Anand Appa Mali vs Anil S/O Paragouda Patil
2021 Latest Caselaw 1703 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

            DATED THIS THE 4TH DAY OF MARCH, 2021

                           BEFORE

              THE HON'BLE MRS.JUSTICE M.G.UMA

        CRIMINAL REVISION PETITION No.100179/2019

BETWEEN :

ANAND S/O. APPA MALI,
AGE-42 YEARS, OCC-BUSINESS,
R/O. KANAGALA, TAL-HUKKERI,
DISTRICT BELAGAVI PIN-591 225.
                                             ........ PETITIONER
(BY SRI PRASHANT MATHAPATI, ADVOCATE)

AND :

ANIL S/O. PARAGOUDA PATIL,
AGE-43 YEARS, OCC-SERVICE,
R/O.C/O.PATSON CHITS PVT. LTD.,
GANDHI BHAVAN, COLLEGE ROAD,
BELAGAVI PIN-590 001.
                                            ...... RESPONDENT
(BY SRI S.M.KALWAD, ADVOCATE)


      THIS REVISION PETITION IS FILED UNDER SECTION 397 READ
WITH SECTION 401 OF CR.P.C. AND PRAYED TO SET ASIDE THE
ORDER OF CONVICTION DATED 03.06.2019 PASSED IN CRIMINAL
APPEAL NO.45/2019 ON THE FILE OF X ADDITIONAL SESSIONS
JUDGE, BELAGAVI CONFIRMING THE ORDER OF CONVICTION DATED
30.01.2019 PASSED IN C.C.NO.424/2018 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS
ACT ON THE FILE OF JUDICIAL MAGISTRATE FIRST CLASS-V AT
                                    2




BELAGAVI BY ALLOWING THE CRIMINAL REVISION PETITION TO
MEET THE ENDS OF JUSTICE.

     THIS REVISION PETITION IS COMING ON FOR ADMISSION,
THIS DAY, COURT MADE THE FOLLOWING :

                                ORDER

Even though the matter is listed for admission, the same is

taken up for final hearing with consent of both the parties.

2. The revision petitioner/accused is before this Court

assailing the impugned judgment of conviction and order of

sentence dated 30.01.2019 passed in Criminal Case No.424/2018

on the file of J.M.F.C.-V, Belagavi (hereinafter referred to as 'the

trial Court') convicting him for the offence punishable under

Section 138 of Negotiable Instruments Act, 1881 (for short 'the

N.I.Act') and sentencing him to pay fine of Rs.2,50,000/- and in

default of payment of fine, to undergo simple imprisonment for a

period of six months, which was confirmed in Criminal Appeal

No.45/2019 by the X Additional Sessions Judge, Belagavi

(hereinafter referred to as 'the appellate Court') vide its judgment

dated 03.06.2019.

3. Brief facts of the case before the trial Court is that the

respondent herein filed the Private Complaint No.419/2018 against

the accused alleging commission of the offence punishable under

Section 138 of the N.I.Act. It is stated that the complainant had

lent hand loan of Rs.2,00,000/- to the accused and in discharge of

the same the accused had issued the cheque bearing No.036576

dated 10.11.2017 for a sum of Rs.2,00,000/-. The said cheque was

presented for encashment, but the same was dishonoured as there

was "insufficient funds" in the account of accused. The complainant

got issued the legal notice calling upon the accused to repay the

cheque amount. The said notice was also served on the accused,

but he had not replied nor he has repaid the cheque amount and

thereby he has committed the offence punishable under Section

138 of the N.I.Act.

4. The trial Court took cognizance of the offence and

summoned the accused. Accused pleaded not guilty and claimed to

be tried. Thereafter, the complainant got examined himself as

P.W.1 and got marked Exs.P.1 to 6 in support of his contention.

The accused denied all the incriminating materials available on

record in his submission while recording of the statement under

Section 313 of Cr.P.C. However, he has not stepped into the

witness box to speak about his defence. Exs.D.1 and 2 were came

to be marked during the course of cross-examination of P.W.1. The

trial Court taking into consideration the materials on record, came

to the conclusion that the complainant is successful in proving the

guilt of the accused beyond reasonable doubt and convicted the

accused vide impugned Judgment of conviction and order of

sentence dated 30.01.2019.

5. Assailing the said Judgment of conviction and order of

sentence passed by the trial Court, the accused preferred the

Criminal Appeal No.45/2019 before the appellate Court. The

appellate Court dismissed the criminal appeal vide its Judgment

dated 03.06.2019 and confirmed the impugned Judgment of

conviction and order of sentence passed by the trial Court.

6. Being aggrieved by the impugned Judgment of conviction

and order of sentence passed by the trial Court, which is confirmed

by the appellate Court, the accused is before this Court.

7. Heard Sri Prashant Mathapati learned counsel for the

revision petitioner as well as Sri S.M.Kalwad learned counsel for

the respondent.

8. During the course of addressing the argument, learned

counsel for the revision petitioner drawn my attention to the

impugned Judgment dated 03.06.2019 passed in Criminal Appeal

No.45/2019 by the appellate Court. In page No.2 at paragraph

No.2, the factual matrix leading to filing of the appeal is dealt in

detail by the appellate Court. But on perusal of the same, the facts

of the present case are never considered by the learned Sessions

Judge. The appellate Court proceeded on the assumption that

accused No.1 is the partnership firm, accused Nos.2 and 3 are the

partners. The entire facts narrated therein are not at all concerned

to the present case. Therefore, it is the contention of the learned

counsel for the revision petitioner that the appellate Court has

never applied its mind to the facts and circumstances of the case

and proceeded to dismiss the criminal appeal without application of

mind.

9. I have given my anxious consideration to this portion of

the Judgment of the appellate Court. The facts narrated by the

appellate Court is not at all concerned to the present case. Under

such circumstances, it cannot be said that the appellate Court has

applied its mind to the facts and circumstances of the case while

reaching the conclusion and dismissing the appeal on merits.

Therefore, I deem it necessary to remand the matter for fresh

disposal by the appellate Court, without expressing any opinion on

merits. Hence, I proceed to pass the following :

ORDER

The Criminal Revision Petition is allowed.

The impugned Judgment dated 03.06.2019 passed by the X

Additional Sessions Judge, Belagavi in Criminal Appeal No.45/2019

is set aside.

Matter is remanded to the appellate Court for fresh

consideration in the light of observations made above and to

dispose of the criminal appeal expeditiously, in any event within 3

months from the date of receipt of records.

In view of disposal of the revision petition, pending I.A.No.1

of 2021 does not survive for consideration; accordingly, same is

disposed off.

Since both the parties are represented by their advocates,

they are directed to appear before the appellate Court on

22.03.2021 and assist the appellate Court in early disposal of the

appeal.

Registry is directed to send back the records to the appellate

Court with a copy of this Judgment, forthwith.

Sd/-

JUDGE Ckk