- 1 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 28TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO. 100006 OF 2021 (397(CR.PC)/438(BNSS)) BETWEEN: KUBERAPPA S/O SOMAPPA @ SOMSHEKARAPPA CHORAGASTI AGE. 66 YEARS, OCC. RTD., PRINCIPAL R/O. GADAG-582101. …PETITIONER (BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE) AND: SMT. SUMANGALA W/O ARAVIND AKKI AGE. 51 YEARS, OCC. HOME MAKER, R/O KABADI ROAD, TEGGINPET, BETGERI-GADAG-582102. …RESPONDENT (BY SRI. LINGARAJ L. RATHOD, ADVOCATE FOR SRI. SUBHASH J. BADDI, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT DATED. 07/10/2020 IN CR.A.NO.97/2015 PASSED BY THE LEARNED PRL. JUDGE FAMILY COURT AND DISTRICT AND SESSIONS JUDGE, GADAG, AND SET ASIDE THE JUDGMENT AND ORDER OF SENTENCE DATED.03/11/2015 IN CC NO.502/2009 PASSED BY THE LEARNED 1ST ADDL. CIVIL JUDGE AND JMFC-I, GADAG, AND ACQUIT THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SEC.138 OF NEGOTIABLE INSTRUMENT ACT, BY ALLOWING THE REVISION PETITION AS PRAYED FOR WITH COST, IN THE INTEREST OF JUSTICE AND EQUITY. CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Date: 2026.02.02 17:04:28 +0530 - 2 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Sri.Hanumanthareddy Sahukar, learned counsel for the revision petitioner and Sri.Lingaraj L. Rathod, learned counsel appearing on behalf of Sri.Subhash J. Baddi, learned counsel for the respondent. 2. Accused in CC No.502/2009 who has suffered an order of conviction under Section 138 of the Negotiable Instruments Act which was confirmed by the First Appellate Court in Crl.No.97/2015 is the revision petitioner challenging the validity of the conviction and sentence passed by the learned Trial Magistrate. 3. Facts of the case which are utmost necessary for disposal of the revision petition are as under: 3.1. A complaint came to be filed under Section 200 of Cr.P.C. alleging the commission of the offence under - 3 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 Section 138 of the Negotiable Instruments Act by contending that complainant and accused were good friends and in that connection, accused sought for grant of financial assistance to the tune of Rs.1,80,000/- which was lent to the accused by the complainant on 05.01.2009 at Gadag in the house of the complainant wherein the accused had agreed to repay the same within a period of two months. 3.2. Towards repayment of the same, accused said to have issued a cheque bearing No.639578 dated 05.03.2009 in a sum of Rs.1,80,000/-. Said cheque on presentation came to be dishonoured with an endorsement ‘funds insufficient’ on 09.04.2009. 3.3. Thereafter, a legal notice came to be issued by the complainant demanding the payment of the amount covered under the cheque which is duly served on the accused but there was no compliance instead accused said to have issued a paper publication stating that he has given - 4 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 the cheque to Laxmanasa Meharwade and thereafter, he died. 3.4. Therefore, complainant filed a private complaint against the accused and sought for action. 4. Learned Trial Magistrate after completing necessary formalities, secured the presence of the accused and recorded the plea. 5. Accused pleaded not guilty and therefore, trial was held. 6. In order to prove the case of the complainant, complainant got examined herself as P.W.1 and two witnesses namely Ravindra Ramachandra Purandwad and Huligeppa Hadimani as P.W.2 and 3. 7. Complainant placed on record, seven documentary evidence which were exhibited and marked as Exs.P.1 to 7 comprising of cheque, bank endorsement, - 5 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 challan book, endorsement of bank, office copy of the legal notice, postal acknowledgement and reply notice. 8. As against the material evidence placed on record by the complainant, two witnesses were examined on behalf of the accused as D.W.1 and 2 namely accused himself and Shekharappa Somappa Choragasti. 9. On behalf of the accused, five documentary evidence were placed on record comprising of Navodaya daily newspaper, certified copy of the order of the Bagalkot Court, death certificate of Laxmanasa Meharwade, office copy of the reply notice and acknowledgement for having sent the reply notice. 10. Learned Trial Magistrate after completing the recording of evidence, cumulatively appreciated the material evidence and convicted the accused. 11. Being aggrieved by the same, accused filed an appeal before the First Appellate Court in Crl.A.No.97/2015. - 6 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 12. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and dismissed the appeal inter alia holding in paragraph Nos.19 to 26 as under: “19. In cases filed under Section 138 of Negotiable Instruments Act, initial burden is cast upon Complainant to prove issuance of the cheque, bouncing of the cheque, issuance and service of notice. As soon as Complainant discharges the initial burden cast on him by leading cogent evidence, there is mandatory presumption in his favour as contemplated under the Act. 20. In present case, Complainant is examined as PW 1 and she reiterates her pleadings in complaint. Nothing is elicited in her cross- examination showing that accused had not borrowed money from her and that accused had not issued cheque in her favour. I have carefully perused complaint. Complainant produced 7 documents at Ex.P1 to Ex.P7. Ex.P1 is cheque which shows its number as 639578. Ex.P2 is bank return memo dated 31/03/2009. Ex.P3 is Account Pay in Slip. Ex.P4 is bank letter. Ex.P5 is legal notice, Ex.P6 is postal acknowledgement. Ex.P7 is - 7 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 reply notice. In view of evidence of PW 1 coupled with Ex.P1 to Ex.P7, it is to be held that Complainant has discharged initial burden cast upon her. Now, the burden shifts on the accused to rebut the same by leading rebuttal evidence which should be probable and capable of being accepted by the Court. 21. As can be seen from evidence on record, the main contention of accused seems to be that he had handed over 5 cheques to his brother as security in respect of the loan to be taken and in turn his brother had handed over the same to one Laxmanasa Meharwade. Said Meharwade had neither returned the cheques nor had given hand loan to his brother. Thereafter his brother issued public notice in news paper regarding handing over of the cheques to Meharwade. Complainant has filed present case misusing one of the cheques. 22. As soon as accused contends that he had handed over blank signed cheques to his brother who in turn handed over the same to one Laxmanasa Meharwade, the burden shifts on him to prove the same. significant to note that till this date accused has not filed any criminal complaint against Complainant on Meharwade alleging that they had misused blank cheques issued by him as - 8 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 security to take loan. It is significant to note that accused is not ordinary layman and he is Principal of Halsomeshwar School. Therefore it becomes difficult to believe that accused had kept quiet even though Complainant had misused blank cheques handed over to Meharwade. 23. It is pertinent to note that brother of the accused had issued paper publication stating that he had handed over blank cheques to one Meharwade. Instead he could have filed police complaint against said Meharwade. No reason is forthcoming from the accused as to why he did not file complaint against said Meharwade. This is fatal to the case of accused. It has become settled principle of Law that if accused contends that he had handed over blank cheques, presumption is that he did so knowing its consequences and therefore he cannot get any protection under Law. Thus contention of the accused that he had handed over blank cheques for securing loan does not hold any water. 24. Accused has examined his brother as D.W.2. I have carefully perused his evidence and have no hesitation to say that there is nothing in his evidence.Ex.D1 is paper publication. Ex. D2 is Judgment passed by Civil Judge Court, Bagalkot. - 9 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 Ex.D3 is death certificate of Laxmanasa Meharwade. Ex.D4 is reply. Ex.D5 is postal acknowledgement. Ex.D6 is Judgment passed in some other court at Bagalkot. Ex. D7 is written statement filed in O.S.No.184/09, Ex.D8 is affidavit filed in said suit. Ex.D9 is order sheet in said suit and Ex.D10 is certified copy of documents in said suit. These documents do not come to aid of accused in any way. Only because accused was acquitted in those proceedings, that does not mean that present accused also is to be acquitted in present case. After going through materials on record 1 am of the clear opinion that story of accused of him handing over 5 blank signed cheques to his brother and his brother handing over the same to one Laxmanasa Meharwade for taking loan and complainant misusing those cheques and filing false case against him has not seen light of the day and that accused has not put forth any material in support of his defence. 25. I have already held that Complainant has successfully proved guilt of the accused in respect of Ex.P1 cheque and that Complainant has filed present complaint after complying all the requirement of Sec. 139 and 142 of Negotiable Instruments Act. So, it is crystal clear that accused - 10 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 has committed the offence punishable under Section 138 of the Negotiable Instruments Act. 26. The Trial Court has examined materials before it in right perspective and had properly appreciated the oral and documentary evidence adduced before it and has rightly come to the conclusion that the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act and it has rightly convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and had rightly sentenced the accused to pay fine amount of Rs.1,90,000/- and in default to undergo simple imprisonment for a period of six months and had further ordered that out of fine amount Rs.10,000/- was to be forfeited to State and remaining amount was to be paid to complainant as compensation. I have no reason to interfere with findings given by the Trial Court. I am of the opinion that present appeal lacks merits. Accordingly, I answer Points No.1 and 2 in the Negative.” 13. Being further aggrieved by the same, accused filed the present revision petition on following grounds: - 11 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021  “That the judgment and order of sentence passed by the courts below are illegal, arbitrary, highly illegal, hence the same are liable to be set aside.  That both the courts below have failed to see that the respondent has not produced any document to show that there is a transaction between the petitioner and respondent. The respondent has not produced any document to show that he has paid the huge alleged amount of Rs.1,80,000/- to the petitioner without obtaining any security of valuable property from the petitioner. The courts below have failed to see that the respondent has not proved that there is a legally recoverable debt. In the absence of any document to show that the respondent has paid the alleged huge amount, the courts below ought not to have convicted the petitioner.  That the courts below have failed to see that the respondent has not produced any document to show that he is having source of income to lend such a alleged huge amount to the respondent. The courts below ought to have held that the respondent has not produced any document to show that the respondent has lent such huge - 12 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 alleged amount. The respondent has not produced income tax returns to establish that she has paid such a alleged huge amount to the respondent and she is having so much of source of income. In the absence of the same the courts below are not justified in convicting the petitioner, hence the order of the courts below are liable to be set aside.  That the trial court wrongly convicted the petitioner for the sum of Rs.1,90,000/- When the transaction is not proved the question of conviction does not arise, this aspect has not been considered by the trial court and appellate court, hence the order of conviction passed by the trial court and confirmed by the appellate court are liable to be set aside.  That the trial court and appellate court have not properly considered the documents and evidence of the petitioner to the effect that the cheque is not given to the respondent. The brother of the petitioner issued five cheques to one Mr. Lakshmana R. Merwade for security. Lakshmansa R Merwade died on 14.1.2009. After his death brother of the petitioner asked the family members regarding the said cheuqes but they are not returned. Therefore the brother - 13 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 of the petitioner issued legal notice to the family members through paper publication, Hence there is no legally recoverable debt. Hence the order passed by the trial court and the appellate court are liable to be set aside.  That the order passed by the trial court and appellate court are on assumption and presumption and wrongly convicted the petitioner. Hence the order passed by the courts below are liable to be set aside.  That the trial court and appellate court failed to see that the petitioner lead the evidence to rebut the presumption. The petitioner examined himself as DW 1 and one witness D.W 2 and produced the documents at Ex. D 1 to Ex. D 5. Hence the order passed by the trial court and appellate court are liable to be set aside.” 14. 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 defence taken by the accused and wrongly raised the presumption in favour of the - 14 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 complainant resulting in miscarriage of justice and sought for allowing the revision petition. 15. He would further contend that the probative value of paper publication issued by the accused and also the probative value of certified copy of the order passed by the Bagalkot Court is not properly appreciated while considering the case of the accused resulting in miscarriage of justice and sought for allowing the revision petition. 16. Per contra, learned counsel for the respondent supports the impugned judgments. 17. He would further contend that the theory of cheque being handed over to a person who is no more and misuse thereof has not been established by the accused atleast by placing plausible evidence on record. 18. Therefore, the appreciation of material evidence on record by both the Courts and conviction of the revision - 15 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 petitioner is just and proper and sought for dismissal of the revision petition. 19. Having heard the arguments of both the parties, this Court perused the material on record meticulously. 20. On such perusal of the material on record, there is no dispute that Ex.P.1 – cheque belongs to the accused and signature found therein is that of the accused. The defence that has been put forth by the accused is that the cheque was given to Laxmanasa Meharwade who is no more and said cheque has been misused by the complainant for wrongful gain. 21. To establish the same, apart from self-serving testimony of D.w.1, accused got examined another witness as D.W.2. 22. He has also placed on record Ex.D.1 which is a paper publication issued in Navodaya newspaper. As per the same, cheque was issued by the accused to said - 16 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 Laxmanasa Meharwade who is no more and it has been misused. 23. If it is so, when the accused has contacted his Advocate for issue of reply, it was necessary for the accused to file necessary police complaint or to take appropriate action for misappropriation of the valuable security namely cheque that has been done by the accused. 24. Further, accused has also not taken any action even after his conviction against the complainant. 25. Another complainant who according to the accused having misused the cheque resulting in acquittal by the Court at Bagalkot, will not have any bearing on the merits of the matter in rebutting the statutory presumption available on record in view of the admission of the fact that cheque belongs to the accused and signature found therein is that of the accused as is contemplated under Section 139 of the Negotiable Instruments Act. - 17 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 26. In this regard, the position of law is well settled in the case of Rangappa v. Sri.Mohan reported in (2010) 11 SCC 441 and the similar principles has been reiterated by the Hon’ble Apex Court in the case of Rajesh Jain v. Ajay Singh reported in (2023) 10 SCC 148. 27. Taking note of the above legal principles enunciated in the above decision, it is crystal clear that the defence evidence though taken by the accused that it has been issued to Laxmanasa Meharwade, is not probabilised. 28. Further, if the complainant is a stranger, how she would be in a position to come to know the address of the accused and the cheque in fact belonged to the accused. 29. These aspects of the matter when viewed cumulatively, the theory put forward by the accused that the complainant is a stranger cannot be countenanced in law. - 18 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 30. Moreover, having regard to the scope of the revision petition, this Court cannot revisit into the factual aspects of the matter. 31. When two Courts have recorded the factual finding that the accused is guilty of the offences punishable under Section 138 of the Negotiable Instruments Act more so, in view of the presumption available to the complainant under Section 139 of the Negotiable Instruments Act, this Court does not find any legal infirmity or perversity in the impugned judgments. 32. This would take this Court to the next question namely whether the sentence is excessive. 33. Admittedly, the transaction is of the year 2008 and criminal case itself is of the year 2009, learned Trial Magistrate has imposed fine of Rs.1,90,000/- and in the absence of any revision petition by the complainant seeking enhancement of the sentence, this Court does not find any good grounds to alter the same sentence. - 19 - HC-KAR NC: 2026:KHC-D:1014 CRL.RP No. 100006 of 2021 34. Accordingly, the following: ORDER Revision petition is meritless and hereby dismissed. Sd/- (V.SRISHANANDA) JUDGE KAV CT-CMU LIST NO.: 1 SL NO.: 15