Karnataka High Court
Praveen S/O Laxman Dhamnekar vs Shree Mata Co-Operative Credit Society ... on 7 August, 2024
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NC: 2024:KHC-D:11221
CRL.RP No. 100217 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.100217 OF 2017 (397)
BETWEEN:
PRAVEEN S/O. LAXMAN DHAMNEKAR,
AGE: ABOUT 45 YEARS, OCC: BUSINESS,
R/O: H.NO.303, BHANDUR GALLI, BELAGAVI.
...PETITIONER
(BY SRI YASH R.NADKARNI, ADVOCATE FOR
SRI VITTHAL S.TELI, ADVOCATE FOR PETITIONER)
AND:
SHREE MATA CO-OPERATIVE CREDIT SOCIETY LTD.,
HAVING ITS OFFICE AT GOODS SHED ROAD,
BELAGAVI, THROUGH ITS GENERAL MANAGER,
MR. SURESH C.VASTARAD,
AGE: MAJOR, OCC: SERVICE,
R/O: GOODS SHED ROAD, BELAGAVI.
...RESPONDENT
(NOTICE TO RESPONDENT IS SERVED)
Digitally signed by THIS CRIMINAL REVISION PETITION IS FILED UNDER
YASHAVANT
NARAYANKAR SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO
Location: HIGH COURT
OF KARNATAKA
SET ASIDE THE JUDGMENT DATED 03.04.2017 IN CRIMINAL APPEAL
NO.08/2017 BY THE IX ADDL. DISTRICT AND SESSIONS JUDGE,
BELAGAVI WHEREIN CONFIRMED THE JUDGMENT DATED 02.01.2017
PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC-BELAGAVI IN
C.C.NO.1475 OF 2009 AND THEREBY ACQUITTING THE PETITIONER /
ACCUSED AND ETC.,
THIS CRIMINAL REVISION PETITION, COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:11221
CRL.RP No. 100217 of 2017
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
ORAL ORDER
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)
This revision petition is filed under Section 397 read
with Section 401 of Criminal Procedure Code (for short,
"Cr.P.C") by the accused, who is convicted by the Trial
Court for the offence punishable under Section 138 of
Negotiable Instruments Act, 1881 (for short, "N.I.Act"),
which came to be confirmed by the Sessions Court by
dismissing the appeal filed by him.
2. For the sake of convenience, the parties are
referred to by their ranks before the Trial Court.
3. In support of the petition, learned counsel for
the accused submitted that the impugned Judgment and
order of the trial Court as well as the Sessions Court are
contrary to law, facts and evidence placed on record. They
have erred in not considering the fact that the complainant
has not produced any documents to prove that accused has
borrowed the loan. It has also failed to produce the
statement of account of accused. The Courts below have
NC: 2024:KHC-D:11221
also not considered the fact that the writings on the cheque
and signature are in different ink and also notice is not duly
served as required under Section 138 of the N.I.Act.
Sufficient opportunity was not provided to the accused to
defend himself. Viewed from any angle, the orders under
challenge are not sustainable and prays to set aside the
same by allowing the revision petition.
4. Though duly served with notice, complainant has
not appeared and resisted the petition.
5. Heard arguments and perused the record.
6. Complainant which is a credit co-operative
society, prosecuted the accused on the allegations that
despite borrowing loan, he has failed to pay the
installments and when the cheque issued by him was
presented for realization, it came to be dishonoured on the
ground that account is closed and therefore after issuing
the notice and on failure of accused either to comply with
the notice or pay the amount due, complaint was filed.
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7. At every stage of the proceedings, the accused
has failed to challenge the contention of the complainant. At
the first instance, he has failed to send a reply to the legal
notice putting forth his plausible defence either admitting or
denying the transaction. He has also failed to cross-
examine P.W.1. Under Section 139 of the N.I.Act,
presumption is operating in favour of the complainant that
the cheque was issued towards repayment of any legally
recoverable debt or liability, placing the initial burden on
the accused to prove otherwise. Only when the presumption
is dislodged, the burden would shift on the complainant to
prove his case. Having failed to cross examine P.W.1, it
does not lie in the mouth of the accused to dispute the
transaction and expect the complainant to produce
documents to establish that he was a Member of the society
and borrowed the loan in question as in a Civil suit. It is
also not the defence of the accused that he has made any
payments towards the installments so as to demand the
complainant to produce the account statement.
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8. In the above facts and circumstances, both trial
Court and Sessions Court are justified in accepting the case
of the complainant and convicting the accused. The
punishment imposed is also commensurate with the charge
proved against the accused. The impugned Judgments have
not caused any gross miscarriage of justice or resulted in
manifest illegality so as to interfere in exercise powers
under Section 397 of Cr.P.C. In the result, the petition fails
and accordingly, it is dismissed.
9. Registry is directed to send back the trial Court
and Sessions Court records along with copy of this order.
Sd/-
(J.M.KHAZI)
JUDGE
CKK, CT: UMD
