SHIVANAND S/O BHIMAPPA TAKKALAKI vs SOMAPPA S/O GOVINDAPPA SHIROL

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HC-KAR
NC: 2026:KHC-D:17686
CRL.RP No. 100260 of 2021


CNR: KAHC020236532021



IN THE HIGH COURT OF KARNATAKA AT DHARWAD


TH
DATED THIS THE 29 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE

CRIMINAL REVISION PETITION NO. 100260 OF 2021


(397 CR.PC /438 BNSS)

BETWEEN:

SHIVANAND S/O BHIMAPPA TAKKALAKI
AGE. 34 YEARS, OCC. BUSINESS,
R/O. NEAR MUTTINKANTI MATH,
JAMKHANDI, AT. JAMKHANDI,
TALUK. JAMKHANDI,
DIST. BAGALKOT-587301.
…PETITIONER
(BY SRI SHIVARAJ P. MUDHOL, ADVOCATE.)

AND:

SOMAPPA S/O GOVINDAPPA SHIROL
AGE. 30 YEARS, OCC. BUSINESS,
R/O. LINGANUR, TALUK. JAMKHANDI,
DIST. BAGALKOT-587301.
…RESPONDENT
(BY SRI VITTHAL S. TELI, ADVOCATE.)










ROHAN
HADIMANI
T

Digitally signed by ROHAN
HADIMANI T
Location: HIGH COURT OF
KARNATAKA, DHARWAD
BENCH
Date: 2026.11.03 14:37:28
+0530

THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CODE OF
CRIMINAL PROCEDURE, 1973, PRAYING TO SET-ASIDE THE
IMPUGNED JUDGMENT AND ORDER DATED 09.09.2021 PASSED
IN CRIMINAL APPEAL NO.120/2019 BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BAGALKOT, TO SIT AT
JAMKHANDI AND JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 22.11.2019 PASSED IN C.C.NO.1218/2017

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CRL.RP No. 100260 of 2021


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BY THE ADDITIONAL CIVIL JUDGE AND JMFC COURT,
JAMKHANDI, FOR THE OFFENCE PUNISHABLE UNDER SECTION
138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881, AND TO
ACQUIT THE PETITIONER BY ALLOWING THIS REVISION
PETITION IN THE INTEREST OF JUSTICE.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE

ORAL ORDER
The accused being aggrieved by the impugned
judgment dated 09.09.2021, passed in Criminal Appeal
No.120/2019, by the I Additional District and Sessions
Judge, Bagalkote, to sit at Jamkhandi (for short, the ‘First
Appellate Court’), dismissing the appeal and confirming
the judgment of conviction and order of sentence dated
22.11.2019, passed by the Additional Civil Judge and JMFC
Court, Jamkhandi, (for short ‘trial Court’), in
C.C.No.1218/2017, whereby the accused herein has been
convicted for the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881 (‘N.I.Act’ for short)
and sentenced to pay a fine of ₹1,10,000/-, in default, he

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shall undergo simple imprisonment for a period of 06
months, has preferred the present revision petition.
2. In response to the notice, the
complainant/respondent appeared through a counsel.
3. For the convenience reference, parties are
referred to as the ‘complainant’ and the ‘accused’.
4. Facts of the case in brief as contended by the
complainant that, the accused being a friend of him, in the
month of December 2016, requested him for hand loan of
₹90,000/- to meet his business expenses and also medical
expenses. At the request of the accused, the complainant
lent ₹90,000/- to the accused and the accused agreed to
return the said amount within 03 months. For the
repayment of the said amount, the accused issued the
impugned cheque dated 06.06.2017 for a sum of
₹90,000/-. When the cheque was presented for
encashment, it was dishonoured with an endorsement
‘insufficient funds’ as well ‘account blocked’. The

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complainant intimated the same to the accused. However,
the accused not repaid the said amount. The complainant
issued legal notice dated 14.06.2017 calling upon the
accused to pay the cheque amount. Legal notice was
served on the accused on 16.06.2017. Despite service of
legal notice, the accused neither replied to the legal notice
nor repaid the cheque amount. Hence, the complainant
constrained to file complaint before the trial Court.
5. The trial Court, after taking cognizance of the
offence, after recording the sworn statement of the
complainant, issued summons to the accused. Accused
appeared and he has not pleaded guilty on substance of
the accusation read over to him and he claimed trial. The
complainant in order to establish his case got examined
himself as PW1 and got marked the documents as Ex.P1 to
P7. After completion of the evidence of the complainant,
statement of the accused was recorded under Section 313
of Criminal Procedure Code, 1973. The accused denied all

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the incriminating circumstances appearing against him in
the evidence of the complainant. Further the accused got
examined himself as DW1 and got marked the document
as Ex.D1. The trial Court after appreciation of the
evidence, proceeded to pass the impugned judgment,
whereby the accused has been convicted for the offence
punishable under Section 138 of the N.I.Act and sentenced
to pay fine of Rs.1,10,000/- vide impugned judgment
dated 22.11.2019.
6. Being aggrieved by the impugned judgment,
the accused preferred the appeal before the First Appellate
Court in Criminal Appeal No.120/2019. The First Appellate
Court, after re-appreciation of the evidence, proceeded to
dismiss the appeal, confirming the impugned judgment
and sentence passed by the trial Court, vide judgment
dated 09.09.2021.
7. Being aggrieved by the impugned judgment,
the accused preferred the present revision petition.

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8. Heard the arguments of Sri Shivaraj P Mudhol,
learned counsel for the petitioner and Sri Vitthal S Teli,
learned counsel for the respondent.
9. Perused the records.
10. The point that arises for consideration in this
revision petition is as under:
Whether the impugned judgment passed
by both the Courts suffer from any illegality,
perversity and calls for interference by this
Court?

11. Learned counsel for the petitioner argued that,
both the Courts have not appreciated the defence of the
accused. It is the defence of the accused that, he lost the
cheque book containing the impugned cheque in the year
2012 and he has lodged a complaint before the police with
regard to lost of cheque. He has produced the
endorsement, which is marked as Ex.D1 which is not
appreciated by both the Courts. Learned counsel argued

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that, the First Appellate Court has observed that though
the accused had taken the defence that he lodged the
complaint, however the complaint copy is not produced
and on that ground the First Appellate Court has dismissed
the appeal of the accused.
12. Learned counsel for the petitioner submitted
that, the First Appellate Court observed that the copy of
the complaint is not filed by the accused. Now, the
accused has filed the copy of the complaint and that may
be received as an additional evidence to support his
defence. Further learned counsel for the petitioner also
argued that, despite the defence of the accused that the
complainant had no source of income to lend ₹90,000/- to
the accused, it was not appreciated by both the Courts.
13. Learned counsel has read over the cross
examination of PW1, wherein PW1 has admitted that in
the month of December 2016 he had no amount in his
bank account. Therefore, the learned counsel for the

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petitioner/accused argued that both the Courts without
proper appreciation of the evidence on record erroneously
convicted the accused. Hence, it is argued that there is a
manifest error occurred in the judgments of both the
Courts and therefore are liable to be set aside.
14. On the contrary, learned counsel for the
complainant/respondent submitted that the complainant
and the accused being known to each other, the accused
sought for financial help and the complainant lent
₹90,000/-. For repayment of the said amount, accused
issued the impugned cheque Ex.P1. It is argued that, the
Ex.P1 is dated 06.06.2017 and the complainant presented
the said cheque for encashment which was dishonoured on
08.06.2017 as per the bank memo Ex.P2. Thereafter the
complainant issued legal notice to the accused on
14.06.2017 as per Ex.P3 and the complainant also
produced the postal receipt as well the acknowledgment
marked as Ex.P4 and P5.

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15. Further, learned counsel argued that, when the
accused has received the said legal notice issued by the
complainant as per Ex.P3 and he has not replied to the
said legal notice, if really he lost the cheque in the bus
stand and he lodged the complaint, soon after the receipt
of the legal notice issued by the complainant, he could
have immediately replied to the said legal notice but he
has not replied to the legal notice nor he has also filed any
complaint to the bank or to the police station stating that,
the complainant herein who found the said cheque which
was lost by the accused in the year 2012, misused the
said cheque by presenting for encashment. Therefore
learned counsel for the complainant argued that, only for
the sake of defence, the accused took the defence that he
lost the cheque in the year 2012 which was misused by
the complainant.
16. Further learned counsel for the complainant
also argued that, on going through the impugned cheque

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marked as Ex.P1, the name of the complainant namely
Somappa Govindappa Shirol has been mentioned in the
cheque.
17. Learned counsel for the respondent further
argued that, in the judgment reported in the case of Ashok
AIR 2025
Singh vs. State of Uttar Pradesh , reported in
SC 1931
, and the judgment in the case of Kunte Gowda
vs. Thurubaiah , in SLP (Crl.) No.2247/2024, decided on
04.08.2026 , the Hon’ble Supreme Court held that,
Failure of the accused to respond to the
statutory notice issued under Section 138 of
the N.I.Act gives rise to an inference that the
complainant’s version carries merit. The initial
burden of raising defence that, the
complainant lacked the financial capacity to
advance the loan rests upon the accused and
ought to have been specifically pleaded in the
reply to the demand notice. In the absence of
such a plea, the complainant cannot be
expected to adduce evidence establishing his
financial capacity to pay the loan to the
accused while leading his evidence.

18. In the same judgment it is further held that,

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The revisional jurisdiction of the High
Courts and inherent limits while exercising
powers as a revisional authority U/s.397 of
Code of Criminal Procedure encapsulates the
power of High Courts and Sessions Courts to
examine the correctness, legality or propriety of
any order passed by an inferior Criminal Court.

19. Further, it is also observed that,
For exercise of revisional jurisdiction has
been well settled by the judicial dicta. The High
Court shall not interfere with the orders of the
lower Courts unless the order of finding of the
First Appellate Court is perverse, grossly
erroneous, glaringly unreasonable or wholly
unreliable or untenable in law. The revisional
powers can be exercised only when there is
arbitrary and capricious finding by both the
Courts.

20. In this case, the accused though received the
notice, he has not replied to the said notice. He has not
lodged any complaint against the complainant before the
police stating that, he has misused the said cheque. On
going through the reasons assigned by both the Courts,
both the Courts have rightly appreciated the evidence

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available on record and have come to the right conclusion
that, the complainant has established the guilt of the
accused.
21. For the aforesaid reasons, this Court is of the
opinion that this revision petition is devoid of merit and is
liable to be dismissed. Therefore, the point for
consideration is answered accordingly.
22. It is submitted that, in the present revision
petition the petitioner/accused has filed the application in
I.A.No.1/2026 seeking permission to produce additional
documents. The additional documents sought for
production are,
i) copy of the endorsement issued by
Town Police Station, Dharwad;
ii) copy of the complaint dated
10.05.2012 filed by the petitioner/accused
before the Town Police Station, Dharwad, with
regard to lost of cheque book pertaining to his
SB account;

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iii) copy of affidavit filed by him stating
that he lost the cheque book along with his bag
in Dharwad Old Bus Stand on 24.04.2012; and
(iv) certified copy of the judgment passed
in Crl.A.No.45/2016, dated 14.06.2019,
between the accused herein and Kallappa a
different person.

23. On a perusal of the documents, the
endorsement issued by the police was already produced by
the accused before the trial Court and marked as Ex.D1.
The copy of the complaint which was in the possession of
the accused, he could have produced before the trial Court
at the earliest point of time. However, he did not produce
the same.
24. Learned counsel for the revision
petitioner/accused argued that in Crl.A.No.45/2016, the
appeal filed by him was allowed and thereby, this accused
has been acquitted of the offence. Because the accused
has been acquitted in the said case i.e., Crl.A.No.45/2016,

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is not relevant to decide the present case. Hence, the
application I.A.No.1/2026 liable to be dismissed.
25. In the result, this Court proceeds to pass the
following:
ORDER
dismissed
The criminal revision petition is .
I.A.No.1/2026 filed for production of
dismissed
additional documents is .
The impugned judgment dated 09.09.2021,
passed in Criminal Appeal No.120/2019, by the
I Additional District and Sessions Judge,
Bagalkote, to sit at Jamkhandi and the judgment
of conviction and order of sentence dated
22.11.2019, passed by the Additional Civil Judge
and JMFC Court, Jamkhandi, in
C.C.No.1218/2017 for the offence Punishable
under Section 138 of the N.I.Act, are hereby
confirmed .
Office is directed to send back the original
records along with a copy of this judgment.
Sd/-
(RAJESHWARI N.HEGDE)
JUDGE

MRK
CT-CMU
LIST NO.: 1 SL NO.: 45