M Danesh S/O. Agasara Ramappa vs Najir Bhasha S/O. Basha Sab
2022 Latest Caselaw 1765 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH
        DATED THIS THE 04TH DAY OF FEBRUARY, 2022
                         BEFORE
       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

        CRIMINAL REVISION PETITION No.100035/2022

BETWEEN:
M DANESH S/O. AGASARA RAMAPA,
AGED ABOUT 43 YEARS, OCC: NIL
R/O. PADMA NILAYA NEAR WATER TANK,
VINAYAKA BADAVANE SANKALAPUR,
TALUKA HOSAPETE DISTRICT BALLARI-591 301.
                                             ...PETITIONER
(BY SHRI.SRINIVAS B. NAIK, ADVOCATE)
AND:
NAJIR BHASHA S/O. BASHA SAB,
AGED AOBUT 40 YEARS, OCC: TYRE DEALER,
R/O. NEAR H L C CANAL AREA BALLARI MAIN ROAD,
HOSAPETE DISTRICT BALLARI-591 301.
                                            ...RESPONDENT
(BY SHRI. SATISH M. S, HCGP)
     THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS AND ALLOW
THIS CRIMINAL REVISION PETITION AND SET ASIDE THE
JUDGMENT AND ORDER DATED 13.02.2020 PASSED IN CRIMINAL
APPEAL NO.5015/2018 ON THE FILE OF III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BALLARI SITTING AT HOSAPETE AND SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 10.04.2018 PASSED IN CC NO.1303/2017 ON
THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, HOSAPETE
FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF
NEGOTIABLE INSTRUMENTS ACT AND ACQUIT THE PETITIONER
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF THE
NEGOTIABLE INSTRUMENTS ACT.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
                                    2




                             ORDER

This Revision Petition is filed by the accused

against the concurrent findings recorded by the

Courts below, convicting and sentencing him for

offence punishable under Section 138 of N.I. Act.

2. The learned magistrate has sentenced the

accused to pay a fine of Rs.90,000/-, in default, to

undergo simple imprisonment for a period of 6

months and out of the fine amount, a sum of

Rs.85,000/- has been ordered to be paid to

complainant as compensation and remaining amount

of Rs.5,000/- is confiscated to state.

3. The learned Sessions Judge has dismissed

the appeal preferred by the accused, thereby

confirmed the conviction and sentence passed by the

trial court.

4. Heard both side and perused the material

on record.

5. It is the case of complainant that the

accused borrowed a sum of Rs.75,000/- from him in

the month of December-2014 with a promise to

repay the same and inspite of repeated request, the

accused failed to repay the amount and issued a

cheque bearing No.000870 dated 22.04.2015 drawn

on SUCO Bank Limited., Hosapete Branch. When the

said cheque was presented for encashment by the

complainant through his banker Pragathi Krishna

Gramina Bank, Hosapete Branch, on 22.04.2015, the

same was returned for insufficient funds in the

account of the accused. Thereafter the complainant

issued a legal notice dated 21.05.2015 calling upon

the accused to repay the cheque amount within 15

days and inspite of service of notice, the accused

failed to pay the amount within the stipulated period

and thereby committed an offence punishable under

Section 138 of N.I. Act.

6. Before the trial court the complainant

examined himself as PW.1 and got marked Ex.P.1 to

5. The accused was examined as DW.1 and he got

marked Ex.D1 to 7.

7. It is the defence taken by the accused

that, the complainant has no capacity to lend the

amount and there was no need for the accused to

take a hand loan as alleged by the complainant, as

he is having sufficient income. In his evidence,

DW.1 has stated that both of them are friends and in

the year 2003 he purchased two lorries and he used

to purchase tyres from the complainant and at that

time he issued blank cheques towards security. The

complainant without returning the same has filed a

false complaint against him. He has stated that he

was not due any amount to the complainant and

there is no legally enforceable debt. He has further

stated that except the signature in the cheque the

other contents are not written by him.

8. It is an admitted fact that the accused has

not replied to the legal notice received by him. He

has not disputed the signature appearing on Ex.P.1,

the cheque in question. The trial Court has come to

the conclusion that the documents produced by the

accused reveals that he has purchased the vehicles

in the year 2003 and the entries in the pass book

are up to 03.07.2015. The cheque is dated

22.04.2015. Admittedly the cheque belongs to the

accused. According to the accused he gave the

cheque to the complainant towards security at the

time of purchasing the tyres. It is observed that

even though, Ex.D1 to 7 are marked through DW.1

the same does not disprove the case made out by

the complainant, as the accused has failed to rebut

the presumption available in favour of the

complainant and failed to prove that the cheque was

not issued towards debt or liability.

9. The appellate Court while re-appreciating

the evidence on record has taken into consideration

the defence put forth by the accused and reiterated

that the documents produced by the complainant

i.e., the original cheque is not at all disputed by the

accused on the other hand he has admitted the

issuance of cheque putting his signature. The

documents marked by the accused no way helps to

absolve his liability. After giving reasons both the

Courts have held that the complainant successfully

established his case. There is no illegality in the

concurrent findings recorded by the Courts below.

The Revision Petition fails and accordingly it is

dismissed.

10. The respondent/ complainant is at liberty

to withdraw the amount in deposit before the trial

Court.

(Sd/-) JUDGE PJ