- 1 - HC-KAR NC: 2025:KHC-D:9221 CRL.RP No. 100226 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE K V ARAVIND CRIMINAL REVISION PETITION NO.100226 OF 2019 (397(Cr.PC)/438(BNSS)) BETWEEN: SHRI. VIJAY S/O. GOVIND SANE, AGE: 72 YEARS, OCC: TRADING BUSINESS, R/O: NOW NO.738, SAI KRUPA BUILDING, SHIVAJI COLONY, TILAKWADI, BELAGAVI, PIN CODE-590006. …PETITIONER (BY SRI. SANJAY S.KATAGERI, ADVOCATE) AND: SHRI. MILINDKUMAR S/O. GAJANAN MAILANNAVAR, AGED ABOUT: 43 YEARS, OCC: PRIVATE SERVICE, R/O: NO.1528, GAJANNAN BUILDING, ANJANEYA NAGAR, MAL MARUTI EXTENSION, BELAGAVI, PIN CODE-590017. …RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 12.07.2019 PASSED IN CRIMINAL APPEAL NO.322/2018 BY THE LEARNED X ADDL. SESSIONS JUDGE, BELAGAVI AND THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 06.10.2018 PASSED IN CRIMINAL CASE NO.361/2018 (OLD C.C.NO.202/2011 AND 429/2017) (P.C.NO.53/2011) BY THE VII-J.M.F.C. COURT, BELAGAVI, WHEREIN THE REVISION PETITIONER IS CONVICTED AND SENTENCED UNDER 138 OF NEGOTIABLE INSTRUMENTS ACT, 1881, BY ALLOWING THIS CRIMINAL REVISION PETITION, WITH COSTS AND CONSEQUENTLY DISMISSING THE SAID CRIMINAL CASE NO.361/2018, IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-D:9221 CRL.RP No. 100226 of 2019 THIS CRIMINAL REVISION PETITION, HAVING BEEN HEARD AND RESERVED ON 19.06.2025, COMING ON FOR ‘PRONOUNCEMENT OF ORDER’, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CAV ORDER (PER: THE HON'BLE MR. JUSTICE K V ARAVIND) Heard Sri Sanjay S. Katageri, learned counsel for the revision petitioner. 2. This criminal revision petition is filed by the accused challenging the judgment of conviction and order of sentence dated 06.10.2018 passed in C.C. No. 361/2018 by the Court of the VII Additional Judicial Magistrate First Class, Belagavi, and the judgment dated 12.07.2019 passed in Criminal Appeal No. 322/2018 by the Court of the X Additional Sessions Judge, Belagavi, whereby the conviction and sentence came to be affirmed. 3. The case of the complainant is that he had advanced a hand loan of ₹1,00,000/- to the accused on 01.08.2009, upon an assurance that the same would be repaid within a period of one year. The accused defaulted in repayment and after repeated demands made by the - 3 - HC-KAR NC: 2025:KHC-D:9221 CRL.RP No. 100226 of 2019 complainant, the accused issued a cheque bearing No. 283834 dated 30.12.2010, drawn on Sri Basaveshwar Co-operative Bank, Tilakwadi Branch, Belagavi, for a sum of ₹1,00,000/-. When the said cheque was presented by the complainant for encashment, it was returned dishonoured with the endorsement “funds insufficient.” Pursuant thereto, the complainant issued a legal notice demanding payment of the cheque amount. The accused failed to comply with the said demand. The complainant initiated proceedings by filing a private complaint under Section 200 of the Code of Criminal Procedure. The trial Court, upon consideration of the material, took cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I. Act, for short). 4. In order to establish his case, the complainant examined himself as PW.1 and got marked 7 documents as Exhibits P1 to P7. The accused examined himself as DW.1 and got marked 6 documents as Exhibits D1 to D6. Upon appreciation of the oral and documentary evidence available on record, the trial Court convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments - 4 - HC-KAR NC: 2025:KHC-D:9221 CRL.RP No. 100226 of 2019 Act and sentenced him to pay a fine of ₹1,18,000/-. In default of payment of the said fine, the accused was directed to undergo simple imprisonment for a period of 6 months. 5. Aggrieved by the judgment and order of sentence passed by the trial Court, the accused preferred Criminal Appeal No. 322/2018. The appellate Court, upon re- appreciation of the evidence on record, dismissed the appeal and confirmed the judgment of conviction and sentence passed by the trial Court. 6. Sri Sanjay S. Katageri, learned counsel appearing for the petitioner, submits that the father of the complainant was engaged as an advocate in MVC No. 1679/2005. During the pendency of the said MVC proceedings, the complainant’s father fixed his professional fee at 25% or ₹35,000/-, whichever was higher. It is submitted that the Tribunal awarded compensation, which was directed to be deposited into the bank account of the petitioner. In order to secure the fees claimed by the complainant’s father, a bank account was opened at his instance, and two blank cheques were issued. Learned counsel submits that upon receipt of the compensation - 5 - HC-KAR NC: 2025:KHC-D:9221 CRL.RP No. 100226 of 2019 amount, the fees claimed were paid in cash, and the complainant’s father was requested to return the cheques. However, it is submitted that the complainant’s father informed the petitioner that he would destroy the said cheques. It is further submitted that the said blank cheques have been misused by the complainant and, except for the aforesaid purpose, the petitioner had no financial transactions with the complainant. 7. Though the respondent has been served, he has chosen not to appear or participate in the present proceedings. Accordingly, this Court proceeds to consider and decide the revision petition based on the submissions of the learned counsel for the petitioner and the material available on record. 8. Exhibit P4 is the legal notice issued by the complainant demanding payment of the amount covered under the cheque marked as Ex.P1. In the reply notice (Ex.P1), the petitioner has specifically denied the existence of any financial transaction with the complainant and has raised a defence that the cheque in question was issued to the complainant’s father towards securing his professional fee for handling a motor - 6 - HC-KAR NC: 2025:KHC-D:9221 CRL.RP No. 100226 of 2019 vehicle compensation case. Further, Exhibits D2, D3, and D4 establish that the complainant’s father indeed represented the petitioner in a motor vehicle compensation claim instituted in the year 2005. The cheque in question—Ex.P1 is dated 30.12.2010, whereas the compensation in the said claim was released on 31.07.2010. The fact that the complainant’s father represented the petitioner is further substantiated by Ex.D4. The defence taken by the petitioner is a probable one and, in such circumstances, the statutory presumption under Section 139 of the Negotiable Instruments Act stands rebutted, thereby shifting the burden onto the complainant to establish the existence of a legally enforceable debt or liability. However, the evidence on record does not satisfactorily discharge the said burden. In the light of the probable defence raised by the petitioner, a higher degree of proof was required on the part of the complainant to establish the transaction, which he has failed to do. 9. The Trial Court, by applying the presumption under Section 139 of the Negotiable Instruments Act in favour of the complainant and drawing an adverse inference against the - 7 - HC-KAR NC: 2025:KHC-D:9221 CRL.RP No. 100226 of 2019 petitioner for not producing evidence regarding the use of other cheque leaves issued before or after the cheque in question, held that the petitioner is liable to repay the cheque amount. Accordingly, the Trial Court recorded a conviction and imposed a fine of ₹1,18,000/-. The Appellate Court, upon consideration of the evidence relied upon by the Trial Court, dismissed the appeal and confirmed the conviction and sentence. 10. At this stage, one more aspect requires to be noted. Neither the petitioner nor the complainant has examined the complainant’s father to either substantiate or rebut the respective versions put forth by the parties. Upon query, learned counsel for the petitioner submits that the complainant’s father was not alive at the relevant point of time. 11. On perusal of the evidence on record, it becomes evident that both the Trial Court and the Appellate Court committed an error in placing undue reliance on the presumption under Section 139 of the Negotiable Instruments Act, without properly appreciating the defence raised by the petitioner. The defence, if duly considered, would shift burden on the complainant to establish the existence of a legally - 8 - HC-KAR NC: 2025:KHC-D:9221 CRL.RP No. 100226 of 2019 enforceable debt or liability, which the complainant has failed to discharge. The material on record clearly indicates that the cheques in question were issued as security towards payment of legal fees to the complainant’s father for representing the petitioner in a motor vehicle compensation case. The dates relating to the disposal of the MVC case, the date of the award, and the date of release of compensation corroborate the defence set up by the petitioner. 12. In this view of the matter, it cannot be held that there existed any financial transaction between the petitioner and the complainant warranting repayment through the cheque in question. Once the existence of a transaction giving rise to liability is not established, the mere admission of issuance of cheque and signature would not suffice to attract the ingredients of Section 138 of the N.I. Act. Accordingly, the complaint is devoid of merit and is liable to be dismissed. 13. In view of the above findings, this Court proceeds to pass the following: - 9 - HC-KAR NC: 2025:KHC-D:9221 CRL.RP No. 100226 of 2019 ORDER (i) The Criminal Revision Petition is allowed. (ii) The judgment in C.C.No.361/2018 dated 06.10.2018 on the file of on the file of VII JMFC at Belagavi and the judgment in Crl.A.No.322/2018 dated 12.07.2019 on the file of the X Addl. Sessions Judge at Belagavi are set aside. (iii) The complaint filed by the respondent is dismissed. (iv) The accused is acquitted of all charged offences. (v) The bail bond executed by the accused is cancelled and the surety is discharged. (vi) The fine amount, if any, deposited by the petitioner shall be refunded. (vii) No order as to costs. Registry to return the trial Court records. Sd/- (K V ARAVIND) JUDGE CLK CT: UMD List No.: 1 Sl No.: 2