Sheik Ali vs H R Thilotham
2023 Latest Caselaw 161 Kant

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                                                   CRL.RP No. 877 of 2018




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 3RD DAY OF JANUARY, 2023

                                      BEFORE
                      THE HON'BLE MR JUSTICE R. NATARAJ
                CRIMINAL REVISION PETITION NO. 877 OF 2018
            BETWEEN:

            SHEIK ALI
            S/O FIAZ ALI,
            AGED ABOUT 35 YEARS,
            COFFEE PLANTER,
            OPP: MALNAD WHEEL ALIGNMENT,
            MALLANDUR ROAD, UPPALLI,
            INDAVARA POST,
            CHIKKAMAGALURU TALUK AND DISTRICT-577101.

                                                             ...PETITIONER
            (BY SRI. SACHIN B.S., ADVOCATE)

            AND:

            H.R. THILOTHAM
            S/O H.D. RAMEGOWDA,
            AGED ABOUT 38 YEARS,
            COFFEE PLANTER,
            R/AT BYNEKERE ESTATE,
Digitally
signed by   ANOOR POST,
SUMA        CHIKKAMAGALURU TALUK AND DISTRICT-577126.
Location:
HIGH                                                        ...RESPONDENT
COURT OF
KARNATAKA   (BY SRI. SATISH G. RAIKAR, ADVOCATE)

                 THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
            SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973 BY
            THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
            IMPUGNED JUDGMENT DATED 08.02.2018, IN CRL.A.NO.50/2017 ON
            THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT
            CHIKKAMAGALURU AND JUDGMENT DATED 03.03.2017 IN CRIMINAL
            CASE NO.290/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
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                                             CRL.RP No. 877 of 2018




AND JMFC AT CHIKKAMAGALURU, CONSEQUENTLY ALLOW CRIMINAL
APPEAL NO.50/2017 AS PRAYED FOR.

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

The petitioner has challenged the concurrent finding of

fact recorded by the Trial Court as well as the First Appellate

Court convicting the petitioner for an offence punishable under

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

'the N.I. Act').

2. The respondent herein lodged a private complaint

accusing the petitioner herein of an offence punishable under

Section 138 of the N.I. Act. He claimed that the petitioner had

borrowed a loan of Rs.3,50,000/- from him and towards

repayment of the said loan, the petitioner had issued a cheque

dated 12.01.2012 for a sum of Rs.3,50,000/- and when the

said cheque was presented for encashment, it was dishonoured

as the account was closed. After issuing appropriate notice of

demand, the respondent filed a complaint accusing the

petitioner of an offence punishable under Section 138 of the

N.I. Act.

CRL.RP No. 877 of 2018

3. The case was contested by the petitioner herein.

The petitioner claimed that he and the respondent had entered

into a partnership to conduct business in mines and minerals

and that the said partnership was wound up and the parties

had settled the case in terms of which the petitioner was liable

to pay a sum of Rs.3,50,000/- and towards the same, he had

passed on the cheque in question to the respondent. He

claimed that he could not pay the said amount and hence,

entered into a settlement, in terms of which, the respondent

was permitted to cut and remove silver oak trees that were

raised in the land of the father of the petitioner.

4. The Trial Court after considering the contentions,

held that the respondent herein had proved that the petitioner

herein was liable to pay a sum of Rs.3,50,000/- to him and that

the cheque in question was lawfully drawn by the petitioner

herein towards discharge of the debt. The Trial Court held that

the petitioner herein was unable to prove the contention that

the respondent herein had cut and removed timber towards the

satisfaction of the cheque amount and hence, convicted the

petitioner herein for the offence punishable under Section 138

CRL.RP No. 877 of 2018

of the N.I. Act. The appeal in Crl.A. No.50/2017 preferred

there against by the petitioner was dismissed. Being aggrieved

by the said judgments, this revision petition is filed.

5. The learned counsel for the petitioner contended

that the respondent was permitted to cut and remove timber

worth Rs.3,50,000/-. However, the respondent attempted to

remove timber that was valued at more than Rs.3,50,000/- and

therefore, the petitioner had lodged a complaint. He therefore

submitted that the defence set up by the petitioner was

probable, which the Courts failed to consider.

6. Per contra, the learned counsel for the respondent

claimed that there was nothing on record to establish that the

respondent had agreed to cut and remove timber and that this

was invented only after the proceedings under Section 138 of

the N.I. Act were initiated.

7. I have considered the contentions urged by the

learned counsel for the petitioner and the learned counsel for

the respondent.

CRL.RP No. 877 of 2018

8. The petitioner has admitted his liability to pay a

sum of Rs.3,50,000/- to the respondent and that he had passed

on the cheque for discharge of such liability. The petitioner was

unable to demonstrate that the said debt was discharged duly.

The Trial Court and the First Appellate Court were therefore

justified in convicting the petitioner herein for the offence

punishable under Section 138 of the N.I. Act. There is no error

in the appreciation of evidence by the Trial Court as well as the

First Appellate Court or the application of law to the facts and

circumstances of the case warranting interference by this Court

in proceedings under Section 397 of the Cr.P.C.

9. Hence, this petition lacks merit and is dismissed.

Any amount in deposit is permitted to be withdrawn by

the respondent.

Sd/-

JUDGE

SMA