MR. RAMESH v. SRI. SAIRAM JAYAPPA JADAMALI

revision petitioner and Sri Gurudev Gachchinamath, learned counsel for respondent No.1(a to c).

2. Accused, who suffered an order of conviction in C.C. No.394/2019 for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, N.I. Act) and ordered to pay a fine of Rs.3,05,250/- was ordered to be paid as compensation being the cheque amount and balance sum of Rs.5,000/- towards the defraying expenses of the State, which got confirmed in Crl.A.No.22/2022 is the revision petitioner. - 3 - NC: 2025:KHC-D:6178 CRL.RP No. 100412 of 2023

3. Facts the nutshell which are utmost necessary for disposal of the revision petition are as under:

3.1. A complaint came to be Lord under Section 200 of Cr.P.C. alleging the commission of the offence under Section 138 of N.I. Act by contending that complainant sold cotton to the tune of 4,550 kg to the accused-firm. The cotton was unloaded through vehicle bearing No.KA- 09/2161 on 20.12.2018 at the rate of Rs.5,600/- per quintal. Accused has paid the amount in respect of the sold cotton to the complainant through cheque bearing No.206710 in a sum of Rs.2,46,710/- after deducting hamali and another charges. The said cheque was honoured and the amount therein was encashed by the complainant.

3.2. Again in respect of unloaded cotton to the tune of 5,590 kg through vehicle bearing No.KA-27/B-1582, accused said to have issued a cheque bearing No.206709 in a sum of Rs.3,03,350/- which on presentation, came to be dishonoured with an endorsement ‘payment stopped by - 4 - NC: 2025:KHC-D:6178 CRL.RP No. 100412 of 2023 the drawer’ on 17.01.2019. Legal notice was issued which was not complied by the complainant nor any reply was sent. Therefore, complaint came to be filed.

3.3. After completing necessary formalities, accused was summoned and plea was recorded. Accused pleaded not guilty. Therefore, trial was held.

4. Complainant got examined himself as PW-1 and placed on record 11 documents which are exhibited and marked as Exs.P-1 to P-11.

5. To rebut the presumption available to the complainant, accused got examined himself as DW-1 and two witnesses viz., Mallappa Halemani and Kiran T.R. as DW-2 and DW-3. Accused placed on record 15 documents which are exempted and marked as Exs.D-1 to D-15.

6. On conclusion of recording of evidence, learned Trial Judge heard the parties in detail and in view of the rival contentions of the parties, considered the material - 5 - NC: 2025:KHC-D:6178 CRL.RP No. 100412 of 2023 evidence on record convicted the accused inter alia holding in paragraph Nos.28 and 29 as under: “28. The counsel for the accused quoted some of the rulings which is reported in 1) Basalingappa V/S Mudibasapра (2019) 5 SCC 418, 2) Ramdas V/S Krishnanand 2015 Crl LJ 1156 3) Murtuja V/S Zakeet Crl App. No. 200123/2017 dated 16-09-2021 MANU/KA/4026/2021, 4) M. Suresh Gowda V/S Y. Rama Babu Crl. App. No. 100276/2015 dated 29-09- 2021 MANU/KA/4337/2021 The above rulings are not applicable to the present case on hand as the facts and circumstances are entirely different. The counsel for complainant quoted the citation which is reported in 1) 2001 AIR 300 CT Joseph-Vs- I.V. Philip.

29. From the above discussion it is clear that, the accused has raised untenable defense to avoid consequence of dishonour of cheque. Since the presumption under Section 139 of Act does not stand rebutted by any legal evidence. Then it would be presumed that Ex.P1 issued for legally recoverable debt or liability. But the accused failed to rebut the same. The said presumption under section 139 of N.I. Act has not been rebutted by the accused. For the above discussed reason I am of the view that towards the discharge of amount due by the accused had issued cheque bearing number 206709 dated: 15-01-2019, for a sum of Rs.3,03,250/-(Three lakh - 6 - NC: 2025:KHC-D:6178 CRL.RP No. 100412 of 2023 Three Thousand Two Fifty rupees only), drawn on the Corporation Bank, Dharwad Branch, Dharwad. The complainant presented the said cheque for encashment through his banker i.e., Karnataka Bank, Dharwad the cheque was dishonored with an endorsement "Payment Stopped by the drawer" as per Cheque Return Memo dated 17-01-2019., when it was presented for encashment and even after receipt of notice the accused has failed to pay the amount of cheque. On the other hand in the cross- examination of the complainant nothing was elicited from the mouth of the complainant. Complainant Case is proved as correct and the case of the complainant presumption contemplated under section 118 of N.I. Act. So on forgoing reasons and discussions on the Point No.1, I am of the opinion that, complainant has clearly, cogently proved his case by oral and documentary evidence. Therefore, the presumption is to be drawn in favour of the holder of the cheque who has received it for discharge of liability in view of the decision of the Hon'ble Supreme Court. Therefore, the accused has committed an offence punishable under Section 138 of Negotiable Instrument Act. Hence I answer Point No.1 and Point No.2 is in affirmative.” - 7 - NC: 2025:KHC-D:6178 CRL.RP No. 100412 of 2023

7. Being aggrieved by the same, accused filed an appeal before the District Court in Crl.A.No.22/2022. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and dismissed the appeal.

8. Being further aggrieved by same, accused is before this Court in this revision petition.

9. Sri Girish Hulmani, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that the very transaction alleged by the complainant with the accused has not been established by the complainant by placing cogent and convincing evidence on record which has been ignored by the learned Trial Judge before raising the presumption under Section 139 of the N.I. Act and Trial Judge failed to consider the probative value of the oral testimony of DW-1 to 3 and Exs.D-1 to D-15 resulting in miscarriage of justice and sought for allowing the revision petition. - 8 - NC: 2025:KHC-D:6178 CRL.RP No. 100412 of 2023

10. He would further contend that when the accused has issued the stop payment instructions to the complainant, the presumption under Section 139 of the N.I. Act ought not to have been raised by the learned Trial Judge resulting in miscarriage of justice and sought for allowing the revision petition.

11. In support of arguments Sri Girish Hulmani places on record the judgments of the Hon’ble Apex Court in the cases of Rangappa vs. Mohan1, Ramdas vs. Krishnanad2 and Basalingappa vs. Mudibasappa3.

12. Per contra, Sri Gurudev Gachchinamath, learned counsel for the respondent-complainant supports the impugned judgments.

13. Having heard the arguments of both the sides in detail, this Court perused the material on record meticulously. ORDER i. Revision petition is allowed in part. ii. While maintaining the order of conviction for the offence punishable under Section 138 of the Negotiable Instruments Act, fine amount of Rs.3,08,250/-, ordered by the learned Trial Magistrate confirmed by the First Appellate Court is reduced to sum of Rs.3,03,250/- . iii. Entire sum of Rs.3,03,250/- is ordered to be paid as compensation to the complainant under due identification. iv. Time is extended to pay the balance amount till

15.05.2025. - 18 - NC: 2025:KHC-D:6178 CRL.RP No. 100412 of 2023 v. Failure to pay the fine amount of Rs.3,03,250/- on or before 15.05.2025, simple imprisonment ordered by learned Trial Magistrate confirmed by the First Appellate Court stands restored automatically. vi. Fine amount of Rs.5,000/- imposed by the learned Trial Magistrate confirmed by the First Appellate Court towards defraying expenses of the State is hereby set aside. Office is directed to return the Trial Court Records with copy of this order forthwith. SD/- (V.SRISHANANDA) JUDGE NAA - Paragraph Nos.1 to 21, KAV – Paragraph Nos.22 to end Ct-cmu LIST NO.: 2 SL NO.: 61