- 1 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF MARCH, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO.482 OF 2018 (397(Cr.PC) / 438(BNSS) BETWEEN: SRINIVAS BHAT S/O VENKATESH BHAT AGED ABOUT 63 YEARS, R/AT NO.13/2, 2ND FLOOR, ABOVE DTDC COURIER SERVICES NO.13, CAMPBELL ROAD, BANGALORE-560 047 …PETITIONER (BY SRI G.C.SRIHARSHA FOR SRI NISHIT KUMAR SHETTY, ADVOCATES) AND: H V SHIVAJI S/O H VENKATASWAMY AGED ABOUT 58 YEARS, R/AT NO.14/48, VIDYAMANYANAGAR ANDHARAHALLY BANGALORE-560 091 …RESPONDENT (BY SMT.DHANALAKSHMI.K, ADVOCATE -ABSENT) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 17.05.2017 MADE IN C.C.No.4779/2011 BY THE COURT OF C.J.M., BANGALORE RURAL DISTRICT, BANGALORE AND THE JUDGMENT AND ORDER DATED Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 27.03.2018 MADE IN CRL.A.No.65/2017 BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL ORDER Heard Sri G.C. Sriharsha, appearing on behalf of Sri Nishit Kumar Shetty, counsel for the petitioner. None appears for the respondent. 2. Accused who suffered an order of conviction dated 17.05.2017 in C.C.No.4779/2011 for the offence punishable under Section 138 of the Negotiable Instruments Act, on the file Chief Judicial Magistrate, Bengaluru Rural District, confirmed in Criminal Appeal No.65/2017, dated 27.03.2018, on the file of I Additional District and Sessions Judge, Bengaluru Rural District, is the revision petitioner. 3. Facts in the nutshell which are utmost necessary for disposal of the revision petition are as under: 3.1. In respect of a dishonored cheque, a complaint came to be lodged under Section 200 of Code of Criminal - 3 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 Procedure alleging the commission of the offence under Section 138 of Negotiable Instruments Act before the jurisdictional Magistrate. 3.2. Contents of the complaint would reveal that accused has borrowed hand loan in a sum of Rs.10,00,000/- for purchase of a flat in his native place at Gulbarga with a promise to return the same within six months. Complainant paid sum of Rs.8,50,000/- in the first week of October 2009 and he demanded for the payment of the hand loan in the month of June 2010. 3.3. Accused said to have taken time to repay the same till October 2010. In the second week of October again when the repayment of the loan amount was demanded, accused said to have issued two cheques in a sum of Rs.50,000/- and Rs.8,00,000/- respectively. As per the promise made by the accused, Cheque No.451637 in a sum of Rs. 8,00,000/- was presented before the bank on 03.01.2011, which got dishonored with an endorsement ‘Insufficient Funds’ on 04.01.2011. - 4 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 3.4. Complainant issued a legal notice on 03.02.2011 demanding repayment of the amount covered under Cheque. Despite service of notice, there was no compliance to the callings of notice and there was no reply. Therefore, complainant sought for action against the accused. 4. Learned Trial Magistrate after completing the necessary formalities, summoned the accused and recorded the plea. Accused pleaded not guilty therefore trial was held. 5. In order to prove the case of the complainant, he got examined himself as P.W.1 and placed on record six documents which were marked as Ex.P1 to Ex.P6, comprising of cheque, bank endorsement, copy of the legal notice, postal acknowledgment and postal receipt. 6. As against the material evidence placed on record by the complainant, accused got examined himself as D.W.1 and two witnesses namely, Kulathimery and Chethana as D.W.2 and D.W.3 and placed on record copy of the complaint lodged with Ashok Nagar Police Station on 20.09.2010 and letter dated 21.09.2010 addressed to Manager Syndicate Bank as Ex.D.1 and Ex.D.2. - 5 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 7. On conclusion of recording of evidence, learned Trial Magistrate heard the arguments of the parties and convicted the accused on appreciation of the material evidence on record and sentenced as under: “Acting U/s 264 of Cr.P.C. I hereby convict the accused for the offence punishable U/S.138 of N.I.Act. It is ordered that the accused shall under go simple imprisonment for a period of three months and she shall pay a fine of Rs.11,00,000/-. In default of payment, the accused shall also under go further simple imprisonment for a period of one month. Acting U/s 357 of Cr.P.C, I hereby ordered that out of the fine imposed on the accused, Rs.10,75,000/- shall be paid in favour of the complainant as compensation. It is made clear that, by under going default sentence the accused cannot avail the benefit of not paying the amount, in view of Section 421 of Cr.P.C. The bail bond of the accused and that of her surety shall stands cancelled.” - 6 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 8. Being further aggrieved by the same, accused is before the District Court in Crl.A.No.65/2017. 9. Learned Judge in the First Appellate Court after securing the records, heard the parties in detail and dismissed the appeal by considered judgment dated 27.03.2018, inter alia holding in paragraph No.16 to 19 as under: “16. As far as above defence of the accused that the complainant, his wife and some goondas barged into his house, wrongfully confined him in his own house, forcefully took cheques from him, is concerned, there is no trustworthy evidence placed before the court. If such an incident had occurred, then definitely, the accused would have filed complaint to the Police immediately. The complainant barging into his house, wrongfully confining him, forcibly taking him to his bank, withdrawing Rs.45,000/- and then taking 4 signed blank cheques are all serious criminal acts. If such incidents had occurred, no ordinary prudent man would keep quite without taking any legal action at the earliest. In this case, the alleged incident had occurred 17-09-2010 and the alleged complaint at Ex.D.1 was given on 29-02-2010. Though Ex.D.1 is seriously disputed, it is not proved. Moreover, such a stand was taken by the accused for the first time in the cross- examination of P.W.1. However, D.W.1 neither produced acknowledgement issued by the - 7 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 Police nor the FIR registered by the Police. If at all the accused had filed F.I.S. at Ex.D.1, definitely the Police would have registered the FIR. D.W.1 did not whisper anything about Ex.D.1 till his examination. During the cross- examination of P.W.1, no suggestion was made in respect of Ex.D.1. So, it is not safe to believe that actually D.W.1 had filed F.I.S. at Ex.D.1 before the Police. It appears it is created to support his defence. 17. Admittedly, the legal notice was served on the accused on 05-02-2011. If at all, above stand taken by the accused were to be true, definitely he would have issued suitable reply denying his liability to pay the cheque amount. At the earliest point of time, he had the opportunity, but he did not utilize it. This would enable the court to infer that the defence taken about the alleged incident happened on 17-09-2010 is an after thought event just to make out his defence. 18. Further, if at all the complainant had forcefully took 4 signed blank cheques from him, the accused should have given an intimation to his banker to stop the payment in respect of those cheques. D.W.1 has produced Ex.D.2-stop payment letter issued to his banker. It does not pertain to Ex.P.1- cheque. Though he mentioned few other cheque numbers, why Ex.P.1- cheque is not mentioned in Ex.D.2 is not properly explained by the accused. So production of Ex.D.2 is of no use to the accused. - 8 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 Even the Bank Manger is not examined before the court. That shows the accused did not issue stop payment in respect of cheque-Ex.P.1 alleged to had been forcefully taken by the complainant. That shows, the accused had voluntarily issued Ex.P.1 in favour of the complainant for discharge of legally recovered debt, therefore, he did not mention Ex.P.1- cheque number in Ex.D.2. 19. Yet another important point to be considered and which creates doubt about the case of the accused is the way in which he tried to change his stand at different stages. In the initial part of cross- examination of P.W.1, the accused has gone to the extent of denying his acquaintance with P.W.1. Then, totally denied the loan transaction between him and the complainant. The only defence, which he put to P.W.1 in the cross- examination is that cheque Ex.P.1 is stolen cheque from his house. However, in his affidavit at para-2; D.W.1 admits that in the month on July 2009, he borrowed hand loan of Rs.1,75,000/- from the complainant with a condition to repay it with interest on a monthly sum of Rs.6,450/-. The case of the complainant is also that in July 2009, the accused borrowed hand loan of Rs.8,50,000/-. The fact that cheque for Rs.50,000/- issued by the accused was got en- cashed by the complainant is admitted by the accused. Thus, in all probability the complainant has proved that there was a financial transaction between him and the accused. This goes to show - 9 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 that the accused has tried to suppress the real truth. It creates serious doubt about accused’s defence. The accused has not produced material evidence before the court to show that he had borrowed Rs.1,75,000/- and not Rs. 8,50,000/- from the complainant. On the contrary, the evidence of P.W.1 and Ex.P.1 support the case of the complainant that he lent Rs.8,50,000/- and in re-payment of it, the accused issued two cheques and one among them is Ex.P.1. In view of these facts, this court is of the considered view that whatever evidence lead by D.W.1 and D.W.2 is not trustworthy. They being interested witnesses and their self serving evidence with full of contradictions, omissions and improvements is not believable. Thus, the above ground urged by the accused has to be rejected.” 10. Being further aggrieved by the same, accused is before this court in this revision. 11. Sri G.C. Sriharsha learned counsel for the revision petitioner representing Sri Nishit Kumar Shetty and reiterating the grounds urged in the revision petition would content that both the Courts have not properly appreciated the material evidence on record, wrongly convicted the accused and sought for allowing the revision petition. - 10 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 12. He would further invite the attention of this Court that the transaction as is enunciated by the complainant is not established and self-serving testimony of the complainant alone would not be sufficient for having lent the huge sum of Rs.8,50,000/- and very fact that the complainant has not taken action against another cheque with a sum of Rs.50,000/- and has restricted the claim only with regard to the cheque in the case on hand in a sum of Rs. 8,00,000/-, exposes the holiness in the claim of the complainant and sought for allowing the revision of petition. 13. Respondent counsel absent. 14. In the light of the argument put forth on behalf of the petitioner, this Court perused the material on record meticulously. 15. On such perusal of the material on record there is no dispute with regard to the cheque which is marked at Ex.P1. Cheque belongs to the accused and signature found therein is that of the accused. Defence taken by the accused that the cheque has been misused cannot be countenanced in law in the absence of any reply to the legal notice nor any positive action - 11 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 in pursuing with the complaint that has been filed and marked as Ex.D1. 16. Under such circumstances, the learned Trial Magistrate and learned judge in the First Appellate Court was justified in convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act as oral evidence of D.W.1 to D.W.3 coupled with Ex.D.1 and Ex.D.2 were not sufficient to rebut the presumption available to the complainant. 17. Therefore, having regard to the limited revisional jurisdiction, this Court does not find any good grounds to annul the finding of the guilt of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and as such, conviction needs to be maintained. 18. Having said thus, It is noticed that the learned Trial Magistrate has ordered the payment of the fine amount and the simple imprisonment for three months for the offence punishable under Section 138 of the Negotiations Act, which has been upheld by the learned judge in the First Appellate Court. - 12 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 19. Since primary object of enacting the provision under Section 138 of the Act is to recover the money at the earliest, the jail sentence should always be in the alternative of payment to the fine amount. 20. In the case on hand, no justifiable reasons are forthcoming in the judgment of the Trial Magistrate or the judgment of the First Appellate Court to order for both fine and imprisonment. As such, the same needs to be modified. 21. Accordingly, the following: ORDER (i) Criminal revision petition is allowed in part. (ii) While maintaining the conviction of the revision petitioner for the offence punishable under Section 138 of Negotiable Instruments Act and maintaining the fine amount payable by the accused to the complainant, the imprisonment period which is also ordered along with the fine amount is modified by directing that in the event the accused/revision petitioner fails to pay the fine amount on or before 31.03.2026, the - 13 - HC-KAR NC: 2026:KHC:13726 CRL.RP No. 482 of 2018 sentence ordered by the Trial Magistrate, confirmed by the First Appellate Court shall come into operation. (iii) In other words, if the accused pays the fine amount, the imprisonment period ordered by the Trial Magistrate, confirmed by the First Appellate Court stand set aside. (iv) Office is directed to send the Trial Court records with copy of this order for issue of modified conviction warrant. Sd/- (V SRISHANANDA) JUDGE MR List No.: 1 Sl No.: 61