T.N.BALAKRISHNA vs TUKARAM S/O. VISHNUPANT GAVADE

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD


TH
DATED THIS THE 28 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE

CRIMINAL REVISION PETITION NO. 100073 OF 2021

(397 CR.P.C./438 BNSS)


BETWEEN:

SHRI T.N. BALAKRISHNA
AGE: 52 YEARS, OCC. HOTEL BUSINESS,
R./O. PAVITRA, (NORTH INDIAN) HOTEL,
BESIDES SHESHADRI PETROL BUNK,
BALARAJ URS ROAD, SHIMOGA-577201.
…PETITIONER

(BY SRI SATISH S. RAICHUR, ADVOCATE.)


AND:

1. SHRI. TUKARAM S/O. VISHNUPANT GAVADE
AGE. 55 YEARS, OCC. BUSINESS,
R/O. GHANTIKERI ONI,
HUBBALLI-580020.

SINCE DIED R/BY HIS LRS

1A) SMT. SOUBHAGYA W/O TUKARAM GAVADE
AGE. 48 YEARS, OCC. HOUSEHOLD WORK,
R/O. GHANTIKERI ONI, HUBBALLI
TQ. HUBBALLI DIST. DHARWAD.

1B) POOJA D/O TUKARAM GAVADE
AGE: 30 YEARS, OCC. HOUSEHOLD WORK,
R/O. GHANTIKERI ONI, HUBBALLI
TQ. HUBBALLI DIST. DHARWAD.














Digitally signed
by BHARATHI H
M
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
BENCH
Date: 2026.10.28
16:55:50 +0530

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1C) VIDYA D/O. TUKARAM GAVADE
AGE. 28 YEARS, OCC. HOUSEHOLD WORK,
R/O. GHANTIKERI ONI, HUBBALLI
TQ. HUBBALLI DIST. DHARWAD.
…RESPONDENTS

(BY SRI A.B. PATIL, ADVOCATE.)

THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CRIMINAL
PROCEDURE CODE, 1973, SEEKING TO CALL FOR RECORD IN
CRIMINAL APPEAL NO.58/2019 FROM THE COURT OF V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD,
SITTING AT HUBBALLI AND TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE ORDER DATED 31/12/2020
RECORDED THERE IN CONFIRMING JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 03/06/2019,
PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, HUBBALLI,
IN C.C.NO.1462/2016 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881,
PERUSING RECORDS HEREIN ON ARGUMENT OF THE COUNSEL
FOR PETITIONER, IN THE INTEREST OF JUSTICE AND EQUITY.

THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 08.10.2026 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:

CORAM: HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE

CAV ORDER
The accused being aggrieved by the impugned
judgment dated 31.12.2020, passed in Criminal Appeal
No.58/2019 by the V Additional District and Sessions
Court, Dharwad, sitting at Hubballi (for short ‘First
Appellate Court’), confirming the judgment of conviction

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and order of sentence dated 03.06.2019, passed by the
Principal Civil Judge and JMFC, Hubballi (‘trial Court’ for
short), in C.C.No.1462/2016, convicting the accused for
the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 (‘N.I.Act’ for short), has
preferred this revision petition.
2. For convenience reference, the parties are
referred to as the ‘complainant’ and the ‘accused’.
3. Facts in brief as per the complaint averments is
that, one Satyanarayan Jadhav and the accused were
good friends. Said Satyanarayan Jadhav is brother-in-law
of the complainant. Through him, the accused came to
know the complainant and got acquaintance. The accused
was in dire need of money for his business purpose and on
his (accused) behalf, the said Satyanarayan Jadhav and
complainant’s wife Smt. Soubhagya requested the
complainant to lend a sum of ₹1,50,000/- to the accused.
By considering the recommendation of wife and brother-
in-law, the complainant lent ₹1,30,000/- to the accused on

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02.10.2013 by cash. The accused promised to repay the
said amount within 3-4 months.
4. On demand, the accused repaid only ₹10,000/-
by way of cash in the month of December 2013; in the
month of March 2014, when the complainant demanded
for repayment of balance amount of ₹1,20,000/-, the
accused issued cheque bearing No.759042 dated
29.03.2014 in a sum of ₹1,20,000/- drawn on Oriental
Bank of Commerce, Shivamogga. The complainant
presented the said cheque for encashment and it was
returned with an endorsement as ‘funds insufficient’ on
04.04.2014; further the complainant informed about the
dishonour of the cheque to the accused and as the
accused did not repay the said amount, then the
complainant got issued legal notice to him (accused) on
23.04.2014 through RPAD. The said legal notice was
returned unserved on 05.05.2014 with postal endorsement
as not claimed. Despite the knowledge of the said notice,
the accused did not repay the cheque amount nor he sent

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any reply to the said notice. Hence, the complainant
constrained to file the complaint.
5. After receipt of the complaint, learned
Magistrate took cognizance of the offence and issued
summons to the accused. The accused appeared and
pleaded not guilty. The complainant to prove his case got
examined himself as PW1 and got marked the documents
as Ex.P1 to P5. The accused was examined under section
313 of Criminal Procedure Code, 1973, where the accused
denied all incriminating evidence attributed against him.
He got examined himself as DW1; no documents got
marked.
6. The trial Court after hearing the arguments,
proceeded to pass the impugned judgment, whereby the
accused is found guilty of the offence punishable under
Section 138 of the N.I.Act and sentenced him to pay
₹1,30,000/-, out of which ₹1,20,000/- was awarded as
compensation to the complainant and remaining ₹10,000/-

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was ordered as fine to the State, vide judgment dated
03.06.2019.
7. Being aggrieved by the impugned judgment,
the accused preferred the appeal before the First Appellate
Court in Criminal Appeal No.58/2019. The First Appellate
Court after re-appreciation of the evidence on record,
passed the impugned judgment dismissing the appeal and
confirming the impugned judgment of the trial Court, vide
judgment dated 31.12.2020.
8. Being aggrieved by the impugned judgments of
both the Courts, the petitioner/accused preferred the
present revision petition.
9. In this revision petition, in response to the
notice, the complainant/respondent appeared through his
counsel and resisted the petition.
10. Trial Court records have been secured.

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11. Heard the arguments of Sri Satish S. Raichur,
learned counsel for the petitioner and the arguments of
Sri A.B.Patil, learned counsel for the respondent.
12. Perused the original records.
13. The point that arises for consideration of this
Court in this petition is as under:
Whether the impugned judgments of both
the Courts suffer from any illegality, perversity
and calls for interference by this Court?

14. Learned counsel for the petitioner argued that
both the Courts have failed to take into consideration the
oral and documentary evidence placed by the respective
parties and passed the impugned judgment.
15. It is further contended that, the Courts have
lost their sight of cross-examination of PW1, wherein the
complainant has admitted the fact that, he does not know
the accused. Both the Courts have failed to apply the
principles of preponderance of probabilities and held that

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the burden is on the accused to rebut the presumption,
which has resulted in miscarriage of justice.
16. Further learned counsel for the petitioner
argued that, both the Courts have wrongly held that since
the signature of the accused is admitted in the cheque,
writings on the cheque are filled by the accused, both the
Courts have come to the conclusion that, the complainant
has proved the guilt of the accused.
17. Learned counsel further argued that, there are
various infirmities in the evidence of the complainant
which are not properly appreciated by both the Courts.
Further it is contended that, both the Courts have not
considered the best available evidence i.e. of one
Satyanarayan Jadhav. The complainant has not examined
the said Satyanarayan Jadhav nor he has been impleaded
as party to the complaint.
18. Further learned counsel argued that, both the
Courts have misconceived the document Ex.P5 and formed

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wrong opinion that, the accused has borrowed money from
the complainant.
19. On these grounds the learned counsel for the
petitioner contended that, both the Courts have committed
an error and thereby interference is required. Hence
prayed for setting aside the impugned judgments of both
the Courts and to acquit the accused.
20. On the contrary, learned counsel for the
respondents argued that, both the Courts have rightly
appreciated the evidence on record and have come to right
conclusion, the complainant has proved that the accused
has committed an offence under Section 138 of the N.I.Act
and thereby learned counsel for the
respondent/complainant supported the impugned
judgments passed by both the Courts and prayed for
dismissal of the petition.
21. Learned counsel for the petitioner/accused has
relied upon the following judgments in support of his case.

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i) Judgment of Hon’ble Supreme Court in
the case of Basalingappa vs.
Mudibasappa, in Criminal Appeal No.636
of 2019, reported in AIR 2019 Supreme
Court 1983 .
ii) Judgment of this Court in the case of
Bopanna A.E. vs. C.M.Anand, in Criminal
Appeal No.685 of 2018, decided on
05.02.2024 .
iii) Judgment of Hon’ble Supreme Court in
the case of M/s Kumar Exports vs.
M/s.Sharma Carpets, in Criminal Appeal
No.2045/2008, decided on 16.12.2008.

22. On the contrary, learned counsel for
respondent/complainant has also relied upon the following
judgments in support of his case:
i) Judgment of this Court in the case of
Pushparaj R. Ullal vs. Herald D’Souza,
reported in 2026(3) KCCR 2774 .
ii) Judgment of this Court in the case of
M/s.Shruthi Enterprises, Bengaluru vs.
M/s.Akshara Drug House Private Limited,
Bengaluru, reported in 2026(3) KCCR
2941 .

23. According to the complainant, the accused who
is the friend of brother-in-law of the complainant,

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approached the complainant and sought financial help.
Accordingly, the complainant paid ₹1,30,000/- and
thereafter when he demanded, the accused paid only
₹10,000/- in cash and for remaining balance of
₹1,20,000/-, the accused is said to have issued the
impugned cheque which is marked as Ex.P1.
24. The defence of the accused is that, there is no
privity of contract between the complainant and the
accused, the accused has not borrowed any amount from
the complainant. However, the accused has admitted the
cheque Ex.P1 belonged to him and he has also admitted
the signature marked as Ex.P1(a) is that of him.
25. It is not in dispute that, the cheque which was
presented for encashment was returned as ‘funds
insufficient’ as per return memo Ex.P2. Further the
complainant contended that, he has issued legal notice to
the accused as per notice dated 23.04.2014 marked as
Ex.P3. The complainant contended that, he has issued the
said legal notice through RPAD. Postal receipts are marked

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as Ex.P3(a) and P3(b). He has issued the said legal notice
Ex.P3 to both the addresses of the accused. However, the
said legal notice is returned as intimation delivered. The
returned postal cover is marked as Ex.P3(c) and another
returned postal cover is marked as Ex.P3(d).
26. The complainant contended that, despite
issuance of notice and though intimation delivered to the
accused about the said notice, the accused did not receive
the said notice and not repaid the amount. Thereby the
complainant constrained to file the complaint.
27. The complainant contended that, the accused
by taking loan from him and also by issuing impugned
cheque Ex.P1, deliberately not kept the required amount
in his account and thereby the cheque was returned with
an endorsement as ‘insufficient funds’. Further, the
complainant contended that, the accused knowingly that
there was no balance in his account, issued the cheque to
the complainant and though he was aware that, the legal
notice was also issued, deliberately he has not received

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the said legal notice and also not replied to the legal
notice, therefore it is contended that the complainant has
established the guilt of the accused.
28. Learned counsel for the petitioner/accused
argued that, the defence of the accused is that he has not
borrowed any amount from the complainant. He was doing
hotel business and he has in all 03 hotels and there are 36
workers under him to maintain the said hotels. He has 40-
45 lakhs turnover every year through the said hotel
business.
29. It is the further contention of the accused that,
one Satyanarayan Jadhav was working under him
(accused) in his hotel and the said Satyanarayan Jadhav
was entrusted to supply meals to the schools and at that
time the accused gave some blank cheques to the said
Satyanarayan Jadhav for the said business purpose. The
said Satyanarayan Jadhav must have misused one of
those cheques by giving it to the complainant. Thereafter
the said Satyanarayan Jadhav without intimating to the

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accused left the job and after that he came to know that
the complainant has filed a complaint on the basis of the
said impugned cheque Ex.P1. Therefore, it is the
contention of the accused that, there was no privity of
contract between him and the complainant and he has not
at all borrowed any amount from the said complainant.
30. Learned counsel for the petitioner/accused
further argued that, despite the accused took the defence
that said Satyanarayan Jadhav was working under the
accused, he was entrusted with the financial matters
pertaining to the said hotel and also some blank cheques
were handed over by the accused to the said
Satyanarayan Jadhav, the said Jadhav without intimating
the accused left the job and therefore, he must have
misused the cheque, despite this specific defence the
complainant did not make any venture to implead the said
Satyanarayan Jadhav in the complaint nor the complainant
examined the said Satyanarayan Jadhav.

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31. It is not in dispute that, the said Satyanarayan
Jadhav is none other than the brother-in-law of the
complainant i.e., brother of the complainant’s wife.
Therefore, learned counsel for the petitioner argued that
the petitioner/accused has not at all borrowed any amount
from the complainant and thereby he need not repay the
said amount of ₹1,20,000/- to the complainant.
32. It is contended that, the present complaint filed
by the complainant is in collusion with the said
Satyanarayan Jadhav, which is a mischievous complaint.
33. The accused who is examined as DW1 has
reiterated his defence in his evidence. DW1 was subjected
to cross examination by the complainant.
34. In the cross examination, it is suggested that,
against him there are two other complaints filed in
Shivamogga Court by one Ansar Pasha, which is numbered
as C.C.No.5139/2013 and 4981/2013, which is denied by
DW1. Further it is also suggested that, another case filed
by K.V.Manjunath in C.C.No.47/2013 in Shivamogga

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Court, is admitted by the by the accused. Further it is
suggested that, one Keshava has also filed case in
C.C.No.258/2014 and another M.B.Rajappa also filed a
case against the accused in C.C.No.707/2014. Further,
State Bank of India, Shivamogga Branch has also filed a
case against this accused for recovery of money in
O.S.No.357/2016. The accused has denied filing of the
aforesaid cases against him.
35. Further DW1 has admitted that, he has not filed
any complaint against said Satyanarayan Jadhav who is
said to have misused the said cheque. Further he has
admitted that, he and the said Satyanarayan Jadhav were
in cordial terms even today. Further DW1 has admitted
that his wife’s name is Suvarna and said Suvarna filed a
complaint before the District Protection Officer, wherein
she has stated that the creditors said to have given loan to
the accused are coming and harassing her for repayment
of the loan amount said to have taken by the accused and
the copy of the said complaint is got marked by the
complainant as Ex.P4. The filing of the said complaint

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before the District Protection Officer as per Ex.P4 is
admitted by the accused. Further he has also admitted
that the statement of said Satyanarayan Jadhav, before
police is marked as Ex.P5.
36. It is the argument of the learned counsel for the
respondent/complainant that, said Satyanarayan Jadhav is
even now in cordial relationship with the accused and the
accused himself admitted that as per Ex.P4 his wife gave
complaint stating that, the creditors who lent money to
the accused are harassing them. Further the complainant
got marked the statement of said Satyanarayan Jadav as
per Ex.P5.
37. On going through the said statement marked as
Ex.P5, Satyanarayan Jadav has stated that, he told the
complainant to give ₹1,30,000/- to the accused.
Therefore, learned counsel for the respondent/complainant
argued that, both the Courts have rightly appreciated the
documents Ex.P4 and P5 and the overall evidence of the
complainant PW1 and the other evidence i.e., impugned

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cheque Ex.P1, cheque return memo Ex.P2 and the legal
notice Ex.P3, rightly come to the conclusion that the
accused borrowed the amount from the complainant and
to repay the said amount he has issued the impugned
cheque. However, he has not kept the balance in his
account deliberately and thereby the impugned cheque
came to be dishonoured.
38. Learned counsel for the petitioner/accused
argued that, as per Ex.P5, wherein there is a statement
with regard to the amount borrowed by the accused and
he has borrowed an amount of ₹1,30,000/- from one
Satyanarayan Jadhav, he repaid ₹68,000/- and he has to
pay remaining ₹62,000/- and it is mentioned that, one
blank cheque is with the said Satyanarayan Jadhav.
Therefore, it is the argument of the learned counsel for the
petitioner that, insofar he never borrowed any amount
from said the complainant and he only borrowed the
amount from said Satyanarayan Jadhav and he has repaid
the amount of ₹68,000/-, remaining he has to repay i.e.,
₹62,000/-. The learned counsel for the petitioner

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contended that both the Courts have not properly
appreciated the said document Ex.P5.
39. Learned counsel has relied upon the judgment
in the case of M/s.Kumar Exports (supra) . This is with
regard to presumption, wherein it is observed that:
“the use of the phrase ‘until the contrary is
proved’ in Section 118 of the N.I.Act and use of
the words ‘unless the contrary is proved’ in
Section 139 of the N.I.Act, read with definitions of
‘may presume’ and ‘shall presume’ as given in
Section 4 of the Indian Evidence Act makes it at
once clear that presumptions to be raised under
both the provisions are rebuttable”.
Further it is observed that:
“the accused in a trial under Section 138 of
the N.I.Act has two options; he can either show
that consideration and debt did not exist or that
under the particular circumstances of the case, the
non-existence of consideration and debt is so
probable that, a prudent man ought to suppose
that no consideration and debt existed. To rebut
the statutory presumptions, the accused is not
expected to prove his defence beyond reasonable
doubt, as is expected of the complainant in a
criminal trial.
Further it is observed that:
“bare denial of the passing of the
consideration and existence of debt apparently
would not serve the purpose of the accused.

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Something which is probable has to be brought on
record for getting the burden of proof shifted to
the complainant.”

40. On the basis of the observation made in the
aforesaid judgment, learned counsel for the petitioner
argued that, in this case the accused by examining himself
as DW1 and on the basis of the very document produced
by the complainant himself as Ex.P5, the accused has
rebutted the presumption available in favour of the
complainant as contemplated under Section 118 and 139
of the N.I.Act.
41. Learned counsel for the petitioner/accused
argued that, the complainant has not proved the guilt of
the accused beyond reasonable doubt and when the
accused produced the evidence for rebutting the
presumption, then the complainant must prove the guilt of
the accused beyond any reasonable doubt when the
accused has raised a probable defence. Therefore, learned
counsel for the accused argued that, both the Courts have
not properly appreciated the defence of the accused.

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42. Further, learned counsel argued that, in the
judgment passed by this Court in the case of Bhopanna
A.E. vs. C.M.Anand (supra) , on noticing that there are
irregularities in the evidence of the complainant, i.e., the
complainant himself admitted that, there is a difference in
the ink in the impugned cheque, disbelieved the evidence
of the complainant and dismissed the complaint and
acquitted the accused.
43. Further learned counsel for the
petitioner/accused has relied upon the case in
Basalingappa vs. Mudibasappa (supra) , that is also
with regard to rebutting the presumption under section
118 and 139 of the N.I.Act is a rebuttable presumption
and when the accused raised a probable defence and the
complainant has not produced the standard of proof, then
the accused is entitled to an acquittal.
44. Therefore, learned counsel for the
petitioner/accused argued that, the accused in this case
has rebutted the presumption by placing rebuttal

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evidence, despite of which both the Courts have
erroneously convicted the accused.
45. On the contrary, learned counsel for the
complainant/respondent has relied upon the judgment
passed by this Court in the case of Pushparaj R. Ullal
(supra) and another judgment in the case of
M/s.Shruthi Enterprises (supra) with regard to the
scope of revisional powers under the Cr.P.C. It is observed
that:
“The revision power under the Code of
Criminal Procedure cannot be exercised in a
routine and casual manner. While exercising such
powers, the High Court has no authority to
appreciate the evidence in the manner as the trial
and the appellate Courts are required to do.
Revisional powers could be exercised only when it
is shown that there is a legal bar against the
continuance of the criminal proceedings or the
framing of charge or the facts as stated in the first
information report even if they are taken at the
face value and accepted in their entirety do not
constitute the offence for which the accused has
been charged.”

46. It is the argument of the learned counsel for the
complainant/respondent that, though the accused has

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contended that he has not borrowed any amount from the
complainant and he has borrowed the amount from
Satyanarayan Jadhav and he has repaid ₹68,000/- to him
and he has to pay only ₹62,000/- to the said Jadhav,
however he has not filed any complaint against the said
Satyanarayan Jadhav about misuse of the cheque Ex.P1.
Further, in the cross examination DW1 himself admitted
that, now the said Satyanarayan Jadav and the accused
are in cordial terms. Therefore, it is argued that the
defence of the accused that he never known the
complainant is false. By borrowing amount from the
complainant in a sum of ₹1,30,000/- and he repaid
₹10,000/- and thereafter he issued cheque Ex.P1 for a
sum of ₹1,20,000/- only to avoid payment of the said sum
of ₹1,20,000/-, the accused took false defence. Therefore
learned counsel for the complainant/respondent argued
that, both the Courts have rightly appreciated the
evidence on record and convicted the accused.
47. On a perusal of the evidence on record and
further on going through the evidence of DW1, as rightly

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argued by the learned counsel for the complainant that
DW1 himself admitted that, now he and said Satyanarayan
Jadhav are in cordial terms and further he has not taken
any action against the said Jadhav for his illegal act i.e.,
misusing the cheque. Therefore, now the accused cannot
contend that, he has not at all borrowed any amount from
the complainant.
48. On going through the reasons assigned by both
the Courts, both the Courts have properly appreciated the
evidence on record and have come to the conclusion that
the complainant has proved the guilt of the accused
beyond any reasonable doubt. This Court has not found
any glaring or manifest error in the impugned judgments
of both the Courts so as to interfere with the said
judgments.
49. The petitioner/accused has failed to
substantiate the grounds alleged in this petition and
thereby interference of this Court in the impugned
judgments is unwarranted. The revision petition is devoid

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of merits and is liable to be dismissed. Hence, the point for
consideration is answered.
50. Accordingly, this Court proceeds to pass the
following:
ORDER
The revision petition is dismissed .
The impugned judgment dated
31.12.2020, passed in Criminal Appeal
No.58/2019 by the V Additional District and
Sessions Court, Dharwad, sitting at Hubballi,
confirming the judgment of conviction and order
of sentence dated 03.06.2019, passed by the
Principal Civil Judge and JMFC Court, Hubballi,
in C.C.No.1462/2016, is 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.