Prakash Ramappa Neginhal vs Surendra Yallappa Patil
2022 Latest Caselaw 7743 Kant

        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

       DATED THIS THE 31ST DAY OF MAY 2022

                        BEFORE

        THE HON'BLE MR.JUSTICE K. NATARAJAN

  CRIMINAL REVISION PETITION NO. 2006 OF 2013

BETWEEN:

SHRI. PRAKASH RAMAPPA NEGINHAL,
AGE: 37 YEARS, OCC: BUSINESS,
R/O. CHIKKAMUNAVALLI,
TQ. KHANAPUR, DIST. BELAGAVI.
                                              ... PETITIONER
(BY SRI. SANTOSH B. RAWOOT, ADV.)

AND:

SHRI. SURENDARA YALLAPPA PATIL
AGE: 56 YEARS,
OCC: AGRICULTURE AND MEDICAL PRACTITIONER,
R/O. KARAVINKOPPA,
TQ. KHANAPUR, DIST. BELAGAVI.
                                             ... RESPONDENT
(BY SRI. K. ANANDKUMAR, ADV.)




     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C. SEEKING TO SET ASIDE
THE JUDGMENT AND ORDER PASSED BY THE PRESIDING OFFICER,
                                     2




FAST TRACK COURT-III, BELAGAVI IN CRIMINAL APPEAL
NO.121/2012 DATED 09.11.2012 IN DISMISSED THE APPEAL BY
CONFIRMING THE ORDER OF CONVICTION AND SENTENCE PASSED
IN CRIMINAL CASE NO.851/2010 DATED 25.04.2012, PASSED BY
THE CIVIL JUDGE AND JMFC, KHANAPUR BY ALLOWING THIS
REVISION PETITION.

     THIS REVISION PETITION COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                                ORDER

This revision petition is filed by the petitioner-accused under

Section 397 and 401 of Criminal Procedure Code (for short 'Cr.P.C.')

for setting aside the judgment of conviction and sentence passed by

the Civil Judge and J.M.F.C., Khanapur in Criminal Case

No.851/2010 dated 25.04.2012 for the offence punishable under

Section 138 of N.I. Act. Having convicted the petitioner has

sentenced to undergo six months simple imprisonment and to pay

fine amount of Rs.1,51,000/- and the same was confirmed by the

Fast Track Court-III, Belagavi (referred as 'first Appellate Court') in

Criminal Appeal No.121/2012 dated 09.11.2012.

2. Heard the arguments of learned counsel for the

petitioner and respondent. For the sake of convenience, rank of the

parties before the Trial Court is retained.

3. The case of the complainant before the Trial Court is

that the accused and the complainant known to each other and the

accused has borrowed a hand loan of Rs.1,51,000/-, for the

repayment of said hand loan he has issued a cheque bearing

No.818886 dated 01.07.2010 drawn on Belgaum District Central

Co-operative Bank Ltd., Belgaum branch, Parishwad, Taluk

Khanapur. The same was presented before the Bank which was

returned on 08.07.2010 with an endorsement as "insufficient

balance". Hence, the complainant issued a legal notice on

13.07.2010 calling the accused to give back money. Accordingly,

the accused received the notice but did not bother to reply to the

notice or repay the money. Therefore a complaint came to be filed

under Section 200 of Cr.P.C. for the offence punishable under

Section 138 of N.I. Act.

4. The Trial Court after taking the cognizance secured the

presence of the accused. He appeared and pleaded not guilty and

claims to be tried. Accordingly, the complainant examined himself

as PW-1 and got marked 5 documents. Thereafter, the statement

of accused under Section 313 of Cr.P.C. was recorded. The case of

the accused is one of the total denial and not entitled any defence

after hearing the arguments. The Trial Court found accused guilty

and convicted him for Rs.1,51,000/- payable as fine amount and for

six months simple imprisonment. The same was challenged before

the first Appellate Court in Criminal Appeal No.121/2012 under

Section 374 of Cr.P.C. which came to be dismissed by confirming

the judgment of conviction by the Trial Court. Hence, the

petitioner-accused is before this Court.

5. The learned counsel for the petitioner-accused

contended that the judgment of both the Courts is illegal and

arbitrary in the law. Where the complainant did not produce any

documents other than cheque and he has taken the defence only

borrowing a loan of Rs.40,000/- from the complainant and issued a

cheque but not for Rs.1,51,000/- and also payment of income tax

for Rs.20,000/-. The same shall be paid by cheque which in

grounds were not considered by the Trial Court to convict. Further

in the appeal, the first appellate Court not given any opportunity to

the petitioner-accused for arguing the matter before passing the

judgment, which is erroneous and liable to set aside and hence,

prayed for allowing the petition.

6. Per contra, the learned counsel for the respondent

supported the judgment of both the Courts and contended that

accused admitted the issuance of cheque and the other

presumption available in favor of the complainant which was not

rebuted by leading any evidence produced any document.

Therefore, the commence of the petitioner-accused is acceptable,

that the accused is entitled for acquittal and the learned counsel

also contended that the accused also produced an agreement copy

of the same before the Magistrate but unfortunately it was not

marked by the learned counsel appearing in the Trial Court and if it

is marked there is no cause for the accused and even otherwise the

accused did not entered the witness box before the Magistrate

during the course of examination. Therefore, he prayed for

dismissing the revision petition.

7. Having heard the arguments of both the learned

counsels and perused the materials on record.

8. The following point that arises for consideration is:

"Whether both the Courts below have

committed error in convicting the petitioner-accused

for the offence punishable under Section 138 of N.I.

Act and liable to be set aside?"

9. On perusal of the records produced before the Trial

Court reveals the case of the complainant that the accused issued a

cheque for Rs.1,51,000/- drawn on Belgaum District Central Co-

operative Bank Ltd., Belgaum branch, Parishwad, Taluk Khanapur,

though the accused deemed the contention in the cross

examination that he has sent reply to the legal notice but the same

was not produced by the complainant not at all support the

contention. The accused did not produce a copy of the reply notice

and also not entered in the witness box and not led any evidence.

However, in the cross examination, he has taken two contentions

stating that the accused borrowed only Rs.40,000/- and issued a

cheque for discharge, but not Rs.1,51,000/- for repayment of the

loan. The accused before the Trial Court in the cross examination

of PW-1 reveals that he has admitted the issuance of cheque to the

PW-1 and according to him he has borrowed only Rs.40,000/- and

not Rs.1,51,000/-. But since only Rs.40,000/- the contention of the

accused agreed and considered, but he has not proved the same by

leading any evidence either examination himself or filing the written

arguments.

10. That apart, he has contended that the complainant did

not have any capacity to pay such amount. The complainant has

stated what he argued in the Trial Court. Though the complainant

said to be paid more than Rs.20,000/- cash given by him accepted

through cheque, but it is not a ground for dismissing the complaint

filed by the complainant. Accepting his contention, once the

accused admitted the issuance of cheque and borrowing the loan

that itself it is sufficient to proved the case of the complainant.

That apart, as per Section 138 of N.I. Act, legal presumption

available to the complainant and only if it is rebuted by the accused

by leading any evidence by producing any documents. Otherwise

the accused cannot be escaped from liability of payment.

11. That apart, complainant counsel also brought to the

notice that the accused also executed an agreement in favor of the

complainant on the same day, before he had agreed to pay an

amount of Rs.1,51,000/-. The Trial Court records clearly reveals

that the original agreement had been produced by the complainant

but unfortunately the same was not marked by the Trial Court.

12. Of course, the complainant could have filed application

under the provisions of Section 391 of Cr.P.C., in the Appellate

Court but evidence and even the issuance of cheque has not denied

by accused and the Hon'ble Supreme Court also in recent judgment

has held that if any agreement is executed along with the cheque

then the liability of accused, repayment cannot be escaped.

Therefore, the Trial Court has not committed any error in passing

the judgment by holding accused guilty.

13. That apart the only contention of the petitioner is that

the first Appellate Court did not give an opportunity for hearing the

arguments and passed the judgment in this regard. The first

Appellate Court order sheet reveals that the first Appellate Court

given sufficient opportunities for hearing the arguments to the

accused counsel. But the petitioner's counsel continuously

remained absent inspite of giving sufficient opportunities. However,

the first Appellate Court though dismissed the appeal and passed

the judgment by disposing the appeal on merits.

14. Of course, the first Appellate Court ought to have

passed the judgment by amicus-curiae to assist the Court. But, the

transaction was made in the year 2008. The judgment passed by

the Trial Court was in the year 2012 and the first Appellate Court

also disposed off the matter in the year 2012. Already ten years

have been lapsed, therefore remanding the matter to the District

Court will not serve any purpose.

15. Considering these facts and circumstances of the case

and at the request of the petitioner's counsel it is deemed fit and

appropriate to modify the sentence instead of confirming the

judgment of both Courts.

16. Accordingly, the revision petition is allowed in part.

17. The judgment of conviction of both the Courts is hereby

confirmed. However, the sentence of fine imposed on the petitioner

it is deem proper to enhanced the fine amount to Rs.2,00,000/- by

setting aside the imprisonment for six months.

18. The sentence of the Trial Court is modified as follows:

The sentence of six months imprisonment is set aside and

fine amount of Rs.1,51,000/- is increased to Rs.2,00,000/- and in

default of fine amount, he shall undergo simple imprisonment for

one year.

If the fine amount is already collected, an amount of

Rs.1,95,000/- shall be paid to the complainant as compensation

under Section 357 of Cr.P.C. and Rs.5000/- to the State.

Sd/-

JUDGE

SMM