- 1 - NC: 2025:KHC-D:6720 CRL.RP No. 100268 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100268 OF 2024 (397(CR.PC)/438(BNSS)) BETWEEN: NINGAPPA S/O. MARITAMMAPPA MADIWALAR, AGE: 61 YEARS, OCC. PRIMARY SCHOOL TEACHER, NOW RETIRED FROM SERVICE, R/O. VIVEKANAND NAGAR, NARAGUND-582207, TQ. NARAGUNDA, DIST. GADAG. …PETITIONER (BY SRI. VIJAYA KUMAR BALAGERIMATH, ADVOCATE) AND: SHRI ANAND S/O. SHASHIDHAR SULLAD, AGE: 30 YEARS, OCC. PVT. SERVICE, R/O. CHALUKYA NAGAR, BADAMI-587201, TQ. BADAMI, DIST. BAGALKOTE. …RESPONDENT (BY SRI. JAYAVANT KAMALI, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W. 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS, PERUSE THE SAME AND SET ASIDE THE ORDER OF CONVICTION AND SENTENCE PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE BAGALKOTE IN CRL.A NO. 03/2023 DATED 28.03.2024 AND THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE PRL. CIVIL JUDGE AND J.M.F.C. BADAMI IN C.C.NO. 1049/2021 DATED 26.12.2022 FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT. 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:6720 CRL.RP No. 100268 of 2024 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) 1. Heard Sri.Vijaya Kumar Balagerimath, learned counsel for the revision petitioner and Sri.Jayavant Kamali, learned counsel for 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.1049/2021 and ordered to pay fine of Rs.8,05,000/- of which sum of Rs.8,00,000/- as compensation and balance sum of Rs.5,000/- towards the defraying expenses of the State which got confirmed in Crl.A.No.03/2023. 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 paternal - 3 - NC: 2025:KHC-D:6720 CRL.RP No. 100268 of 2024 grandfather of the complainant by name Channappa S/o Bhimappa Mallapur and his uncle Gangadhar S/o Basappa Kanyal, were residents of Hunasikatti Village of Nargund Town. Accused and the said Channappa S/o Bhimappa Mallapur and Gangadhar S/o Basappa Kanyal, were acquainted with each other. Complainant used to visit Naragund often to the house of grandfather and his uncle. At that juncture, accused was acquainted with complainant. 4. In July 2020, in order to meet his family necessities, accused said to have approached the complainant for hand loan of Rs.8,00,000/-. In the acquaintance, complainant believed the words of the accused and lends sum of Rs.8,00,000/- which is agreed to be repaid within 6 months. 5. Towards the repayment of the same, accused issued a cheque bearing No.065578 on 11.01.2021 in a sum of Rs.8,00,000/- drawn on Karnataka Vikas Grameen Bank, Naragund Branch. The said cheque on presentation - 4 - NC: 2025:KHC-D:6720 CRL.RP No. 100268 of 2024 came to be dishonoured with an endorsement ‘funds insufficient’. 6. Legal notice was issued calling upon the amount covered under the cheque which was not complied. Therefore, complaint came to be lodged for taking action. 7. Learned trial Judge after completing the necessary formalities, summoned the accused and recorded the plea. Accused failed to plead guilty and therefore, trial was held. 8. In order to prove the case of the complainant, complainant and Gangadhar S/o Basappa Kanyal were examined as PW.1 to PW.2 and they placed on record 10 documentary evidence. Ex.P.10 is the compromise petition, wherein the liability is accepted. 9. As against the material evidence placed on record on behalf of the complainant, accused got examined himself as DW.1 and placed on record 5 documents which were the certified copy of the sworn statement in respect of some other case, where the complainant has initiated action Ex.D.3 is the hand loan - 5 - NC: 2025:KHC-D:6720 CRL.RP No. 100268 of 2024 letter, Ex.D.4 is the sworn statement and Ex.D.5 is the examination in chief. 10. Thereafter, learned trial Judge heard the arguments of the parties after recording the accused statements and convicted the accused and sentenced. 11. The conviction order of the trial Magistrate was questioned before the First Appellate Court in Crl.A.No.03/2023. 12. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and dismissed the appeal of the accused. Thereafter, petitioner is before this Court. 13. Sri.Vijaya Kumar Balagerimath, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused and sought for allowing the revision petition. 14. He would invite the attention of Court to the documents marked Ex.D.1 to 5, wherein Gangadhar S/o - 6 - NC: 2025:KHC-D:6720 CRL.RP No. 100268 of 2024 Basappa Kanyal had filed a private complaint in PCR No.25/2021 against the accused before the Judicial Magistrate First Class at Naragund and another document is the private complaint filed in PCR No.173/2021 wherein the complaint has filed in respect of cheque bearing No.065575 belonging to the account bearing No.17063627036 for amount of Rs.2,30,000/-. Therefore, the complainant is a habitual in filing such complaint under Section 138 of the N.I.Act which has not been properly appreciated by the learned trial Judge while convicting the accused and sought for allowing revision petition. 15. Per contra, learned counsel for the respondent supports the impugned judgment. 16. Having heard the arguments of both sides, this Court perused the material on record meticulously. 17. On such perusal of material on record, it is not in dispute that Ex.P.1-cheque belongs to the accused and signature found therein is that of the accused. Ex.P.3 is the copy of the legal notice and Ex.P.8 is the hand loan - 7 - NC: 2025:KHC-D:6720 CRL.RP No. 100268 of 2024 letter and Ex.P.9 is the order sheet and Ex.P.10 is the compromise petition. 18. The learned trial Judge took into to the consideration the probative value and validity of the documents placed on record by both sides in paragraph Nos.23, 24 and 25 which reads as under: “23. Ex.D1 and D2 wherein it clearly discloses that one Sri Gangadhar has filed the PCR No.25/2021 against the accused the before the JMFC Nargund and Ex.D2 is the sworn statement filed in PC No.173/2021 wherein it clearly shows that the complaint was filed with respect to the cheque bearing No.065575 belongs to the account No.17063627036 for an amount of Rs.2,30,000/- and further the accused has not produced other documents with respect to the said case. Ex.D3 is a document namely hand loan letter executed on 08.07.2020 between one Sri Basavaraj and the accused with respect to plot No.146/B and he has obtained Rs.2,00,000/- from the said person. Ex.D4 is the sworn statement filed by the complainant in PCR No.173/2021 Ex.D5 is the chief- examination filed by one Sri Gullappa Ayyatti - 8 - NC: 2025:KHC-D:6720 CRL.RP No. 100268 of 2024 in CC No.173/2021. Wherein on perusal of Ex.D1 to D5 it clearly discloses that there are other cases are pending between the accused and other person with respect to different transactions but the said documents are nowhere helpful to the case of the accused to disprove the case of the complainant. 24. It is important to note here that the accused has deposed that the documents have been created by the one Sri Gangadhar, Sri Anand and Sri Basavaraj but no single document has been produced before the court with respect to taking the legal action taken against them. Further the accused has been denied the entire transaction as contended in the complaint and he has deposed that he has issued the Ex.P1 to Sri Ram Development of Housing Board co-operative society Naragund for security of repayment of loan amount. And further if really the complainant has misused the said cheque then the accused was having liberty to take legal action against the society and against the complainant but no single document has been produced before the court to prove the said contention. And other contention taken in the chief-examination and in written argument have not been supported - 9 - NC: 2025:KHC-D:6720 CRL.RP No. 100268 of 2024 with any genuine document. Therefore, it cannot be said that the complainant has got misused the Ex.P1 which was handed over to Sri Ram Development of Housing Board co- operative society Naragund and has filed false complaint against the accused. And on the other hand the documents produced by the accused and also oral evidence of accused clearly discloses that there are several cases filed against him and he is appearing before the court and further it clearly shows that the accused was having knowledge of the court proceedings. 25. And further in order prove the above said contention the accused has not produced any document and even he has not produced any document before this court to believe his case. The accused has not taken his defense if any by giving reply to the legal notice issued by the complainant at the first instance hence contents and claim of the complainant is presumed to be admitted by the accused in the absence of the reply to the said notice. For the first time the accused has taken untenable defense during his evidence hence mere taking contention will not help the defense of the accused unless proved with cogent - 10 - NC: 2025:KHC-D:6720 CRL.RP No. 100268 of 2024 evidence. When the accused has taken the contention that the Ex.P1 has not been issued in favour of complainant and it was issued in favour of Sri Ram Development of Housing Board co-operative society Naragund for security of repayment of loan amount. Then the burden lies upon the accused to prove the said fact by adducing reliable and cogent documentary evidence to prove same by adducing probable evidence.” 19. Taking note of the above aspects of the matter, this Court is of the considered opinion that the evidence placed on record by the accused is not sufficient to rebut with presumption available the complainant under Section 139 of the N.I.Act. 20. Thus, the trial Magistrate was justified in the convicting the accused and learned Judge in the First Appellate Court rightly re-appreciated the same while dismissing the appeal of the accused. 21. This Court that too in the revisional jurisdiction cannot revisit into the factual aspects of the matter to upset the finding of conviction recorded by both Courts - 11 - NC: 2025:KHC-D:6720 CRL.RP No. 100268 of 2024 with sound and logical reasons. Accordingly, conviction needs to be maintained. 22. Having said so sum of Rs.5,000/- imposed by the trial Magistrate and confirmed by the First Appellate Court towards the defraying expenses of the State cannot be countenanced in law as 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. (ii) While maintaining the conviction of the accused for the offences punishable under Sections 138 of the N.I.Act fine amount of Rs.8,05,000/- is reduced to Rs.8,00,000/-. (iii) Entire sum of Rs.8,00,000/- is ordered to be paid as compensation to the complainant. (iv) Time is extended till 15.05.2025 to the balance amount. - 12 - NC: 2025:KHC-D:6720 CRL.RP No. 100268 of 2024 (v) Failure to pay the enhanced payment on or before 15.05.2025 would result in restoration of the jail sentence ordered by the learned Trial Magistrate confirmed by the First Appellate Court. (vi) Sum of Rs.5,000/- imposed by the trial Magistrate and confirmed by the First Appellate Court towards the defraying expenses of the State stands set aside. Sd/- (V.SRISHANANDA) JUDGE AC CT:PA LIST NO.: 2 SL NO.: 18