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HC-KAR NC: 2025:KHC:20298 CRL.RP No. 825 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO. 825 OF 2018 (397(Cr.PC) / 438(BNSS)) BETWEEN:
SRI. B. MAHESH S/O BASAVARAJ AGED ABOUT 30 YEARS DRIVER R/AT BIJUVALLI VILLAGE HALASE POST, MUDIGERE TALUK CHIKKAMAGALUR DIST. PIN-577 132 …PETITIONER (BY SRI. K.S. GANESHA, ADVOCATE) AND:
SRI. K.K. PRADEEP KUMAR S/O SRI. KRISHNEGOWDA AGED ABOUT 40 YEARS AGRICULTURIST & TAILOR R/O KELAGUR VILLAGE & POST CHIKKAMAGALUR TALUK & DISTRICT PIN-577 122 …RESPONDENT (BY SRI. B.R. PRASANNA, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 29.06.2018 PASSED BY THE II ADDITIONAL SESSIONS JUDGE,
Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA
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HC-KAR NC: 2025:KHC:20298 CRL.RP No. 825 of 2018
CHIKKAMAGALURU IN CRL.A.NO.115/2017 AND ALSO SET ASIDE THE JUDGMENT OF CONVICTION DATED 08.07.2017 PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., MUDIGERE IN C.C.NO.733/2014 AND DIRECT THAT THE PETITIONER BE ACQUITTED.
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE G BASAVARAJA
ORAL ORDER
The accused has preferred this revision petition against the judgment of conviction and order on sentence passed by the Principal Civil Judge and J.M.F.C., at Mudigere in C.C.No.733/2014 dated 08.07.2017, which is confirmed by the II Additional Sessions Judge at Chikkamagaluru in Crl.A.No.115/2017 dated 29.06.2018.
Parties to this revision petition are referred to as per their rank before the Trial Court.
The brief facts leading to this revision petition are that:
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HC-KAR NC: 2025:KHC:20298 CRL.RP No. 825 of 2018
The accused had issued a cheque bearing No.068403 dated 28.07.2014 for Rs.2,00,000/-, drawn on Syndicate Bank, Mudigere Branch in favour of the complainant for discharge of the loan amount of Rs.2,00,000/- received by him. The said cheque was presented to the Bank for encashment. The same was returned with the endorsement 'Funds Insufficient' on 20.08.2014. Thereafter, notice was issued to the accused for return of cheque amount. Same was served on the wife of the accused on 28.08.2014, despite, the accused failed to pay the cheque amount within statutory period.
Hence, the complainant has filed a complaint under Section 138 of the Negotiable Instruments Act (for short, "the NI Act").
After sworn statement, the case was registered in C.C.No.733/2014. The accused appeared before the Trial Court and enlarged on bail. Substance of accusation was recorded. Accused pleaded not guilty and claimed to be tried.
To prove the guilt of the accused, the prosecution had examined in all 2 witnesses as PW.1 and PW.2 and 5 documents were marked as Exs.P1 to P5. Accused had totally denied the evidence of PW.1 and PW.2
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HC-KAR NC: 2025:KHC:20298 CRL.RP No. 825 of 2018
and adduced defence evidence as DW.1 and marked Ex.D1 - Account extract of the complainant, and submitted his written statement under Section 313 of Cr.P.C.
Having heard the arguments on both sides, the Trial Court convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/- and ordered to pay an amount of Rs.2,25,000/- to the complainant as compensation.
Being aggrieved by the judgment of conviction and order on sentence passed by the Trial Court, the accused preferred the appeal before the II Additional Sessions Judge at Chikkamagaluru, in Crl.A.No.115/2017, which came to be dismissed on 29.06.2018.
Being aggrieved by this judgment of conviction and order on sentence passed by the Trial Court, which is
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HC-KAR NC: 2025:KHC:20298 CRL.RP No. 825 of 2018
confirmed by the Appellate Court, the revision petitioner has preferred this revision petition.
Learned counsel for the revision petitioner would submit that the respondent has not placed any material before the Trial Court that he had paid an amount of Rs.2,00,000/- to the petitioner and for the payment of the same, the petitioner had issued the cheque - Ex.P1. Further he would submit that in view of Section 269 SS of the Income Tax Act, 1961 all transaction involving Rs.20,000/- and above should be paid in cheque, and same is not complied with by the complainant. Both Courts have not considered the same and passed the impugned judgments, which are not sustainable in law. Further, he would submit that the accused has not committed any offence prior to this conviction. The Trial Court has passed the sentence to undergo simple imprisonment for a period of six months and considering the facts and consideration, the same may be modified only to the extent of payment of fine and compensation amount.
As against this, Sri. B.R.Prasanna, learned counsel for the respondent would submit that both the Courts have
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HC-KAR NC: 2025:KHC:20298 CRL.RP No. 825 of 2018
properly appreciated the evidence on record in accordance with law and facts, absolutely there are no grounds to interfere with the impugned judgments of both the Courts. To substantiate his argument, he relied on the decision of Hon'ble Apex Court in Kalamani Tex and Another v/s. P.Balasubramanian reported in (2021) 5 SCC 283 and the judgment of this Court in the case of Gajanan Kallappa Kadolkar vs. Appasaheb Siddamallappa Kaveri reported in 2022 Livelaw (Kar) 483.
Having heard the arguments on both sides, the following points would arise for my consideration: 1. Whether the revision petitioner has made out grounds to interfere with the impugned judgment of conviction and order on sentence passed by the Trial Court, which is confirmed by the Appellate Court? 2. What order?
My answer to the above points are as under:
Point No.1: Partly affirmative.
Point No.2: As per the final order.
I have carefully examined the materials placed before the Court. The content of Ex.P1 - cheque, has not been
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HC-KAR NC: 2025:KHC:20298 CRL.RP No. 825 of 2018
disputed by the accused. It is also not in dispute that the complainant presented the cheque for encashment and same was returned with shara 'Funds Insufficient' as per Ex.P2. The service of notice is also not disputed by the other side. It is settled principle of law that when the cheque is admitted by the accused, it is the duty of the accused to rebut the presumption under Section 139 of the NI Act. In the instant case, the accused has not adduced any evidence to rebut the presumption under Section 139 of the NI Act. Even after receipt of this legal notice, the accused has not given any reply. The accused has also not placed any material to show that the complainant was not having financial capacity to lend an amount of Rs.2,00,000/-.
With regard to the provision of Section 269 SS of the Income Tax Act, 1961, this Court in the case of Gajanan Kallappa Kadolkar (supra) has held that the contravention of Section 269 SS of the Income Tax Act, 1961, does not make alleged transaction void. The concerned authorities can take necessary action against the complainant for non-compliance of Section 269 SS of the Income Tax Act, 1961. Only on that
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HC-KAR NC: 2025:KHC:20298 CRL.RP No. 825 of 2018
ground, this Court cannot interfere with the impugned judgments passed by the Courts below.
On re-appreciation / revaluation and re- consideration of the entire evidence on record, I do not find any error / illegality in the impugned judgments passed by the Trial Court, which is confirmed by the Appellate Court. With regard to the sentence passed by the Trial Court is concerned, the Trial Court has passed the sentence to undergo simple imprisonment for a period of six months. The alleged commission of offence under Section 138 of the NI Act is punishable with imprisonment for two years or with fine or with both. It is submitted by the learned counsel for the revision petitioner that the accused is not convicted in any offence, except this offence under Section 138 of the NI Act. Considering the facts and circumstances of this case, age and occupation of the revision petitioner, I am of the considered opinion that it is just and proper to modify the sentence passed by the Trial Court, which is confirmed by the Appellate Court. Accordingly, I answer point No.1 partly in the affirmative.
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HC-KAR NC: 2025:KHC:20298 CRL.RP No. 825 of 2018
Regarding Point No.2 16. For the aforesaid reasons and discussions, I proceed to pass the following: ORDER 1. The revision petition is partly allowed. 2. The judgment of conviction passed in C.C.No.733/2014 by the Principal Civil Judge and J.M.F.C., at Mudigere dated 08.07.2017, which is confirmed by II Additional Sessions Judge at Chikkamagaluru, in Crl.A.No.115/2017 dated 29.06.2018, is confirmed. 3. The sentence passed by the Trial Court is modified as under:
The accused shall pay a fine of Rs.5,000/- to the Government for the offence punishable under Section 138 of the Negotiable Instruments Act. In default of payment of fine, the accused shall further undergo simple imprisonment for a period of one month and accused is liable to pay an amount of Rs.2,25,000/- to the complainant as compensation as held by the Trial Court, which is confirmed by the Appellate Court.
Send back the Trial Court Records along with copy of this order for taking necessary legal steps against the accused.
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HC-KAR NC: 2025:KHC:20298 CRL.RP No. 825 of 2018
The deposited amount of Rs.33,750/- deposited in Q Receipt No.481/2018 dated 30.08.2018 shall be refunded to the complainant in accordance with law, after deducting fine amount of Rs.5,000/-.
Sd/- (G BASAVARAJA) JUDGE
AM List No.: 1 Sl No.: 12