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CRL.RP.100216 of 2021

IN THE HIGH COURT OF KARNATAKA AT DHARWAD

DATED THIS THE 24

TH

DAY OF SEPTEMBER, 2026

BEFORE

THE HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE

CRIMINAL REVISION PETITION NO.100216 OF 2021

BETWEEN:

YANKOBAPPA NAYAK S/O. KOMAREPPA

AGE 68 YEARS, OCC. AGRICULTURE,

R/O. NEAR AMBAMMA TEMPLE, JEERAL,

TQ. KANAKAGIRI, DIST. KOPPAL - 583231.

…PETITIONER

(BY SRI. SHIVANAND MALASHETTI, ADVOCATE)

AND:

RAJARAO G. S/O. JOGARAO

AGE 43 YEARS, OCC. AGRICULTURE,

R/O. CHALLUR CAMP,

TQ. KARATAGI-583229

DIST. GANGAVATHI.

…RESPONDENT

(NOTICE SERVED UNREPRESENTED)

THIS CRIMINAL REVISION PETITION IS FILED U/S 397

R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER OF

THE SENTENCE AND CONVICTION PASSED BY THE I ADDL.

DISTRICT AND SESSION JUDGE KOPPAL (SITTING AT

GANGAVATHI) CONFIRMING THE ORDER PASSED BY THE ADDL .

CIVIL JUDGE AND JMFC GANGAVATHI IN

C.C NO. 255/2019 DATED 21/01/2020 AND ACQUIT HIM FO R

THE OFFENSES PUNISHABLE U/S 138 OF NI ACT, IN THE

INTEREST OF JUSTICE AND EQUITY.

THIS PETITION HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 28.08.2026 AND COMING ON FOR

PRONOUNCEMENT THIS DAY, ORDER WAS MADE THEREIN AS

UNDER:

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CORAM:

HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE

CAV ORDER

This petition is by the accused filed under Section 397

r/w 401 of the Criminal Procedure Code, 1973 (for short,

Cr.P.C) assailing the impugned judgment and order o f

conviction dated 21.01.2020, passed by the Addl.Civil Judge

and JMFC., at Gangavati in CC No.255/2019 (for short, Trial

court) and confirmed by the I Addl. District and Se ssions

Judge., Koppal (sitting at Gangavathi) (for short appellate

court) in Crl.Appeal.No.7/2020 dated: 04.09.2021 f or the

offences punishable under Section 138 of Negotiable

Instrument Act (hereinafter, referred to as ‘N.I.Act’).

2. For convenience, the parties are hereinafter

referred to as the ‘complainant’ and the ‘accused’.

3. Facts in brief is that,

The complainant filed the complaint before the Trial

Court under Section 200 of Cr.P.C, praying to take

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cognizance of the offence against the accused punis hable

under Section 138 of NI Act.

4. As per the complaint averments,

The complainant and the accused were well known to

each other, since many years. By this acquaintance, the

accused took financial help from the complainant on

20.01.2018 as a hand loan of Rs.1,00,000/- for his family

necessity. The accused promised to repay the said amount

within one month from that date and he has not repa id the

same within one month. On demand of the complainant , the

accused issued a cheque bearing No.080961 dated:

23.03.2018 drawn on State Bank of Hyderabad, Kanakag iri

Branch.

4.1 When the complainant presented the said cheque

for encashment, it was returned with an endorsement

‘funds insufficient’. Immediately, the complainant informed

the dishonor of the cheque and requested the accuse d to

repay the amount, as the accused not repaid the amo unt

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and the complainant got issued a legal notice to the accused

on 13.06.2018. The accused though received the not ice

neither replied to the notice nor repaid the amount. Hence,

the complainant constrained to file the complaint.

5. The trial court took cognizance of the offence and

registered criminal case and on issuance of summons to the

accused, he appeared through his counsel where a pl ea of

the accused recorded and he pleaded not guilty and claimed

trial.

6. The complainant in order to prove his case himself

examined as PW1 and got marked documents as Ex.P.1

to 9. After completion of evidence of the complaina nt

accused was examined U/s 313 Cr.P.C., wherein, he d enied

the incriminating evidence appearing against him. He chose

to lead a defence evidence and he himself examined as

DW1 and got marked 07 documents as Ex.D.1 to 7.

7. Learned Magistrate after appreciation of the

evidence on records proceeded to pass the impugned

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judgment dated: 21.01.2020 whereby the accused was

convicted for the offence punishable U/s 138 of N.I.Act and

sentenced to pay fine of Rs.1,20,000/- in default he shall

undergo SI for 6 months, out of fine amount of

Rs.1,20,000/- a sum of Rs.1,15,000/- ordered to be paid to

the complainant towards compensation and remaining

Rs.5,000/- ordered to be paid to the State towards fine.

8. Being aggrieved by the impugned judgment, the

accused preferred an appeal before the Appellate Co urt in

Crl. Appeal No.7/2020. The Appellate court after

completion of evidence on record proceeded to dismi ss the

appeal by confirming the conviction and sentenced p assed

by Trial Court vide impugned judgment dated: 04.09.2021.

9. Being aggrieved by the dismissal of the appeal

by the Appellate court and confirming the impugned

judgment of the trial court, the accused/petitioner has

preferred the present petition on the following;

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GROUNDS

a) Both the courts have committed an error convictin g

the accused though the complainant failed to prove that

there was transaction between the complainant and t he

accused.

b) The cheque was issued to one Yasubabu which was

misused by the complainant by filing a false compla int.

There was no legally enforceable debt so as to issue cheque

to the complainant by the accused.

c) The accused seriously disputed the financial capacity of

the complainant to pay the hand loan of Rs.1,00,000/-. The

burden of proving financial capacity of the accused heavily

on the complainant, the complainant himself admitte d that

he has not produced Income Tax returns pertaining t o him

which clearly goes to show that, the complainant ha d no

financial capacity for issue of hand loan to the accused.

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d) Both the courts without appreciation of the defen ce of

the accused only on the presumption available in favour of

the complainant proceeded to pass the conviction order.

e) Further in the course of cross-examination of P.W.1 the

complainant, he himself admitted that, he lent hand loan to

the accused at the rate of 2% interest which is illegal as the

complainant had no licence to lent the amount and h e was

not the money lender.

f) Further the trial court while awarding the compensation

to the complainant ought to have conducted an enquiry and

to see the capacity of the accused to pay the compensation

to the tune of double of the cheque amount. The trial judge

neither conducted an enquiry nor considered the fin ancial

capacity of the accused to pay the compensation.

g) Both the courts have not considered that there wa s no

transaction as per the Ex.P.1 i.e, the impugned cheque and

only based on the wrong inference and mis-interpreted the

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presumption available U/s 118 and 139 of NIAct,

erroneously convicted the accused.

10. Hence, the petitioner herein prayed for allowing

this revision petition by setting-aside the impugne d

judgments of both the courts and to acquit the accused.

11. After issuance of notice in this revision petition,

the respondent/complainant served with the notice, but the

respondent is unrepresented.

12. Trial court records secured.

13. Heard the learned counsel Sri.Shivanand

Malashetti, appearing for the petitioner/accused. T he

respondent/complainant remained unrepresented.

14. The learned counsel has relied upon the

judgment K. R. Raja Reddy @ Kallem Raja Reddy v.

State of Haryana and another reported in (2024) 8 SCC

588.

15. Perused the Trial Court Records.

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16. The following point do arise for consideration

Whether the impugned judgments passed by both the

Courts suffer from illegality, perversity and call for

interference by this Court?

17. Arguments of the Petitioner/Accused

Learned counsel for the petitioner/accused argued that

the defence of the accused is that he does not know the

complainant at all. According to the accused, he ha d

borrowed a sum of Rs.80,000/- from one Yasubabu and , at

the time of borrowing the said amount, he had issue d two

cheques to the said Yasubabu. The accused contends that

he subsequently repaid the said amount of Rs.80,000 /- to

Yasubabu and, when he requested him to return the

cheques, Yasubabu did not return them. It is furthe r

contended that the accused was never acquainted wit h the

complainant and that the cheque issued by him to Yasubabu

was misused by the complainant by filing the presen t

complaint.

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17.1. It is further argued that DW1/accused was

cross-examined by the complainant and, during such cross-

examination, it was suggested to him that he had received

a sum of Rs.1,00,000/- from the complainant, which

suggestion was denied by him. However, he admitted that

Ex.P.1-cheque belongs to his bank account and also

admitted his signature thereon, which was marked as

Ex.P.1(a). It was further suggested to him that the

complainant had issued a notice to him as per Ex.P. 3 and

that, though the said notice was served upon him, h e had

refused to receive it. The accused denied the said

suggestion and contended that he had neither received the

notice as per Ex.P.3 nor refused to receive the same. It is

also admitted by the accused that he had not lodged any

complaint against the said Yasubabu alleging misuse of the

cheque.

17.2. It is further argued that, though the accused

had taken the defence that he was not acquainted wi th the

complainant and had never issued any cheque in favo ur of

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the complainant, both the Courts, without properly

appreciating the defence of the accused, proceeded to

convict him merely on the basis of the statutory

presumption available in favour of the complainant. It is

therefore argued that the impugned judgments are

erroneous and contrary to law. Hence, learned couns el

submits that the present petition deserves to be allowed by

setting aside the impugned judgments passed by both the

Courts and by acquitting the accused of the alleged offence.

18. In the present case, though the

respondent/complainant was served with notice, he h as

neither appeared before this Court nor represented himself

through counsel and has not addressed any arguments .

19. On perusal of the records, it is evident that the

contention of the complainant is that the accused w as

known to him and had received a sum of Rs.1,00,000/ - as a

hand loan and, towards repayment of the said hand l oan,

had issued the impugned cheque. When the said chequ e

was presented for encashment, it came to be dishono ured.

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Thereafter, the complainant issued a legal notice t o the

accused as per Ex.P.3. The said notice was refused by the

accused, and the returned postal cover/acknowledgme nt is

marked as Ex.P.5.

20. On perusal of the records, it is evident that, in

order to substantiate his contention, the complaina nt

examined himself as PW1 and got marked the relevant

documents. Both the Courts, after appreciating the evidence

available on record, came to the conclusion that th e

complainant had proved that the accused had committ ed

the alleged offence and accordingly convicted and

sentenced him.

21. Now, it is the contention of the accused that,

though he had taken the defence that there was no

transaction between himself and the complainant and that

the complainant did not have the financial capacity to lend

the alleged amount, the said defence was not proper ly

appreciated by both the Courts.

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22. It is the contention of the accused that, during

the cross-examination of PW1, he admitted that he k new

the said Yasubabu, but stated that he did not know whether

there was any transaction between Yasubabu and the

accused. It is further contended that a suggestion was

made to PW1 that the complainant and the said Yasub abu,

in collusion with each other, had filed a false com plaint

against the accused, who was an uneducated person.

23. It is further contended by the accused that,

during his cross-examination, PW1 admitted that he had

lent a sum of Rs.1,00,000/- to the accused on inter est at

the rate of 2% per month and also admitted that the writing

on Ex.P.1-cheque had been made by his friend. Therefore, it

is argued that, though there was no transaction bet ween

the complainant and the accused, the complainant, i n

connivance with the said Yasubabu, had misused the

cheque and filed a false complaint against the accused.

24. On perusal of the evidence elicited from PW1, i t

is evident that he has admitted that he had lent the amount

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to the accused on interest. Further, PW1 has also admitted

that the writing on Ex.P.1-cheque was made by his friend.

25. It is the defence of the accused that he is an

illiterate person and that the complainant has filed a false

complaint against him by misusing the said cheque f or

wrongful gain.

26. Though the accused has taken the defence that

he had issued the cheque to one Yasubabu, he has no t

produced any oral or documentary evidence to substa ntiate

the said defence. Further, no material has been placed on

record to show that he had demanded the return of t he

cheque from Yasubabu or that he had lodged any comp laint

alleging misuse of the cheque.

27. On perusal of the impugned judgments passed

by both the Courts, it is evident that both the Courts have

properly appreciated the evidence available on record and

have rightly come to the conclusion that the compla inant

had established the commission of the alleged offen ce by

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the accused. I find no illegality, perversity, or material

irregularity in the appreciation of evidence or in the findings

recorded by the Courts below. Therefore, the impugn ed

judgments do not call for interference by this Court.

28. At this stage, learned counsel for the accused

submitted that, pursuant to the order passed by this Court,

the accused has deposited a sum of Rs.45,000/- befo re the

Trial Court. It is further submitted that the

accused/petitioner is presently not in a position to move

about due to his ill-health and that, if the

respondent/complainant were to appear before this C ourt,

the accused is ready to settle the matter. However, though

the respondent/complainant has been served with not ice,

he has remained unrepresented before this Court.

29. Learned counsel for the petitioner has relied

upon the judgment cited supra, in the case of

K.R.Rajareddy, wherein it is observed that,

“Even though the complainant is unwilling to

compound the case but, considering the

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totality of the facts and circumstances of the

present case which we have referred above,

we are of the considered view that these

proceedings must come to an end. We,

therefore, allow this appeal and set aside the

impugned order in order to do complete

justice.”

30. Learned counsel for the petitioner/accused,

relying upon the observations set out above, submit ted

that, in the present case also, though the accused is ready

and willing to compound the offence, due to the absence of

the complainant, he could not compound the case. It is

further submitted that, due to his present health condition,

the accused is not in a position to move about and,

therefore, his request may be considered. On these

grounds, learned counsel submitted that this Court may

allow the petition by setting aside the impugned judgments

and acquit the accused.

31. In the present case, the cheque in question,

marked as Ex.P.1, is for a sum of Rs.1,00,000/-. Th e

learned Magistrate has sentenced the accused to pay a fine

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of Rs.1,20,000/- and ordered that a sum of Rs.1,15, 000/-

out of the said fine amount be paid as compensation to the

complainant.

32. It is the argument of learned counsel for the

petitioner/accused that the accused has already deposited a

sum of Rs.45,000/- before the Trial Court pursuant to the

conditional order passed by this Court. It is furth er

submitted that, despite the efforts made by the accused to

secure the presence of the complainant for the purpose of

settling the matter, the complainant has not appear ed

before this Court.

33. Having regard to the defence taken by the

accused and the evidence elicited from PW1, particularly his

admission that the alleged amount was lent to the accused

on interest at the rate of 2% per month, i.e., 24% per

annum, as well as his admission that the writing on Ex.P.1-

cheque was made by his friend, the defence raised b y the

accused assumes significance. Though the statutory

presumptions under Sections 118 and 139 of the Nego tiable

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Instruments Act operate in favour of the holder of the

cheque, such presumptions are rebuttable. In the facts and

circumstances of the present case, the material elicited in

the cross-examination of PW1, coupled with the defence of

the accused, raises a serious doubt regarding the existence

of the alleged transaction between the complainant and the

accused. Therefore, the Courts below have not prope rly

appreciated the evidence available on record in its proper

perspective.

34. The accused has expressed his willingness to

compound the offence; however, due to the non-

appearance of the respondent/complainant, such settlement

could not take place. The accused has also deposited a sum

of Rs.45,000/- before the Trial Court pursuant to the order

passed by this Court. Considering the totality of t he

circumstances, the evidence available on record, th e

defence raised by the accused, and the admissions e licited

from PW1, this Court is of the opinion that the fin dings

recorded by the Courts below suffer from improper

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appreciation of the evidence and warrant interference in the

exercise of revisional jurisdiction. Accordingly, the above

point is answered in the affirmative and the following

order is passed:

ORDER

The revision petition is allowed.

The judgment of conviction and order of sentence

passed by the learned Addl.Civil Judge and JMFC at

Gangavathi in CC No.255/2019 dated: 21.10.2020 and

confirmed by the I Addl.Distirct and Sessions Judge, Koppal

in Criminal Appeal No.7/2020 dated: 04.09.2021 are hereby

set aside.

Consequently, the petitioner/accused is acquitted of

the offence punishable U/s 138 of NI Act. Amount o f

Rs.45,000/- deposited by the accused/petitioner before the

trial court ordered to be returned to the complainant.

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The trial court is directed to return the said amo unt to

the complainant / respondent on proper identification.

Return the Trial Court Records.

Sd/-

(RAJESHWARI N.HEGDE)

JUDGE

kkp

CT:CMU