Karnataka High Court
Arun S/O Veerappa Ankalakoti vs Vishwanath Alias Vishwanathayya on 31 July, 2024
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NC: 2024:KHC-D:10796
CRL.RP No. 100466 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.100466 OF 2022 (397)
BETWEEN:
ARUN S/O. VEERAPPA ANKALAKOTI,
AGE: 43 YEARS, OCC: GROCERY BUSINESS,
R/O: BASTI ONI, NEAR JAIN TEMPLE,
HAVERI TALUKA AND DISTRICT HAVERI-581110.
...PETITIONER
(BY SRI SRINIVAS B.NAIK, ADVOCATE)
AND:
VISHWANATH @ VISHWANATHAYYA
S/O. PUTTAYYA HIREMATH,
AGE: 68 YEARS, OCC: AGRICULTURE AND BUSINESS,
R/O. KALLUMANTAPA ONI, HAVERI, TALUKA AND
DISTRICT HAVERI-581110.
...RESPONDENT
(BY SRI VIDYASHANKAR G.DALAWAI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
Digitally signed
by YASHAVANT SECTION 397 R/W 401 OF CR.P.C., 1973, SEEKING TO SET ASIDE
NARAYANKAR THE JUDGMENT AND ORDER DATED 03.09.2022 PASSED IN
Location: HIGH
COURT OF CRIMINAL APPEAL NO.37/2022 ON THE FILE OF I ADDL. DISTRICT
KARNATAKA AND SESSION JUDGE, HAVERI AND SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE DATED 30.04.2022 PASSED
IN CC NO.7/2018 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND
JMFC, HAVERI FOR THE OFFENCE PUNISHABLE UNDER SECTION 138
OF NEGOTIABLE INSTRUMENTS ACT, AND THEREBY ACQUIT THE
PETITIONER/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL REVISION PETITION, COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:10796
CRL.RP No. 100466 of 2022
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
ORAL ORDER
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) In this revision petition filed under Section 397 of Criminal Procedure Code (for short, "Cr.P.C"), the petitioner who is accused before the Trial Court has challenged his conviction and sentence for the offence punishable under Section 138 of Negotiable Instruments Act, (for short, "N.I.Act"), by which the Trial Court has sentenced him to pay fine of Rs.76,250/- in default to undergo simple imprisonment for three months. The appeal filed by him against the said judgment and order is also dismissed by the Sessions Court.
2. For the sake of convenience, the parties are referred to by their ranks before the Trial Court.
3. In support of the petition, learned counsel for the accused urged that the findings of both Courts are contrary to the evidence placed on record and as such, perverse. The complainant has not discharged the initial -3- NC: 2024:KHC-D:10796 CRL.RP No. 100466 of 2022 burden with respect of the existence of the legally recoverable debt or liability. He has also failed to satisfy the statutory requirements of Section 138 of N.I.Act. The accused has rebutted the presumption by placing sufficient material on record and the same is not appreciated by the Trial Court. Viewed from any angle, the impugned judgment and orders are not sustainable and pray to allow the revision and set aside the same.
4. On the other hand, learned counsel for complainant supported the impugned judgment and orders passed by the Trial Court as well as the Sessions Court and sought for dismissal of the petition.
5. Heard arguments and perused the record.
6. Thus, it is the definite case of the complainant that he and accused are known to each other and with that acquaintance, on 10.01.2017, accused borrowed a sum of Rs.50,000/- from the complainant to meet his business and family necessities with a promise to repay the same within three months. He issued the subject cheque dated 19.04.2017. However, when presented for encashment, it -4- NC: 2024:KHC-D:10796 CRL.RP No. 100466 of 2022 was dishonoured for want of sufficient funds and after issuing legal notice, and complying with all the statutory requirements, complaint is filed.
7. At the trial, the accused admitted the fact that subject cheuqe is drawn on his account maintained with his banker and it bears his signature. However, he has taken up a specific defence that he had borrowed only a sum of Rs.5,000/- from the complainant and had issued the subject cheque blank and misusing the same, a complainant has filed the complaint to make unlawful gain.
8. Admittedly, the accused has not sent any reply to the legal notice, disclosing the facts as to how the cheque in question reached the hands of the complainant. Although it is not mandatory for the accused entering into the witness box to establish the circumstances under which the cheque came to be issued and he may take the benefit of evidence led by the complainant to prove his defence, in the present case, there is nothing on record to establish his defence. Therefore, he was expected enter into the witness box.
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NC: 2024:KHC-D:10796 CRL.RP No. 100466 of 2022
9. In the light of the presumption, under Section 139 of the N.I.Act, the initial burden is on the accused to discharge the presumption, although he is only required to discharge the said burden on preponderance of probabilities. As rightly held by the Trial Court, although the accused has alleged that he had issued the blank cheque while availing hand loan of Rs.5,000/-, admittedly, he has not taken any steps to instruct the bank to stop payment. As held by the Hon'ble Supreme Court in Bir Singh Vs. Mukesh Kumar1, even a blank cheque leaf voluntarily signed and handed over, which is towards some payment would attract presumption under Section 139 of N.I.Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of any debt.
10. Taking into consideration the oral and documentary evidence placed on record, the Trial Court has come to a correct conclusion that the allegations against the accused are proved beyond reasonable doubt. On re- appreciation of the same, the Sessions Court has rightly 1 (2019) 4 SCC 197 -6- NC: 2024:KHC-D:10796 CRL.RP No. 100466 of 2022 dismissed the appeal. This Court finds no justifiable grounds to interfere with the concurrent findings of the Trial Court as well as the Sessions Court.
11. In the result, the petition fails and accordingly following:
ORDER
i) The criminal revision petition filed under Section 397 read with Section 401 of Criminal Procedure Code, is dismissed.
ii) The impugned judgment and order dated 30.04.2022 in C.C.No.7/2018 on the file of Principal Civil Judge and JMFC, Haveri, and the judgment and order dated 03.09.2022 in Crl.A.No.37/2022 on the file of I Addl.
District and Sessions Judge, Haveri, are hereby confirmed.
iii) Registry is directed to send copy of this order to the trial Court and Sessions Court forthwith.
Sd/-
(J.M.KHAZI) JUDGE VMB, CT: UMD List No.: 1 Sl No.: 31