Karnataka High Court
Sri. B. Mahesh vs Sri.K.K.Pradeep Kumar on 13 June, 2025
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CRL.RP No. 825 of 2018
HC-KAR
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:
Digitally signed by
SRI. K.K. PRADEEP KUMAR
LAKSHMINARAYAN N
Location: HIGH
S/O SRI. KRISHNEGOWDA
COURT OF
KARNATAKA 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,
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CRL.RP No. 825 of 2018
HC-KAR
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.
2. Parties to this revision petition are referred to
as per their rank before the Trial Court.
3. The brief facts leading to this revision petition
are that:
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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").
4. 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.
5. 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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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.
6. 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.
7. 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.
8. Being aggrieved by this judgment of conviction
and order on sentence passed by the Trial Court, which is
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confirmed by the Appellate Court, the revision petitioner
has preferred this revision petition.
9. 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.
10. As against this, Sri. B.R.Prasanna, learned counsel
for the respondent would submit that both the Courts have
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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.
11. 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?
12. My answer to the above points are as under:
Point No.1: Partly affirmative.
Point No.2: As per the final order.
13. I have carefully examined the materials placed
before the Court. The content of Ex.P1 - cheque, has not been
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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/-.
14. 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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ground, this Court cannot interfere with the impugned
judgments passed by the Courts below.
15. 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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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.
4. Send back the Trial Court Records along with
copy of this order for taking necessary legal
steps against the accused.
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5. 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
