The High Court
Case Details
- 1 - NC: 2025:KHC:16028 CRL.RP No. 142 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 142 OF 2018 BETWEEN: SRI. N.B KRISHNARAJ AGED ABOUT 53 YEARS S/O LATE N.A. BOPAIAH, R/AT NAGARALLI VILLAGE, KUNDHALLI POST, SOMWARPET TALUK, KODAGU DISTRICT-571 236 (BY SRI. VIJAY KRISHNA BHAT, ADVOCATE) …PETITIONER AND:
Legal Reasoning
SRI. M.A SHEIKFEER AGED ABOUT 48 YEARS S/O ABUBAKAR, R/AT HOSPITAL ROAD, MADAPAURA, KODAGU DISTRICT-571 251. (BY SRI. M.N. JAGADISH BALIGA, ADVOCATE) …RESPONDENT THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 23.11.2017 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU AT MADIKERI IN CRL.A.NO.51/2016. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAJESH RAI K Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16028 CRL.RP No. 142 of 2018 ORAL ORDER In this revision petition, the revision petitioner/accused has assailed the judgment dated 23.11.2017 passed by the Court of I Addl. District and Sessions Judge, Kodagu at Madikeri (hereinafter referred to as 'the First Appellate Court') in Crl.A.No.51/2016, whereby the First Appellate Court dismissed the appeal filed by the revision petitioner and confirmed the judgment of conviction and order of sentence passed by the Court of Addl. Civil Judge and JMFC, Madikeri (hereinafter referred to as 'the Trial Court') in C.C.No.579/2009 dated 16.07.2016. 2. Parties are referred to as per their rankings before the Trial Court. 3. The factual matrix of the prosecution case, in brief, is as follows: The accused is an acquaintance of the complainant and are dear friends. Under the pretext of urgent financial necessity, the accused borrowed a sum of Rs.1,50,000/- from the complainant as hand loan in the month of June, 2008. To discharge the said liability, the accused issued a cheque bearing - 3 - NC: 2025:KHC:16028 CRL.RP No. 142 of 2018 No.019592 drawn on Corporation Bank, Shantalli Branch dated 02.12.2008 for a sum of Rs.1,50,000/- as per Ex.P1. When the complainant presented the said cheque through his banker, the same was returned with an endorsement 'Funds Insufficient'. The same was intimated to the accused by the complainant by issuing a legal notice dated 12.12.2008. The said notice was duly served to the accused on 20.12.2008. Despite, the accused neither replied to the notice nor repaid the hand loan. Hence, the complainant filed the private complaint under Section 200 of Cr.P.C against the accused for the offence punishable under Section 138 of the Negotiable Instrument Act (hereinafter referred to as 'the NI Act') before the Trial court. 4. To prove the case before the Trial court, the complainant examined himself as PW.1 and marked 12 documents as Exs.P1 to P12. The accused examined himself as DW.1 along with another witness-DW.2 and marked 4 documents. 5. On assessing oral and documentary evidence, the Trial Court convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced as under: - 4 - NC: 2025:KHC:16028 CRL.RP No. 142 of 2018 "ORDER Acting Under Section. 255(2) of Cr.P.C, the accused is convicted for an offence punishable Under Section 138 of Negotiable Instrument Act. imprisonment As a result the accused shall undergo simple for a period of six months.He shall also liable to pay a fine of Rs.5,000/-,in default to pay fine, the accused shall undergosimple imprisonment for a period of two months. Acting Under Section.357(3) of Cr.P.C. I hereby direct the accused to pay compensationof Rs.1,50,000/- to the complainant. The bail bond and surety bond of the accused stands cancelled." 6. Aggrieved by the above judgment, the accused approached the First Appellate Court in Crl.A.No.51/2016. The First Appellate Court, on re-assessing the entire evidence on record dismissed the appeal filed by the accused by confirming the judgment of conviction and order of sentence passed by the Trial Court. Challenge to the same is lis before this Court. 7. I have heard Sri. Vijay Krishna Bhat M., the learned counsel for the revision petitioner and Sri. M.N. Jagadish Baliga for the respondent. 8. The primary contention of the learned counsel for the revision petitioner/accused is that the Trial Court and the - 5 - NC: 2025:KHC:16028 CRL.RP No. 142 of 2018 First Appellate Court grossly erred while convicting the accused for the offence punishable under Section 138 of the N.I. Act without appreciating the evidence in right perspective. He further contended that the complainant failed to prove lending capacity of Rs.1,50,000/-; the Trial Court and the First Appellate Court failed in considering the defence advanced by the accused. Accordingly, he prays to allow the revision petition. 9. Per contra, learned counsel for the respondent contended that the Trial Court and the First Appellate Court on meticulously examining the comprehensive evidence on record, passed well-reasoned judgments which do not call for any interference at the hands of this Court. He further contended that, even upon the legal notice being served the accused failed to reply the same. The defence advanced by the accused is not probable one to rebut the initial presumption arising under Sections 118 and 139 of N.I. Act by placing cogent documents. In such circumstances, both the Courts below have rightly passed the impugned judgments. Accordingly, he prays to dismiss the revision petition. - 6 - NC: 2025:KHC:16028 CRL.RP No. 142 of 2018 10. I have given my anxious consideration on the arguments advanced by the learned counsel for the respective parties so also perused the materials and evidence placed before me. As could be gathered from records, the issuance of the cheque in question and the signature of the accused on the cheque-Ex.P1 is not disputed. It is further defence of the accused that the cheque in question was obtained by the complainant seeking monetary assistance to the accused to purchase a car. However, the accused neither examined any witness to prove the said defence nor replied to the complainant's legal notice. Albeit initiation presumption under Section 118 and 139 of the N.I. Act is a rebuttal one, however, as per the law laid down by the Hon'ble Apex Court in catena of judgments, for initial rebuttal presumption the accused has to advance probable defence by placing cogent documents. In the instant case, the accused failed to place such reliable documents to rebut the initial presumption. Against this backdrop, I find no good grounds to interfere in the impugned judgments passed by the Courts below in respect of the compensation awarded to the complainant. - 7 - NC: 2025:KHC:16028 CRL.RP No. 142 of 2018 11. Albeit, there is a substantive force in the alternative contentions raised by the learned counsel for the revision petitioner that the conviction and sentence imposed by the trial Court which was upheld by the First Appellate Court for the offence punishable under Section 138 of the N.I. Act, requires to be modified since the Trial Court and the First Appellate Court had already directed the accused to pay a compensation of Rs.1,50,000/- i.e., cheque amount. In that view of the matter, the judgment passed by the Trial Court in C.C.No.579/2009 which was confirmed/clarified by the First Appellate Court in Crl.A.No.51/2016 with respect to substantive sentence for the offence punishable under Section 138 of the N.I. Act i.e., simple imprisonment for a period of six months and fine of Rs.5,000/- is hereby set-aside by confirming the judgment passed by both the Courts below in respect of the compensation amount. Accordingly, the revision petition is allowed in part. SD/- (RAJESH RAI K) JUDGE HKV List No.: 1 Sl No.: 16