[Cites 5, Cited by 0]
Karnataka High Court
Nabisab S/O Babusab Shiranji vs Mahaboobali S/O Rajesab Attar on 4 February, 2026
Author: V.Srishananda
Bench: V.Srishananda
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CRL.RP No. 100123 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
DATED THIS THE 4TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO. 100123 OF 2020
(397(CR.PC)/438(BNSS))
BETWEEN:
NABISAB S/O BABUSAB SHIRANJI
AGE: 31 YEARS, OCC: COOLIE,
R/O: HULAGI MAIN ROAD,
HOSALINGAPUR, TQ AND DIST: KOPPAL,
PRESENTLY R/O: GANGIMADI,
GADAG-582101.
...PETITIONER
(BY SRI. SRINIVAS B. NAIK, ADVOCATE)
AND:
MAHABOOBALI S/O RAJESAB ATTAR
AGE: 50 YEARS, OCC: BUSINESS,
R/O. HALE KACHERI, GADAG-582101.
...RESPONDENT
(BY SRI. S.M. KALWAD, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION
Digitally signed by 397 AND 401 OF CR.P.C., PRAYING TO CALL FOR RECORDS IN CC
CHANDRASHEKAR
LAXMAN NO.137/2012 ON THE FILE OF 1ST JMFC, GADAG AND ALLOW THIS
KATTIMANI
CRIMINAL REVISION PETITION AND SET ASIDE THE JUDGMENT AND
Location: High
Court of Karnataka, ORDER DATED 14/02/2020 PASSED IN CRIMINAL APPEAL NO.14/2017
Dharwad Bench
ON THE FILE OF PRINCIPAL JUDGE FAMILY COURT AND ADDITIONAL
DISTRICT AND SESSIONS JUDGE, GADAG AND SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED
13/07/2017 PASSED IN CC NO.137/2012 ON THE FILE OF 1ST JMFC,
GADAG CONVICTING THE PETITIONER FOR THE OFFENCES
PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS
ACT, AND ACQUIT THE PETITIONER FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, IN THE
INTEREST OF JUSTICE.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 100123 of 2020
HC-KAR
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
1. Heard Sri Srinivas B. Naik, learned counsel for
the petitioner, and Sri S.M. Kalwad, learned counsel for the
respondent.
2. The accused is the revision petitioner who
suffered an order of conviction in C.C. No.137/2012 for the
offence punishable under Section 138 of the Negotiable
Instruments Act (for short, "the N.I. Act"), which was
confirmed in Crl.A. No.14/2007.
3. The facts, in a nutshell, necessary for the
disposal of this revision petition are as under:
A private complaint came to be filed under Section 200
of the Code of Criminal Procedure (for short, "the Cr.P.C.")
alleging commission of an offence punishable under Section
138 of the N.I. Act. It is contended that the accused, being
acquainted with the complainant, borrowed a sum of
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Rs.4,10,000/- on 16.07.2010 for the marriage of his
younger brother.
4. A loan document was executed in this regard
and, towards repayment of the said amount, the accused
issued Cheque No.198216 dated 11.11.2011, drawn on
Vysya Bank, Gadag Branch. The said cheque, on
presentation, came to be dishonoured with an endorsement
"Funds Insufficient". Hence, action was sought against the
accused.
5. Therefore, a statutory notice was issued. As
there was no compliance with the demands made in the
notice, the complainant filed the complaint seeking action
against the accused.
6. The said complaint was registered and, after due
trial, the learned Trial Magistrate convicted the accused for
the offence punishable under Section 138 of the N.I. Act
and imposed a fine of Rs.4,15,000/-, out of which a sum of
Rs.4,10,000/- was ordered to be paid as compensation to
the complainant and the balance sum of rs.5,000/- was
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ordered to be paid towards defraying the expenses of the
State.
7. Being aggrieved by the same, the accused
preferred an appeal before the District Court in Crl.A.
No.14/2017.
8. The learned Judge of the first appellate court,
after securing the records and hearing the arguments of
both parties in detail, and upon re-appreciation of the
material on record, dismissed the appeal.
9. Being further aggrieved by the same, the
accused has filed the present revision petition.
10. Sri Srinivas B. Naik, learned counsel for the
petitioner, would contend that the complainant has
specifically admitted in his cross-examination that he did
not have sufficient money to lend the loan amount, as could
be seen from his evidence.
11. He has further admitted that he had taken
money from Zakir Shirahatti and arranged a sum of
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Rs.60,000/- from his own sources and thereafter lent the
money to the accused.
12. Therefore, the very basis on which the complaint
has been filed is incorrect, and on that ground, he seeks
allowing of the revision petition.
13. He would further contend that the defence
evidence placed on record has not been properly
appreciated by both the courts below, which has resulted in
miscarriage of justice, and therefore seeks allowing of the
revision petition.
14. Per contra, Sri S.M. Kalwad, learned counsel for
the respondent, would submit that once the cheque is
issued and the signature found therein is that of the
accused, a presumption arises under Section 139 of the N.I.
Act.
15. Besides, marking the cheque, bank endorsement,
the loan agreement has been marked in evidence.
Therefore, the defence evidence is not sufficient to rebut
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the statutory presumption, and he seeks dismissal of the
revision petition.
16. Having heard the arguments of both sides, this
Court perused the material on record meticulously.
17. On such perusal of the material on record, it is
noted that Exhibit P1-cheque belongs to the accused and
signature found therein is that of the accused.
18. Apart from the same, complainant has placed on
record the loan agreement and marked the same as Ex.P7.
Signature found in Ex.P7 is also not in dispute.
19. Under such circumstances, learned trial Judge
was justified in raising the necessary presumption under
Section 139 of the Negotiable Instruments Act.
20. No doubt, it is a rebuttable presumption, but in
order to rebut the same, accused got examined himself as
DW1 and he also examined one Bheemsen Kumaste as
DW2. Their oral evidence coupled with the documents
marked at Exhibit D1 to D9 did not rebut the presumption
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inasmuch as they have questioned the capacity of the
complainant to lend the money.
21. Once the cheque is issued, under what
circumstances it came to be issued is to be established by
the accused. In that regard, in cross-examination of PW1,
he admitted that He admitted that he borrowed ₹10,000/-
from the complainant and the cheque is issued as a
security. Likewise in the cross-examination of DW2, he has
specifically admitted that he has not produced any
acknowledgments for having paid the money inasmuch as
the said acknowledgment or voucher would be with the
persons who deposit the money to the bank.
22. Thus, the defence taken by the accused that he
has repaid ₹10,000/- and therefore, cheque is misused did
not get probablised. If it is a case of misuse of the cheque
that has been issued for the purpose of security, it was for
the accused to take necessary criminal action against the
complainant. No such action has been taken by the
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accused. Therefore, the defence is nothing but illusory and
moonshine.
23. Accordingly, the conviction of the accused by the
trial Magistrate confirmed by the First Appellate Court needs
no interference.
24. Having said so, imposition of ₹5,000/- towards
the defraying the expenses of the State cannot be
countenanced in law as the lis is privy to the parties and no
State machinery is involved.
25. Accordingly, following:
ORDER
i. Criminal Revision Petition is allowed in part.
ii. While maintaining the conviction of the accused
for the offence punishable under Section 138 of
the N.I. Act, the fine amount of ₹4,15,000/- is
reduced to ₹4,10,000/-.
iii. The entire sum of ₹4,10,000/- is ordered to be
paid as compensation to the complainant.
iv. Imposing fine of ₹5,000/- towards defraying the
expense of the State is hereby set aside.
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v. Amount in deposit is ordered to be withdrawn by
the complainant under due identification.
vi. Balance amount to be paid on or before
24.02.2026.
vii. Office is directed to return the trial Court records
with copy of this judgment forthwith for issue of
modified conviction warrant.
Sd/-
(V.SRISHANANDA)
JUDGE
AC/CLK
CT:CMU
LIST NO.: 1 SL NO.: 41
