, ADVOCATE FOR SRI. DHANANJAY KUMAR, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27495 CRL.RP No. 1198 of 2019 AND ORDER DATED 17.07.2019 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN CRL.A.NO.118/2018 CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 26.09.2018 IN C.C.NO.180/2015 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BANTWAL, D.K., AND ETC. THIS REVISION PETITION COMING ON FOR FURTHER HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER This revision petition is directed against the judgment dated 17.07.2019 passed in Criminal Appeal No.118/2018 by the Principal District and Sessions Judge, D.K., Mangaluru, whereunder the judgment of conviction dated 26.09.2018 passed in C.C.No.180/2015 by Principal Senior Civil Judge and JMFC, Bantwal, convicting the petitioner for offence under Section 138 of Negotiable Instruments Act (hereinafter for the sake of brevity referred to as the `N.I. Act’) and sentencing him to pay fine of Rs.4,40,000/- and in default, to undergo simple imprisonment for a period of six months has been affirmed. - 3 - HC-KAR NC: 2025:KHC:27495 CRL.RP No. 1198 of 2019 2. Heard learned counsel for petitioner and learned counsel for respondent. 3. The case of respondent-complainant before the trial Court was that, respondent-complainant and petitioner-accused entered into an agreement regarding return of items mentioned in the list of the agreement dated 30.10.2014. As per the said agreement, respondent-complainant was under an obligation to return the items mentioned in the list on or before 29.11.2014 and at that time, as per the agreement, petitioner-accused has to pay Rs.4,30,000/- to respondent-complainant. 4. As per the said agreement, respondent- complainant has returned the items mentioned in the list on 29.11.2014 and petitioner-accused issued a cheque dated 29.11.2024 bearing No.692389 drawn on Vijaya Bank, Siddakatte branch for Rs.4,30,000/-. Respondent- complainant presented the said cheque for encashment and it came to be dishonored for reason 'insufficient funds' vide Bank memo dated 29.01.2015. - 4 - HC-KAR NC: 2025:KHC:27495 CRL.RP No. 1198 of 2019 5. Respondent-complainant got issued legal notice dated 05.02.2015 to petitioner-accused demanding to pay the cheque amount and it has been served on petitioner- accused on 07.02.2015. 6. Petitioner-accused has not paid the cheque amount within 15 days and therefore, respondent- complainant has initiated proceedings against the petitioner-accused for offence under Section 138 of N.I. Act. 7. Respondent-complainant has examined himself as PW1 and got examined one witness as PW2 and got marked documents as Exs.P1 to P7. 8. Statement of the petitioner-accused has been recorded under Section 313 of Cr.P.C. The petitioner- accused examined himself as DW1 and got examined one witness as DW2 and got marked documents as Exs.D1 and D2. - 5 - HC-KAR NC: 2025:KHC:27495 CRL.RP No. 1198 of 2019 9. Learned Magistrate after hearing arguments on both sides and appreciating the evidence on record has convicted the petitioner-accused for offence under Section 138 of N.I. Act and sentencing to pay fine of Rs.4,40,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. The said judgment has been challenged by the petitioner-accused before the sessions Court in Criminal Appeal No.118/2018 and the said appeal came to be dismissed on merits affirming the judgment passed by the trial Court. 10. Learned counsel for the petitioner would contend that, the cheque-Ex.P1 has been issued as a security for return of shamiyana items as per agreement- Ex.P6 dated 30.10.2014 and respondent-complainant has not returned the said items. Therefore, the petitioner- accused is not liable to pay the cheque amount. He further submits that, the petitioner-accused has given a police complaint and police have recorded the statement of respondent-complainant which is at Ex.D1 and - 6 - HC-KAR NC: 2025:KHC:27495 CRL.RP No. 1198 of 2019 thereafter, the endorsement-Ex.D2 directing the petitioner-accused to approach the Civil Court stating that the dispute is civil dispute. PW2 is not a witness to the agreement-Ex.P6 and DW2 is a witness to the agreement- Ex.P6. He further submits that, the petitioner is ready to give cheque amount if he receives the shamiyana items mentioned in the agreement-Ex.P6. Considering all these aspects, learned Magistrate erred in convicting the petitioner-accused and appellate Court erred in affirming the said judgment of conviction passed by the trial Court. 11. Learned counsel for the respondent submits that, agreement-Ex.P6 is not in dispute and the petitioner- accused has also not disputed the issuance of cheque- Ex.P1 and therefore, the presumption has to be drawn under Section 139 of N.I. Act. The petitioner-accused has not rebutted the said presumption. The evidence of PW2 and DW2 proves that the respondent-complainant has given shamiyana items to the petitioner-accused and cheque is issued for making payment of the amount as per - 7 - HC-KAR NC: 2025:KHC:27495 CRL.RP No. 1198 of 2019 the agreement-Ex.P6. Considering these aspects, learned Magistrate has rightly convicted the petitioner-accused and appellate Court has rightly affirmed the judgment of conviction passed by the trial Court. 12. Having heard the learned counsel for parties, perused the impugned judgment, trial Court records and appellate Court records. 13. It is a specific case of the respondent - complainant that petitioner and respondent were carrying on shamiyana business and there was a dispute among them with regard to the said business and they closed their business and respondent-complainant has agreed to give the shamiyana items to the petitioner-accused and the petitioner-accused in turn has agreed to pay Rs.4,30,000/- as the cost of the said items and there was an agreement regarding the same dated 30.10.2014 as per Ex.P6. Ex.P1-cheque is issued by the petitioner- accused for making payment of amount as mentioned in the agreement-Ex.P6. The signature on cheque and - 8 - HC-KAR NC: 2025:KHC:27495 CRL.RP No. 1198 of 2019 issuance of cheque is admitted by the petitioner-accused. Therefore, the presumption has to be drawn under Section 139 of N.I. Act that the cheque is issued for discharge of a debt or other liability. The said presumption drawn under Section 139 of N.I.Act is a rebuttable presumption. The standard of proof for rebutting the said presumption is that of preponderance of probability. 14. The petitioner-accused has not got issued any reply to the legal notice putting forth his defense. The petitioner-accused has taken up his defense in the cross- examination of PW1. The defense of the petitioner-accused is that, he gave cheque-Ex.P1 as a security under the agreement-Ex.P6 and as the items are not given to him and cheque has been misused. The said defense has been suggested to PW1 in his cross-examination and PW1 has denied the said suggestion. The evidence of PW2 and DW2 indicate that respondent-complainant has returned the shamiyana items mentioned in the agreement-Ex.P6 to - 9 - HC-KAR NC: 2025:KHC:27495 CRL.RP No. 1198 of 2019 petitioner-accused and cheque is issued for making payment of amount mentioned in the agreement-Ex.P6. 15. Considering the said admission given by DW2 and evidence of PW2, the contention of petitioner-accused that he has not received the shamiyana items mentioned in the agreement-Ex.P6 is not true. 16. Considering the above aspects, trial Court has rightly held that cheque-Ex.P1 has been issued for discharge of other liability as per the agreement-Ex.P6 and appellate Court has rightly affirmed the judgment of conviction passed by the trial Court. There are no grounds made out to allow this revision petition. 17. Hence, this Criminal Revision Petition is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE KLV List No.: 1 Sl No.: 24