Karnataka High Court
Sri Raghavendra K A vs Prathap Simha on 14 July, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:25811
CRL.RP No. 41 of 2025
HC-KAR
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL REVISION PETITION No. 41 OF 2025
BETWEEN:
SRI RAGHAVENDRA K A
MANAGING DIRECTOR
M/s KRISHNA SHELTERS PVT LTD
AGED 62 YEARS
R/AT No. 59, SRI KRISHNA SUDHA
WEST AANJANEYA TEMPLE STREET
BASAVANAGUDI MAIN ROAD, GANDHI BAZAR
BENGALURU - 560 004.
RESIDENTIAL ADDRESS:
RAGHAVENDRA.K.A
S/O NARAYANA RAO
K.A No.760, 7TH BLOCK, 2ND PHASE
HOSKERE HALLI, BSK 2ND STAGE
BENGALURU - 560 085.
...PETITIONER
Digitally signed by (BY SRI VIVEK SUBBA REDDY, SR.ADVOCATE FOR
LAKSHMINARAYANA
MURTHY RAJASHRI SRI RANJAN KUMAR K, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
PRATHAP SIMHA
S/O K RAMACHANDRA
AGED 45 YEARS
SHO No. F10, 1ST FLOOR
GREEN CITY BUILDING
NEAR NAGANAKATTE THOKKOTTU
MANGALURU - 575 017.
...RESPONDENT
(BY SRI NAVEEN KUMAR M G, ADVOCATE)
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NC: 2025:KHC:25811
CRL.RP No. 41 of 2025
HC-KAR
THIS CRL.RP IS FILED UNDER SECTION 397(1) READ
WITH SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE
JUDGMENT OF CONFIRMATION OF THE CONVICTION PASSED
BY THE VI ADDL. DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU IN CRL.A.No.263/2023 DATED 22.10.2024
DISMISSING THE APPEAL FILED BY THE PETITIONER AND SET
ASIDE THE JUDGE OF COURT OF JMFC IV COURT AT
MANGALURU D.K., IN C.C.No.4165/2019 DATED 26.09.2023
CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NI ACT AND ETC.,
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
This criminal revision petition is directed against the judgment dated 22.10.2024 passed in Crl.A.No.263/2023 by VI Additional District and Sessions Judge, D.K. Mangaluru where under the judgment of conviction dated 29.06.2023 passed in C.C.No.4165/2019 by the JMFC, IV Court, Mangaluru convicting the petitioner under Section 138 of the N.I.Act and sentencing to pay fine of Rs.65,05,000/- in default, to undergo simple imprisonment for six months has been challenged.
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2. The said appeal has not been decided on merits and it has been dismissed on the ground that the petitioner failed to comply the condition to deposit 20% of cheque amount imposed in the order of suspension of sentence.
3. Heard learned Senior Counsel for the petitioner and learned counsel for respondent.
4. The case of respondent/complainant was that this petitioner had borrowed a sum of Rs.65,00,000/- from respondent/complainant to meet his urgent financial commitments. Towards repayment of the said amount, the petitioner/accused has issued cheque bearing No.427070 dated 22.11.2018 for Rs.65,00,000/- drawn on Corporation Bank, Basavanagudi Branch, Bengaluru in favour of the complainant. The complainant presented the said cheque for encashment and it came to be dishonoured for the reason "Funds Insufficient." The complainant got issued legal notice dated 29.12.2018 to the petitioner/accused demanding payment of cheque -4- NC: 2025:KHC:25811 CRL.RP No. 41 of 2025 HC-KAR amount. The said notice has been served on the petitioner/accused on 02.01.2019. Inspite of service of the said notice, the petitioner has not paid the cheque amount and therefore, the respondent/complainant initiated proceedings against the petitioner for the offence under Section 138 of the N.I.Act. After trial the petitioner came to be convicted by the trial Court by judgment dated 26.09.2023 passed in C.C.No.4165/2019 by the JMFC IV Court, Mangaluru. The said judgment of conviction has been challenged by the petitioner/accused before the Sessions Court in Crl.A.No.No.263/2023. The respondent/complainant has also filed Crl.R.P.No.252/2023 seeking enhancement of fine/compensation amount. The appellate Court has passed common judgment in criminal appeal and criminal revision petition under which the criminal appeal filed by the petitioner came to be dismissed on the ground that the petitioner has not complied the order of appellate Court dated 31.10.2023 depositing 20% of the fine amount. By -5- NC: 2025:KHC:25811 CRL.RP No. 41 of 2025 HC-KAR the said common judgment the revision petition filed by the respondent has been allowed and fine/compensation has been enhanced. The petitioner herein who was accused before the trial Court has challenged the said judgment where under his appeal came to be dismissed.
5. Learned Senior Counsel would contend that the condition imposed by the appellate Court for deposit of 20% of the fine amount has been complied, but the said compliance is beyond the time granted by the appellate Court. The said compliance has not been brought to the notice of the appellate Court. The appellate Court presumed and assumed that the petitioner who is appellant therein has not complied the said condition dated 31.10.2023 and only on that ground dismissed the appeal. The appellate Court has not decided the appeal of the petitioner on merits. The appellate Court has placed reliance on the decision of the Hon'ble Apex Court in Surinder Singh Deswal @ Colonel S.S.Deswal and others vs.Virendra Gandhi and another (2020 SCC -6- NC: 2025:KHC:25811 CRL.RP No. 41 of 2025 HC-KAR Online SC 18). The said decision of the Hon'ble Apex Court does not provide for dismissal of the appeal for non- compliance of condition imposed for suspension of sentence and at the most, the order of suspension of sentence can be set-aside or cancelled for non-compliance of the condition in not depositing 20% of the fine amount. He submits that the decision of the Hon'ble Apex Court has been misread and misapplied by the appellate Court. The valuable right of the appellant cannot be deprived. With this he prayed for remanding the matter to the appellate Court for deciding the appeal on merits.
6. Learned counsel for respondent placing reliance on para-20 of Surinder Singh Deswal (Supra) has contended that the appellate Court which has granted suspension of sentence has to take a call on non- compliance and take appropriate decision. He submits what order is to be passed by the appellate Court in such circumstances is for the appellate Court to consider and decide. He submits that the appellate Court has rightly -7- NC: 2025:KHC:25811 CRL.RP No. 41 of 2025 HC-KAR dismissed the appeal of the petitioner for non-compliance of condition imposed while passing the order of suspension of sentence. He submits that deposit of 20% of the fine amount by the petitioner has not been brought to the notice of the appellate Court and also to the respondent/complainant. The appellant who had filed written arguments has also not stated regarding compliance of the order of the appellate Court. The very object of Section 138 of the N.I.Act is to see that that complainant has to get back his money involved in the cheque at the earliest. With this he prayed for dismissal of the revision petition.
7. Having heard learned counsels this Court has perused the impugned judgment and other materials placed on record.
8. The petitioner who had challenged the judgment of conviction had filed an application for suspension of sentence under Section 389 of Cr.P.C. The said application has been allowed by the appellate Court by -8- NC: 2025:KHC:25811 CRL.RP No. 41 of 2025 HC-KAR order dated 31.10.2023 and sentence has been suspended with a condition to the petitioner/accused to deposit 20% of the cheque amount before the trial Court and also to execute bond and surety. The petitioner/accused has filed application seeking extension of time to comply the condition imposed in the said order. On 27.11.2023 it came to be allowed and time has been extended for a period of 15 days i.e. till 11.12.2023. The petitioner/accused had not complied the condition imposed in the order dated 31.10.2023 till 11.12.2023. The appellate Court heard arguments on appeal as well as revision filed by the respondent/complainant and passed common judgment. In the common judgment one of the point raised for consideration is as under:
"Whether the appellant/accused is entitled to maintain the appeal despite his willful failure to comply the order of the court dated 31.10.2023?"-9-
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9. The appellate Court while answering the said point has noted the fact of petitioner not complying the condition imposed in the order dated 31.10.2023 even though time is extended till 11.12.2023 and placing reliance on the decision of the Hon'ble Apex Court in Surinder Singh Deswal (Supra) has held that there is no necessity to discuss the merits of the case as the appeal itself is not maintainable and answered point No.1 in negative. Consequently, the appeal of the petitioner has been dismissed. The said dismissal of the appeal of the petitioner is not on merits but for non-compliance of the condition imposed in the order dated 31.10.2023. Whether the appeal filed challenging the judgment of conviction for the offence punishable under Section 138 of the N.I.Act can be dismissed holding that it is not maintainable for non-compliance of the condition imposed while suspending the sentence to deposit 20% of the fine/cheque amount.
10. Section 148 of the N.I.Act reads thus:
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148. Power of Appellate Court to order payment pending appeal against conviction.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent.
of the fine or compensation awarded by the trial Court:
Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under section 143A.
(2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant.
(3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal:
Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.
11. The said Section 148 of the N.I.Act has been inserted by way of amendment by Act 20 of 2018 w.e.f. 1.9.2018. As per Section 148(1), an appeal by the drawer against the conviction for the offence under Section 138 of the N.I.Act, the appellate Court may order the appellant to
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NC: 2025:KHC:25811 CRL.RP No. 41 of 2025 HC-KAR deposit such sum which shall be minimum of twenty per cent of the fine or compensation awarded by the trial Court. As per Section 148(2), the amount referred to in sub-section (1) has to be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant.
12. In the case on hand the said condition to deposit 20% of cheque/fine amount has been imposed as a condition for suspension of sentence. In Surinder Singh Deswal (Supra) the apex Court has observed as under:
19. The High Court is right in its opinion that question No.2 as framed in Vivek Sahni's case was not correctly considered. When suspension of sentence by the trial court is granted on a condition, non- compliance of the condition has adverse effect on the continuance of suspension of sentence. The Court which has suspended the sentence on a condition, after noticing non-
compliance of the condition can very well hold that the suspension of sentence stands vacated due to non-compliance. The order of the Additional
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NC: 2025:KHC:25811 CRL.RP No. 41 of 2025 HC-KAR Sessions Judge declaring that due to non- compliance of condition of deposit of 25% of the amount of compensation, suspension of sentence stands vacated is well within the jurisdiction of the Sessions Court and no error has been committed by the Additional Sessions Judge in passing the order dated 20.07.2019.
20. It is for the Appellate Court who has granted suspension of sentence to take call on non- compliance and take appropriate decision. What order is to be passed by the Appellate Court in such circumstances is for the Appellate Court to consider and decide. However, non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated.
13. As per the aforesaid judgment, the condition to deposit 25% of the amount of fine/compensation is not complied, then the Court can pass order vacating the order of suspension of sentence. Merely because of non- compliance of condition imposed while suspending the order of sentence by non-deposit of fine amount, the
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NC: 2025:KHC:25811 CRL.RP No. 41 of 2025 HC-KAR appeal filed by the drawer challenging the judgment of conviction cannot be dismissed only on that ground.
14. The Hon'ble Apex Court in Vijay D.Salvi vs. State of Maharashtra and others (2007) 5 SCC 741 has held as under:
3. It appears that two complaint cases were filed against the appellant. In both the cases, he was convicted under Section 138 of the Negotiable Instruments Act, 1881, and sentenced to undergo one month's simple imprisonment in each of the cases. In one case, the appellant was directed to pay fine of Rs 1,40,000 and in another Rs 1,45,000; in default, he was directed to undergo further imprisonment for a period of three months. Against the said orders, appeals were preferred before the Sessions Court which directed the appellant to deposit the amount of fine but as he failed to deposit the same, the appeals were dismissed. When the said order was challenged before the High Court in revision, similar order was passed on non-deposit of payment of fine and the revision applications have been dismissed. Hence, this appeal by special leave.
4. In our view, neither the appellate court nor was the Revisional Court right in dismissing the appeals or revisions in the event of non-deposit of fine, but they should have disposed of the case on merits.
5. Accordingly, the criminal appeal is allowed, impugned orders are set aside and the matter is remitted to the appellate court to dispose of the appeals on merits in accordance with law after giving opportunity of hearing to the parties. It is directed that the trial court shall take all coercive steps for realisation of fine awarded by the trial court against the appellant.
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15. The Hon'ble Apex Court in Jamboo Bhandari vs. Madhya Pradesh State Industrial Development Corporation Limited and others ((2023) 10 SCC 446) has held as under:
6. What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded.
7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded.
8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits
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NC: 2025:KHC:25811 CRL.RP No. 41 of 2025 HC-KAR that if such a prayer was not made by the appellants, there were no reasons for the Courts to consider the said plea.
9. We disagree with the above submission. When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not.
16. The Bombay High Court in the case of Adesh Prakashchand Jain (Borudiya) vs. Harish Punamchand Une and another (2020) SCC ONLINE BOM 96 relying on the decision of Vijay D.Salvi (supra) has set-aside the order of dismissal of appeal for default for non-payment of fine and ordered for restoration of the appeal to be decided on merits and as per law.
17. The High Court of Gujarat at Ahmedabad in the case of Rameshbhai Bhemabhai Prajapati vs. State of Gujarat and another (2025:GUJHC:15249) has set- aside the order of the Sessions Court dismissing the appeal of the drawer for default for non-deposit of 20% of
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NC: 2025:KHC:25811 CRL.RP No. 41 of 2025 HC-KAR the cheque amount and ordered for restoration of the appeal to be decided on merits.
18. The Hon'ble Apex Court in the case of Nagarajan vs. State of Tamil Nadu (2025 INSC 802) has held as under:
10. That a right of appeal is an invaluable right, particularly for an accused who cannot be condemned eternally by a trial judge, without having a right to seek a re-look of the Trial Court's judgment by a superior or appellate court. The right to prefer an appeal is not only a statutory right but also a constitutional right in the case of an accused. This is because an accused has a right to not only challenge a judgment on its merits, namely, with respect to the conviction and sentence being imposed on him, but also on the procedural aspects of the trial. An accused can question procedural flaws, impropriety and lapses that may have been committed by the Trial Court in arriving at the judgment of conviction and imposition of sentence in an appeal filed against the same. It then becomes the duty of the appellate court to consider the appeal from the perspective of the accused-appellant therein to see if he has a good case on merits, and to set aside the judgment of the Trial Court and acquit the accused, or to remand the matter for a re-trial in accordance with law, or to reduce the sentence while maintaining the conviction or, in the alternative, to dismiss the appeal.
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19. In the case on hand, the petitioner has deposited fine amount of Rs.13,00,000/- through five demand drafts in the trial Court on 27.12.2023. There is an endorsement to that effect in the order sheet of C.C.No.4165/2019 dated 27.12.2023. The petitioner had also furnished surety in compliance of the order passed on I.A.1 in Crl.A.No.263/2023 by the VI Additional District and Sessions Judge, D.K. Mangaluru. Even though the said compliance is not within the time granted by the appellate Court, learned counsel for the petitioner submits that the said compliance is made within 60 days from the date of order as provided under Section 148(2) of the N.I.Act. The petitioner has not brought to the notice of the appellate Court regarding compliance of the order dated 31.10.2023 passed on I.A.1. Considering the said aspect, the revision petition deserves to be allowed and the matter requires to be remanded back to the appellate Court for deciding the appeal on merits. Accordingly, the following:
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NC: 2025:KHC:25811 CRL.RP No. 41 of 2025 HC-KAR ORDER
i) The criminal revision petition is allowed.
ii) The judgment dated 22.10.2024 passed in Crl.A.No.263/2023 by the VI Additional District and Sessions Judge, D.K. Mangaluru is set-
aside.
iii) The matter is remanded to the appellate Court to decide Crl.A.No.263/2023 on merits and in accordance with law.
Sd/-
(SHIVASHANKAR AMARANNAVAR) JUDGE DKB List No.: 1 Sl No.: 25 Ct.sm