Karnataka High Court
Mr Mari Muttu vs Bharathi Souharda Credit on 8 March, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.954/2021
BETWEEN:
MR. MARI MUTTU
AGED ABOUT 52 YEARS
S/O SUBBAYYA
R/AT NO.3-166, 'B' GROUND
MALLAR VILLAGE, KAUP POST
UDUPI TALUK & DISTRICT-574 106. ... PETITIONER
(BY SRI HAREESH BHANDARY T., ADVOCATE)
AND:
BHARATHI SOUHARDA CREDIT
CO-OPERATIVE LIMITED
R.NO.541, 1ST FLOOR
JAFFER TOWERS, KAUP-574 106
REPRESENTED BY ITS SECRETARY
SHASHIDHARA S.M. ... RESPONDENT
(BY SRI NISHIT KUMAR SHETTY, ADVOCATE [THROUGH V.C.])
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
15.02.2019 PASSED BY THE III ADDITIONAL CIVIL JUDGE AND
JMFC, UDUPI IN C.C.NO.2258/2017 AND THE JUDGMENT AND
2
ORDER DATED 05.06.2020 PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, UDUPI IN CRL.A.NO.183/2019
AND ETC.,
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though this petition is listed today for admission, with the
consent of both the Counsel, the matter is taken up for final
disposal.
2. This petition is filed under Section 397(1) read with
Section 401 of Cr.P.C., praying to set aside the judgment and
order of conviction dated 15.02.2019 in C.C.No.2258/2017
passed by the III Additional Civil Judge and Judicial Magistrate
First Class, Udupi and the judgment and order dated 05.06.2020
in Criminal Appeal No.183/2019 passed by the Court of Principal
District and Sessions Judge, Udupi District, Udupi and acquit the
petitioner.
3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the respondent.
4. The factual matrix of the case of the prosecution is
that the complainant is the Co-operative Society and has been
dealing with business of banking under the name and style as
"Bharathi Souharda Credit Co-operative Limited". The petitioner
has availed the loan of Rs.20,000/- from the respondent -
Society on 08.02.2016 agreeing to repay the said amount with
interest, but failed to repay the same. On approach, the
petitioner issued a cheque for a sum of Rs.25,963/- on
06.12.2016. When the same was presented, it was dishonoured.
Hence, prosecuted for the offence punishable under Section 138
of the N.I. Act.
5. The Trial Court after considering the evidence of
P.W.1, which is unchallenged and considering the documents -
Exs.P1 to P5, particularly, the cheque-Ex.P2 and also the postal
acknowledgement - Ex.P5 pertaining to this petitioner, no reply
was given. When no reply was given and when P.W.1's evidence
was not challenged convicted the accused/revision petitioner for
an amount of Rs.64,136/- and in that, a sum of Rs.59,136/- paid
to the complainant and an amount of Rs.5,000/- vested with the
State. Being aggrieved by the said order, the appeal in
Crl.A.No.183/2019 is filed before the Appellate Court. The
Appellate Court on re-appreciation of the material available on
record, dismissed the appeal in coming to the conclusion that the
Apex Court in the case of Indian Bank Association v. Union
of India, made it clear that there is no room of lethargic
approach by any litigant, particularly, when the matter involved
is the offence under Section 138 of the N.I.Act. Being aggrieved
by the said order, the present revision petition is filed before the
Court.
6. The main contention of the revision petitioner before
this Court is that the order passed by the Trial Court and the
Appellate Court, are erroneous and due to the ill-health, the
petitioner could not able to appear before the Trial Court and
also the Trial Court has committed an error in not recording the
313 statement.
7. The learned counsel appearing for the respondent
also would submit that the Trial Court and the Appellate Court
considering the judgment of the Apex Court rightly comes to the
conclusion that there is no need to examine the 313 statement
when the accused did not challenge the evidence led by the
complainant, who has been examined as P.W.1.
8. Having heard the respective counsel and on perusal
of the material available on record, first of all when the cheque
was bounced, notice was issued. Notice was acknowledged in
terms of Ex.P5 and no reply was given. Apart from that, the
complainant is the Society, which advanced the loan of
Rs.20,000/- and when the amount was not repaid, cheque was
issued acknowledging the liability and the cheque was bounced.
Evidence of P.W.1 is also unchallenged. Hence, the Trial Court
before convicting him taken note of the judgment of the Apex
Court in the case of Indian Bank Association v. Union of
India reported in 2014(5) SCC 590. The Appellate Court also
re-considered the material in paragraph No.18, taken note of the
very same judgment and comes to the conclusion that when the
cheque has never denied by the petitioner, which is marked as
Ex.P2, unable to accept the contention of the revision petitioner.
9. Having heard the respective counsel and on perusal
of the order passed by the Trial Court as well as the Appellate
Court, when the subject matter of cheque - Ex.P2 is not denied
and the evidence of P.W.1 is also unchallenged, the contention
of the learned counsel for the petitioner is that the complainant
is not authorized, cannot be accepted since the complainant is
none other than the Co-operative Society and the loan was
availed by the petitioner herein. For non-payment of the loan
amount only cheque was issued. It is not the case that the
cheque-Ex.P2 not belongs to him. When the cross-examination
has not been done and also the Apex Court categorically held in
the judgment that lethargic approach by any litigant,
particularly, when the matter involved is the offence under
Section 138 of the N.I. Act, the very contention of the
petitioner's counsel cannot be accepted. In the case on hand, I
do not find any material to admit the matter as the order passed
by the Trial Court as well as the Appellate Court suffers from any
legality, correctness and propriety and no ground to admit the
revision petition.
10. In view of the discussions made above, I pass the
following:
ORDER
The Revision Petition is dismissed.
Sd/-
JUDGE
cp*
