- 1 - HC-KAR NC: 2025:KHC:31994 CRL.RP No. 236 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE CRIMINAL REVISION PETITION NO. 236 OF 2016 BETWEEN: M N SHIVASHANKAR, S/O LATE M C NANJUNDAPPA, AGED ABOIUT 53 YEARS, SR. ASSISTANT, CHESCOM (KEB),DIVISIONAL OFFICE, MANDYA- 571401. …PETITIONER (BY SRI VIDYASAGAR H V, ADVOCATE FOR SRI KEMPARAJU, ADVOCATE) AND: KADEGOWDA, S/O NATHEGOWDA, AGED ABOUT 66 YEARS, R/O KONANAHALLI, 4KASABA HOBLI, MANDYA TALUK AND DISTRICT-571401. …RESPONDENT (BY SRI M Y SREENIVASAN, ADVOCATE) THIS CRL.RP IS FILED U/S.397 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY THE J.M.F.C., MANDYA IN C.C.NO.376/2010 DATED 31.03.2015 CONSEQUENTLY SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY THE V ADDL. DIST. AND S.J., MANDYA IN CRL.A.NO.30/2015 DATED 23.01.2016 AND AWARD COSTS. THIS PETITION, COMING ON FOR REPORTING SETTLEMENT, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31994 CRL.RP No. 236 of 2016 CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL ORDER This petition is against the judgment of conviction and sentencing the accused for an offence under Section 138 of Negotiable Instruments Act, 1881 (for short 'Act, 1881'). 2. A cheque of Rs.2,65,000/- said to have been issued by the petitioner to the respondent is dishonoured and the Trial Court sentenced the accused to pay fine of Rs.2,70,000/- and out of the said amount, Rs.2,65,000/- is ordered to be paid as compensation to the complainant. In default of payment of fine, the petitioner/accused is sentenced to undergo simple imprisonment for one year. The Appellate Court dismissed the appeal filed by the petitioner-accused. 3. The complainant states that on 05.09.2009 accused borrowed Rs.2,65,000/- hand loan and towards discharge of the said hand loan, he issued a cheque dated 22.12.2009. The said cheque was dishonoured when presented and notice was issued to the complainant demanding the amount mentioned in the cheque. The amount was not paid and complaint is filed for offence under Section 138 of the Act, 1881. - 3 - HC-KAR NC: 2025:KHC:31994 CRL.RP No. 236 of 2016 4. The accused contested the matter and led evidence. 5. The Trial Court on appreciation of the evidence concluded that the presumption under Sections 118 and 139 of Act, 1881 is not rebutted. Accordingly, convicted the accused. The Appellate Court also held that the offence is committed under Section 138 of the Act, 1881 and dismissed the appeal. 6. Learned counsel appearing for the petitioner would contend that the: - The Trial Court and the Appellate Court did not appreciate the evidence in proper perspective. The cheque should have been sent for Forensic expert's opinion to determine the age of the signature on the cheque and that would have established the fact that the cheque was signed three years prior to the date mentioned in the said cheque. The application filed by the petitioner before the Trial Court to send the cheque for Forensic expert's opinion should not have been rejected. - the order rejecting the application for sending the cheque for Forensic expert's opinion was under challenge - 4 - HC-KAR NC: 2025:KHC:31994 CRL.RP No. 236 of 2016 before this Court in Crl.P.No.7467/2014. And pending consideration of the said petition in Crl.P.No.7467/2014 the proceeding before the Trial Court was disposed of with an observation that the contention relating to referring the cheque for Forensic expert's opinion can be raised in the appeal. - Accused filed an application to refer the cheque for expert's opinion in the appeal, same was rejected and the order was under challenge before this Court in Crl.R.P. No.12/2016 and since, there was no stay order the appeal is also dismissed. Thus, it is urged that the judgment passed by the Trial Court and the Appellate Court have to be set-aside. - It is also urged that the transaction is not established and the accused has rebutted the presumption under Section 139 of Act, 1881. - It is also urged that cheque handed over to one Shivarudregowda is also misused by the complainant. 7. Learned counsel for the respondent/complainant would urge that the signature on the cheque is admitted and there is no merit in the contention relating to the age of the - 5 - HC-KAR NC: 2025:KHC:31994 CRL.RP No. 236 of 2016 signature on the cheque. It is also urged that the accused did borrow money and issued a cheque towards discharge of the debt and presumption arising from Sections 118 and 138 of Act, 1881 is not rebutted by leading evidence. Accused has not replied to the notice issued under Section 138 of Act, 1881. Thus, would urge to dismiss the petition. 8. This Court has considered the contentions raised at the bar and perused the records. 9. What can be noticed from the evidence led before the Court is that the signature on the cheque is not in dispute. What is disputed is the date of issuance of the cheque. It is also noticed that accused is a Post Graduate in Arts. Accused has also admitted that there are five cases filed against him for the offence under Section 138 of Act, 1881. 10. Accused has stated that he had issued five blank cheques and one demand promissory note in favour of one Shivarudregowda. However, Shivarudregowda is not examined. And if at all, the cheques issued in favour of Shivarudregowda are misused, petitioner/accused ought to have taken action in law against Shivarudregowda. This being - 6 - HC-KAR NC: 2025:KHC:31994 CRL.RP No. 236 of 2016 the position, the contention that the cheques issued to Shivarudregowda are misused by the complainant is not established. 11. As far as the contention relating to the age of the signature on the cheque is concerned, this Court is of the view that even if it is assumed that the cheque was signed and handed over to the complainant three years prior to the date of the cheque, it would only mean that accused had authorised the complainant to fill the contents of the cheque. Thus, the contention that the blank signed cheque was handed over to Shivarudregowda much earlier to the date mentioned therein does not come to the aid of the petitioner. 12. Moreover, it is also relevant to notice that the issuance of cheque to Shivarudregowda is not established. Hence, there is no merit in the contention of the petitioner that the handwriting expert's opinion is to be secured on the age of the signature on the cheque. 13. After considering the reasons assigned by the Trial Court and the Appellate Court, this Court does not find any merit in the petition. Accordingly, petition is dismissed. - 7 - HC-KAR NC: 2025:KHC:31994 CRL.RP No. 236 of 2016 14. It is also submitted that part of the fine amount is already deposited before the Trial Court. 15. Balance amount shall be deposited before the Trial Court within two months from today, failing which the petitioner shall undergo simple imprisonment for three months as this Court finds that the imprisonment of one year imposed by the Trial Court and the Appellate Court is slightly disproportionate to the offence committed. 16. Hence the following: ORDER (i) Petition is allowed-in-part. (ii) The impugned judgment dated 23.01.2015 passed by the Sessions Judge, Mandya in Crl.A.No.30/2015 and the judgment dated 31.03.2015 passed by the JMFC, Mandya in C.C.No.376/2010 are affirmed except the part of the judgment awarding one year imprisonment. - 8 - HC-KAR NC: 2025:KHC:31994 CRL.RP No. 236 of 2016 (iii) The accused shall undergo three months simple imprisonment, in case of default of paying balance fine amount before the Trial Court, within two months from today. Sd/- (ANANT RAMANATH HEGDE) JUDGE BRN/List No.: 2 Sl No.: 34