- 1 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MS. JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.100494 OF 2022 C/W CRIMINAL REVISION PETITION NO.100493 OF 2022 CRIMINAL REVISION PETITION NO.100495 OF 2022 IN CRL. REVISION PETITION NO.100494 OF 2022 BETWEEN: NAGESH S/O. MANJAPPA NAIK, AGE ABOUT 32 YEARS, OCC: BUSINESS, R/O. TALAN VILLAGE, TQ. BHATKAL, DIST. UTTAR KANNADA-581320. …PETITIONER (BY SRI D.J. NAIK, ADVOCATE) AND: SRIKANT S/O. TIMMAPPA MOGER, AGE ABOUT 31 YEARS, OCC: BUSINESS, R/O: KARIKAL VILLAGE, TQ. BHATKAL, DIST. UTTAR KANNADA-581320. …RESPONDENT (BY SRI R.H. ANGADI, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT DATED 04.10.2018 PASSED BY THE CIVIL JUDGE AND J.M.F.C. AT BHATKAL IN C.C.NO. 279/2016, AND THE JUDGMENT DATED 22.08.2022 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA, KARWAR IN CRL.A NO. 128/2018, AND ACQUIT THE PETITIONER FROM THE ALLEGED OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT. Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA - 2 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 IN CRL. REVISION PETITION NO.100493 OF 2022 BETWEEN: NAGESH S/O. MANJAPPA NAIK, AGE ABOUT 32 YEARS, OCC. BUSINESS, R/O: TALAN VILLAGE, TQ: BHATKAL, DIST: UTTAR KANNADA-581320. …PETITIONER (BY SRI D.J. NAIK, ADVOCATE) AND: SRIKANT S/O. TIMMAPPA MOGER, AGE ABOUT 31 YEARS, OCC: BUSINESS, R/O: KARIKAL VILLAGE, TQ: BHATKAL, DIST: UTTAR KANNADA-581320. …RESPONDENT (BY SRI R.H. ANGADI, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT DATED 16.10.2018 PASSED BY THE CIVIL JUDGE AND J.M.F.C. AT BHATKAL IN C.C.NO. 90/2016, AND THE JUDGMENT DATED 22.08.2022 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA, KARWAR IN CRL.A NO. 130/2018, AND ACQUIT THE PETITIONER FROM THE ALLEGED OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT. IN CRL. REVISION PETITION NO.100495 OF 2022 BETWEEN: NAGESH S/O. MANJAPPA NAIK, AGE ABOUT 32 YEARS, OCC: BUSINESS, R/O: TALAN VILLAGE, TQ: BHATKAL, DIST: UTTAR KANNADA-581320. …PETITIONER (BY SRI D.J. NAIK, ADVOCATE) AND: SRIKANT S/O. TIMMAPPA MOGER, AGE ABOUT 31 YEARS, OCC: BUSINESS, R/O: KARIKAL VILLAGE, TQ: BHATKAL, DIST: UTTAR KANNADA-581320. …RESPONDENT (BY SRI R.H. ANGADI, ADVOCATE) - 3 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT DATED 16.10.2018 PASSED BY THE CIVIL JUDGE AND JMFC AT BHATKAL IN C.C.NO. 542/2016 AND THE JUDGMENT DATED 22.08.2022 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA, KARWAR IN CRL.A NO. 129/2018, AND ACQUIT THE PETITIONER FROM THE ALLEGED OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT. THESE CRIMINAL REVISION PETITIONS, HAVING BEEN HEARD AND RESERVED ON 28.11.2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON’BLE MS. JUSTICE J.M.KHAZI CAV COMMON ORDER (PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) In these three separate petitions, petitioner who is accused has challenged his conviction and sentence imposed by the trial Court for the offence punishable under Section 138 of N I Act, which came to be confirmed by the First Appellate Court, but modified the sentence. 2. Though these appeals are arising out of dishonour of three separate cheques, since the parties are common and facts leading to the filing of the complaint and defence taken by the accused is common, they are clubbed together and disposed off by common order. - 4 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 3. For the sake of convenience, parties are referred to by their ranks before the trial Court. 4. It is the case of the complainant that he and accused were carrying on business in partnership. When the partnership was dissolved and accounts were made out, accused was found due in a sum of ₹3 lakhs to the complainant. In this regard, they entered into an agreement dated 01.06.2015. As per the terms of the agreement, accused agreed to pay ₹3 lakhs on or before 29.06.2015. Towards repayment of the same accused issued three separate cheques, for ₹1 lakh each dated 29.12.2015, 29.03.2016 and 29.06.2016. However, when they were presented for encashment, they were returned dishonoured with an endorsement "insufficient funds". Complainant got issued a legal notice. However, the same is returned unserved as not claimed. Accused has neither paid the amount due under the cheque nor sent reply and hence the complaints. - 5 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 5. Accused entered appearance through counsel and resisted the case by pleading not guilty. 6. In order to prove the allegations against the accused, complainant has examined himself as PW-1 and one witness as PW-2 and relied upon Exs.P1 to 6. 7. During the course of his statement under Section 313 Cr.P.C accused has denied the incriminating evidence. 8. He has given evidence as DW-1. No documents are marked on behalf of the accused. 9. The trial Court found the accused guilty and convicted and sentenced him to pay a fine of ₹1,05,000/- in default to undergo simple imprisonment for three months in C.C.No.279/2016. Out of the fine amount ₹1,00,000/- was ordered to be paid to the complainant by way of compensation. In C.C.No.90/2016 and C.C.No.542/2016, the trial Court sentenced the accused to undergo simple imprisonment for six months and also to - 6 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 pay fine of ₹3,000/- each in default thereof to undergo simple imprisonment for another one month. The accused is also sentenced to pay compensation in a sum of ₹2 lakh each to the complainant. 10. Aggrieved by the same accused filed Crl.A.Nos.128/2018, 129/2018 & 130/2018. 11. By a common judgment and order, the Sessions Court confirmed the judgment and order of conviction of the trial Court. However, it modified the sentence and directed accused to pay fine ₹1,20,000/- each in all the three cases. It set aside the sentence of imprisonment and imposition of fine with default sentence in the other two cases. 12. Aggrieved by the same accused is before this Court in these revision petitions, contending that the judgment and order passed by both Courts are against law and procedure. They have erred in appreciating the evidence and ignored the contradictions. No case is made - 7 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 out against the accused for the offence punishable under Section 138 of N I Act and the same calls for interference by this Court. 13. On the other hand, learned counsel representing the complainant supported the judgment and order passed by the trial Court as well as the First Appellate Court and sought for dismissal of the revision petitions. 14. Heard arguments of both sides and perused the record. 15. The undisputed facts are that cheques in question belong to the accused drawn on his account and they bear his signature. When presented for realisation, they are dishonoured for want of sufficient funds in the account. Hence, presumption under Section 139 of N.I. Act comes into picture placing the initial burden on the accused to rebut the same. When the complainant sent legal notice to the accused, the same is returned unserved as not claimed. It is pertinent to note that the accused is - 8 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 not disputing the fact that legal notice was sent to him and he has not received the same, despite the postman visiting his address on seven days. He is also not disputing the address to which the notice was sent. In fact, it is the same address given in the cause title of the complaint. Admittedly, the accused has not sent any reply to the legal notice. Consequently, at the first available opportunity, the accused has failed to come up with any defence. 16. The accused has cross-examined complainant at length with regard to the business they run in partnership, The sum total of his cross-examination indicate that the accused invested ₹4.11 lakhs and complainant invested ₹3.4 lakhs for the partnership. They have purchased a Bolero pick-up vehicle for ₹7.3 lakhs in the name of accused. They also took a shop and a room on rent for ₹4,000/- and ₹6,000/- per month and also paid advance of ₹80,000/- and accused has received back the advance. Complainant has denied that no agreement is entered into between him and accused and he is not liable to pay any - 9 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 amount and that he has misused the cheques given by the accused by way of security. 17. PW-2 Nagaraj Harikanthra is a witness to the agreement at Ex.P6 and deposed to that effect. He denied the suggestion that under the guise of executing a General Power of Attorney, the signature of accused was taken to at Ex.P6. It is pertinent to note that no suggestion is made to the complainant that signature of accused was taken to Ex.P6 by representing him that it is a General Power of Attorney. 18. During the course of his evidence accused has deposed that he was doing the business of selling fish and entrusted the said work to the complainant and in fact, complainant had not invested anything in this business. His signature was taken to Ex.P6 under the guise of getting a GPA with regard to the shop premises where he was conducting fish selling business. He has also deposed that since complainant was carrying on the entire business, entire cheque book was with him and misusing - 10 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 three cheques he has filed the complaint. However, during the cross-examination of complainant, a suggestion is made to him that the cheques in question were given to him by the accused by way of security and no suggestion is made to him that cheque book belonging to accused used to be with him and he has misused the same. During his cross-examination, accused has stated that he has not taken any action against the complainant for misusing the cheques and the agreement. 19. The examination of the entire evidence placed on record by both parties establish the fact that earlier complainant and accused were running business in partnership and when the said partnership was dissolved, on finding that accused was owing a sum of ₹3 lakhs to the complainant, they have entered into an Agreement by which accused has agreed to pay ₹3 lakhs and issued three cheques. On their dishonour for want of sufficient funds, after following all the formalities complaint came to be filed. - 11 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 20. The trial Court as well as the First Appellate Court on detailed examination of the evidence have come to correct conclusion that accused is guilty of the offence punishable under Section 138 of the N.I Act and convicted and sentenced him. This Court finds no perversity or illegality in the conclusions arrived at by both courts calling for interference by this Court. 21. It is pertinent to note that in C.C.No.279/2016, the trial Court has imposed fine of ₹1,05,000/- and in default of payment of the same, sentenced the accused to undergo simple imprisonment for three months. 22. Similarly in C.C.No.542/2016 and C.C.No.90/2016, each, the trial Court has sentenced accused to undergo simple imprisonment for six months and pay fine of ₹3,000/- in default to undergo simple imprisonment for one month. In addition to it, the trial Court has directed accused to pay compensation in a sum of ₹2,00,000/- each. - 12 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 23. Though the Sessions Court has confirmed the judgment of conviction passed by the trial Court, it has modified the sentence in all three cases i.e., sentenced the accused to pay fine of ₹1,20,000/- each and out of the same, ordered payment of ₹1,15,000/- each to the complainant by way of compensation. However, it has failed to order for imposing default sentence. Unless and until default sentence is imposed, the very object of imposing fine would be frustrated. If there is no coercive measure to be taken against the accused for default of payment of fine and it can only be recovered by way of arrears of land revenue and the very object of imposing fine would be frustrated. 24. As per Section 64 of IPC, it shall be competent to the Court which sentence such offender to direct by the sentence that in default of payment of fine, the offender shall suffer imprisonment for a certain term……. It appears by over sight the First Appellate Court has failed to impose default sentence. Anyhow, while exercising the revisional - 13 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 power under Section 397 of Cr.P.C, this Court is having the power to examine the correctness, legality or propriety of any findings, sentence, or order, recorded or passed. In the light of the same the accused is sentenced to undergo simple imprisonment for three months each on his failure to pay the fine and accordingly, following: ORDER (i) All the Revision petitions filed by the accused under Section 397 r/w 401 Cr.P.C are rejected. (ii) The impugned judgment and order in C.C.No.279/2016 dated 04.10.2018 and C.C.No.90/2016, C.C.No.542/2016 dated 16.10.2018 on the file of Civil Judge and JMFC, Bhatkal, as modified by the II Addl.District and Sessions Judge, Uttara Kannada District, Karwar by a common judgment and order dated 22.08.2022 in - 14 - CRL.RP No.100494 of 2022 C/W CRL.RP.No.100493 of 2022, CRL.RP.No.100495 of 2022 Crl.A.Nos.128/2018, 129/2018 and 130/2018 are confirmed. (iii) However, in default of paying fine, the accused is sentenced to undergo simple imprisonment for three months each. (uv) The Registry is directed to send back the trial Court as well as session Court records along with copy of this order. Sd/- (J.M.KHAZI) JUDGE RR CT: UMD