Karnataka High Court
Hanumavva W/O Mudukappa vs Mohammed Nusurath S/O Abdul ... on 27 May, 2022
Bench: M G Uma
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL REVISION PETITION NO.200001/2016
BETWEEN:
HANUMAVVA W/O MUDUKAPPA
AGE: 45 YEARS, OCC: AGRIL &
HOUSEHOLD
R/O CANAL ROAD MANVI
TQ: MANVI, DIST: RAICHUR.
... PETITIONER
(BY SRI: SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
MOHAMMED NUSURATH
S/O ABDUL KHADAR
AGE: 46 YEARS, OCC: AGRICULTURE
R/O ISLAM NAGAR
TQ: MANVI, DIST: RAICHUR.
... RESPONDENT
(BY SRI: R.S.SIDHAPURKAR, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CRIMINAL
PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT
DATED 21.10.2015, PASSED BY II ADDL. DISTRICT &
SESSIONS JUDGE AT RAICHUR IN CRL.A.NO.31/2015,
WHEREIN THE APPEAL FILED BY THE PETITIONER WAS
DISMISSED BY CONFIRMING THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 14.07.2015 PASSED BY
THE CIVIL JUDGE & JMFC AT MANVI IN C.C.NO.188/2010 FOR
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THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT
AND CONSEQUENTLY ACQUIT THE PETITIONER, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
The revision petitioner is before this Court being
aggrieved by the judgment of conviction and order of
sentence dated 14.07.2015 passed in CC No.188 of 2010 by
the learned Civil Judge and JMFC, Manvi (for short 'the Trial
Court'), which was confirmed by the order dated 21.10.2015
passed in Criminal Appeal No.31 of 2015 by the learned II
Additional District and Sessions Judge, Raichur (for short 'the
Appellate Court'), seeking to set aside the same.
2. Brief facts of the case are that, the respondent
who is the complainant filed the private complaint in PC No.1
of 2010 against the accused alleging commission of offence
punishable under Section 138 read with Section 142 of NI Act.
It is alleged that accused had availed home loan of
Rs.1,00,000/- from the complainant and had issued the
cheque bearing No.147011 dated 21.05.2009 drawn in favour
of the complainant drawn on Pragathi Grameena Bank
(Tungabhadra Grameena Bank), promising to honor the
cheque on presentation. The complainant presented the
cheque for encashment, but the cheque was dishonoured with
an endorsement 'account closed'. It is stated that the
accused had closed the account after issuance of cheque only
to defraud the complainant. The complainant issued legal
notice calling upon the accused to repay the cheque amount.
Notice was served on the accused. The accused has given
untenable reply, but not repaid the cheque amount. Thereby
committed the offences as alleged.
3. Learned Magistrate took cognizance of the offence
and registered CC No.188 of 2010 against the accused for the
above said offence. The accused has appeared before the
Trial Court and pleaded not guilty for the charges levelled
against her. The complainant examined himself as PW1 and
got marked Exs.P1 to P8 in support of his contention. The
accused denied all the incriminating materials available on
record in her statement recorded under Section 313 of
Cr.P.C., but got examined herself as DW1 and got marked
Ex.D1 in support of her contention. The Trial Court after
taking into consideration all these materials on record, came
to the conclusion that the complainant has proved the guilt of
the accused beyond reasonable doubt for the offence
punishable under Section 138 of NI Act. Accordingly,
convicted and sentenced the accused as stated above. Being
aggrieved by the same, the accused has preferred Criminal
Appeal No.31 of 2015 before the learned II Additional District
and Sessions Judge, Raichur. The said appeal came to be
dismissed vide order dated 21.10.2015. Being aggrieved by
the same, the petitioner is before this Court in this revision.
4. Heard Sri.Shivanand V Pattanashetti, learned
counsel for the revision petitioner and Sri.R S Sidhapurkar,
learned counsel for the respondent. Perused the materials
placed on record including the Trial Court records.
5. Learned counsel for the revision petitioner
submitted that the cheque in question was issued on
21.05.2009. But it came to be dishonoured on 29.10.2009.
The account was closed on 16.06.2009 as the cheque in
question was lost by the accused. Therefore, the offence
under Section 138 of I Act is not at all made out. The Trial
Court as well as the Appellate Court ignored these facts and
proceeded to convict the accused. Therefore, he prays for
allowing the revision petition and to acquit the accused in the
interest of justice.
6. Per contra, learned counsel for the respondent-
complainant contended that the complainant is successful in
proving the guilt of the accused beyond reasonable doubt.
The Trial Court as well as Appellate Court considering the
materials on record convicted the accused. The accused has
not taken proper defence nor probablised the same. She has
taken the contention that the cheque in question was lost and
the complainant got the same, which is not a probablised
defence. Therefore, there are no merits in the revision and
prays for dismissal of the same.
7. In view of the rival contentions urged by learned
counsel for the both the parties, the point that would arise for
my consideration is:
"Whether the impugned judgment of
conviction and order of sentence passed by the
Trial Court, which was confirmed by the Appellate
Court calls for any interference?"
My answer to the above point is in 'Negative' for the
following:
REASONS
8. It is the contention of the complainant that the
accused had borrowed the hand loan of Rs.1,00,000/- and
had issued the cheque bearing No.147011 dated 21.05.2009.
When the cheque was presented for encashment, the same
was dishonoured as the account was closed. In spite of
issuance of legal notice, the cheque amount was not repaid by
the accused. The complainant examined himself as PW1 and
re-iterated his contention. It is specifically stated that the
accused deliberately closed the account after issuance of
cheque, only to defraud the complainant.
9. Even though the accused cross examined PW1 at
length, nothing has been elicited to probabalise his defence.
The accused has stepped into the witness box stating that the
cheque in question was lost, therefore, she closed the account
as mentioned in Ex.D1. Admittedly, she has not lodged any
complaint nor issued stop instructions to the bank in question.
Even though Ex.D1 was produced, it will not support the
defence taken by the accused that the account was closed
only for the reason that the cheque in question was lost.
10. It is pertinent to note that Ex.P8 is the reply
notice dated 19.12.2009 issued on behalf of the accused at
the initial point of time, taking defence that the cheque relied
by the complainant was created and forged by fraudulent
means. No specific defence is raised in the reply notice that
the cheque was lost and it was got by the complainant. There
is absolutely no details provided by the accused as to when
and where the cheque was lost and how the complainant
came in possession of the same even when she is examined
as DW1. Under such circumstances, I do not find any merit in
the contention raised by the revision petitioner.
11. It is submitted that the revision petitioner has
deposited Rs.1,00,000/- before the Trial Court.
12. I have gone through the impugned judgment of
conviction and order of sentence passed by the Trial Court.
Taking into consideration all the materials on record, the Trial
Court has arrived at a right conclusion. I do not find any
reason to interfere with the well considered order passed by
the Trial Court.
The revision petition being devoid of merits is
dismissed.
The respondent-complainant is entitled to withdraw the
fine amount said to have been deposited by the revision-
petitioner accused before the Trial Court, on due
identification.
Sd/-
JUDGE
*bgn/-
