- 1 - NC: 2025:KHC-K:853 CRL.RP No. 200012 of 2017 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 5TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY CRIMINAL REVISION PETITION NO. 200012 OF 2017 (397(Cr.PC)/438(BNSS)) BETWEEN: SHAMBULINGAPPA S/O SANGAPPA ANKALAGI, AGE: ABOUT 53 YEARS, OCC: STENOGRAPHER IN DEPT. OF IQAC (ADMINISTRATION) GULBARGA UNIVERSITY, KALABURAGI. …PETITIONER (BY SRI MAHANTESH H. DESAI, ADVOCATE) AND: MALLIKARJUN S/O SANGAPPA MUGALI, AGE: ABOUT 60 YEARS, OCC: RETD. EMPLOYEE OF CCI LTD. KURKUNTA CEMENT FACTORY, SEDAM, TQ. SEDAM, DIST. KALABURAGI. …RESPONDENT (BY SRI AVINASH A. UPLAONKAR AND SRI RAVI K. ANOOR, ADVOCATES) THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C PRAYING TO ALLOW THE CRIMINAL REVISION PETITION U/S 397 AND 401 OF CR.P.C. FILED BY THE REVISION PETITIONER AND SET ASIDE THE ORDER DATED 14-12-2016 PASSED BY THE HON'BLE I ADDL. SESSIONS JUDGE, KALABURAGI IN CRL.APPEAL NO.71/2015 AND ALSO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 17-8-2015 Digitally signed by SHIVAKUMAR HIREMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:853 CRL.RP No. 200012 of 2017 PASSED BY IV ADDL. CIVIL JUDGE & JMFC, KALABURAGI IN C.C.NO.1885/2011 AND ACQUIT THE PETITIONER/ACCUSED FOR THE OFFENCE PUNISHABLE U/S 138 OF N.I. ACT. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY ORAL ORDER (PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY) This criminal revision petition under Section 397 read with Section 401 of Cr.P.C., is filed by the accused challenging the Judgment of conviction and order of sentence passed by the Court of IV Additional Civil Judge and JMFC Court, Kalaburagi, in C.C.No.1885/2011 dated 11.08.2015, which is confirmed in Criminal Appeal No.71/2015 by the Court of I Additional Sessions Judge, at Kalaburagi, vide Judgment and order dated 14.12.2016. 2. Heard the learned counsel for the parties. 3. The respondent herein had initiated proceedings against the petitioner before the trial Court for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short ‘N.I.Act’) in C.C.No.1885/2011. It is the case - 3 - NC: 2025:KHC-K:853 CRL.RP No. 200012 of 2017 of the respondent that, the petitioner had borrowed a loan of Rs.3,00,000/- from the respondent and towards the repayment of the said amount, he had issued cheque in question bearing No.478054 dated 04.05.2010, drawn in favour of the respondent for a sum of Rs.3,00,000/-. The said cheque on presentation for realization was dishonoured by the drawee Bank and therefore, a legal notice dated 11.10.2010 was got issued to the petitioner by the respondent. In spite of service of notice, the amount covered under the cheque in question was not paid by the petitioner and therefore, the respondent was constrained to approach the trial Court by filing a complaint against the petitioner, alleging that, he had committed the offence punishable under Section 138 of N.I.Act. In the said proceedings, the petitioner who had appeared before the trial Court, had claimed to be tried. The respondent therefore, had examined himself as P.W.1 and two other witnesses were examined as P.W.2 and P.W.3. In support of his case, 18 documents were marked as Ex.P.1 to Ex.P.18. On behalf of the defence, the petitioner examined himself as D.W.1, but no documents - 4 - NC: 2025:KHC-K:853 CRL.RP No. 200012 of 2017 were got marked in support of the defence. The trial Court after hearing the arguments addressed by both sides, vide impugned Judgment and order dated 17.08.2015, convicted the petitioner for the offence punishable under Section 138 of N.I.Act and sentenced him to pay fine of Rs.3,85,000/- and in default to undergo simple imprisonment for a period of six months. The said Judgment and order of conviction passed by the trial Court in C.C.No.1885/2011 was confirmed in Criminal Appeal No.71/2015 by the Court of I Additional Sessions Judge, Kalaburagi. Being aggrieved by the same, the petitioner is before this Court. 4. Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that, the Courts below have failed to properly appreciate the oral and documentary evidence available on record. The respondent had failed to prove the transaction and also his capacity to pay the amount to the petitioner. Therefore, the trial Court was not justified in convicting him. - 5 - NC: 2025:KHC-K:853 CRL.RP No. 200012 of 2017 5. Per contra, learned counsel for the respondent has argued in support of the impugned Judgment and order, and prays to dismiss the revision petition. 6. A perusal of the material on record would go to show that, the cheque in question was undisputedly drawn on the account of the petitioner maintained by him in State Bank of Hyderabad, University Branch, Gulabarga. The signature found in the cheque is also not in dispute. Therefore, a presumption under Section 139 of N.I.Act arises as against the petitioner. It is the specific contention of the petitioner that, though he had approached the respondent seeking financial assistance, the respondent had not paid him any amount and on the other hand, he had assured to arrange financial assistance from a third party and with that assurance, he had collected signed blank cheques from him in Hotel Pariwar. Thereafter, he had not arranged the financial assistance as assured and on the other hand, he had misused the cheque in question and initiated criminal proceedings. - 6 - NC: 2025:KHC-K:853 CRL.RP No. 200012 of 2017 7. The respondent was working as a employee in a private Cement Factory and therefore, his financial capacity to pay a sum of Rs.3,00,000/- to the petitioner cannot be doubted. The respondent has proved his transaction with the petitioner by examining P.W.2 and P.W.3. The evidence of P.W.2 and P.W.3 corroborates with the evidence of P.W.1. Though defence has cross-examined them, nothing worth has been elicited from the mouth of anyone of the witness to discredit their evidence. The petitioner who has put forward a defence has failed to probabalize the same by producing necessary material before the Court in support of his defence. On the other hand, the respondent in addition to the aforesaid oral evidence of P.W.1 to P.W.3 had produced documentary evidence at Ex.P.1 to Ex.P.18 and perusal of the aforesaid material would clearly show that, the cheque in question which was issued by the petitioner was dishonoured by the drawee Bank for the reason that, ‘funds were insufficient’ in the Bank account of the petitioner. Thereafter the respondent had got issued a legal notice to the petitioner claiming the amount covered under the cheque in question. - 7 - NC: 2025:KHC-K:853 CRL.RP No. 200012 of 2017 In spite of service of notice, the petitioner had not paid the amount covered under the cheque and therefore, the cause of action to file a complaint against the petitioner for the offence punishable under Section 138 of N.I.Act had arisen and accordingly a complaint was filed by the respondent. As stated earlier, since the cheque in question and the signature in the cheque in question are not in dispute, a presumption under Section 139 of N.I.Act, arises in this matter, against the petitioner and unless it is rebutted by putting up a probable defence, the petitioner is liable to be punished for the alleged offence. In the case on hand, the petitioner has failed to rebut the presumption that arose against him under Section 139 of N.I.Act and therefore, the Courts below were fully justified in convicting him for the alleged offence. I do not find any illegality or irregularity in the impugned Judgment of conviction and order of sentence passed by the Courts below which calls for interference by this Court in exercise of its revisional powers. - 8 - NC: 2025:KHC-K:853 CRL.RP No. 200012 of 2017 8. Under the circumstances, I am of the opinion that, this revision petition lacks merits. Accordingly, the petition is dismissed. 9. The respondent-complainant is at liberty to withdraw the amount deposited if any by the petitioner before the trial Court. Sd/- (S.VISHWAJITH SHETTY) JUDGE SVH List No.: 1 Sl No.: 53 CT:PK