Karnataka High Court
Basavaraj Bheemappa Ambiger vs M Pushparaj on 1 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.RP No. 100125 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100125 OF 2021 (397)
BETWEEN:
BASAVARAJ BHEEMAPPA AMBIGER
AGE: 58 YEARS, OCC BUSINES,
R/O. STAR BUILDING, PADADAYYANA,
HAKKAL, OLD HUBLI-580024,
DIST. DHARWAD.
...PETITIONER
(BY SRI A. P. MURARI, ADVOCATE)
AND:
M. PUSHPARAJ
AGE: MAJOR, OCC. MONEY LENDER,
R/O. K.H.B COLONY, KUSUGAL ROAD,
HUBBALLI, DIST. DHARWAD-580023.
...RESPONDENT
(BY SRI SURESH S. GUNDI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 AND
Digitally
401 OF CR.P.C.,1973 PRAYING TO CALL FOR AND EXAMINE THE
VIJAYALAXMI signed by
M BHAT VIJAYALAXMI
M BHAT RECORDS OF C.C.NO.497/2016 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, HUBBALLI AND CRIMINAL APPEAL
NO.47/2018 ON THE FILE OF THE I ADDL. DISTRICT AND
SESSIONS JUDGE, SITTING AT HUBBALLI, AS TO THE
CORRECTNESS, LEGALITY AND PROPRIETY OF THOSE FINDINGS
AND SENTENCE AWARDED TO THE ACCUSED-PETITIONER AND
SET ASIDE THE IMPUGNED JUDGMENT AND ORDER IN CRIMINAL
APPEAL NO.47/2018 DATED 07/11/2020 PASSED BY THE I ADDL.
DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING AT
HUBBALLI, CONFIRMING THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE PASSED BY THE PRINCIPAL CIVIL
JUDGE AND JMFC, HUBBALLI, IN C.C.NO.497/2016 DATED
23/05/2018 AND SET ASIDE THE JUDGMENT AND ORDER IN
C.C.NO.497/2016 DATED 23/05/2018 PASSED BY THE PRINCIPAL
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CRL.RP No. 100125 of 2021
CIVIL JUDGE AND JMFC, HUBBALLI, CONVICTING THE ACCUSED-
PETITION AND SENTENCING TO PAY A FINE OF RS.6,30,000/-
AND IN THE EVENT OF FAILURE TO PAY THE SAID FINE AMOUNT,
T`O UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF SIX
MONTHS AND FURTHER DIRECTING THAT OUT OF THE FINE
AMOUNT, THE COMPLAINT IS ENTIRE TO RS.6,20,000/- AND THE
REMAINING AMOUNT OF RS.10,000/- HAS TO BE REMITTED TO
THE GOVERNMENT TOWARDS EXPENDITURE OF PROSECUTION
OF THIS CASE.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. This revision petition under Section 397 read
with Section 401 of Cr.P.C. is filed with a prayer to set
aside the Judgment and order of conviction and sentence
passed by the Court of Principal Civil Judge and JMFC,
Hubbali in Criminal Case No.497/2016 dated 23.05.2018
and the Judgment and order dated 07.11.2020 passed by
the Court of I Additional District and Sessions Judge,
Dharwad sitting at Hubballi, in Criminal Appeal
No.47/2018.
2. Heard the learned counsel for the parties.
3. Respondent herein had initiated proceedings
against the petitioner herein before the Trial Court for the
offence punishable under Section 138 of Negotiable
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Instruments Act, 1881 (for short, 'the N.I.Act'). Petitioner
was tried for the said offence in the said proceedings.
4. In support of his case, the respondent had
examined himself as P.W.1 and two other witnesses were
examined as PW2 and PW3, and had produced 6
documents as Exs.P.1 to 6. In support of defence, the
petitioner/accused had examined himself as D.W.1,
however, no documents were marked in support of
defence. The Trial Court initially vide its Judgment and
order dated 03.09.2007 had acquitted the petitioner for
the offence punishable under Section 138 of the N.I. Act.
The said Judgment and order of acquittal passed by the
Trial Court was set aside by this Court in Criminal Appeal
No.1620/2007 dated 23.07.2010 and the matter was
remanded to the trial Court for fresh disposal of the case
in accordance with law.
5. Thereafter, the trial Court once again heard the
arguments addressed on both side and vide the impugned
judgment and order dated 23.05.2018 passed in
C.C.No.497/2016 had convicted the petitioner for the
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offence punishable under Section 138 of the N.I.Act and
sentenced him to pay a fine of Rs.6,30,000/- and in
default to undergo simple imprisonment for a period of 6
months. The said judgment and order of conviction and
sentence passed by the trial Court has been confirmed by
the Court of I Additional District and Sessions Judge,
Dharwad, Sitting at Hubballi, in Criminal Appeal No.47/208
vide its judgment and order dated 07.11.2020. Being
aggrieved by the same, petitioner is before this Court.
6. Learned counsel for the petitioner submits that
the Courts below have failed to properly appreciate the
oral and documentary evidence available on record. The
complainant/respondent has failed to prove his source of
income and he has also not proved the alleged transaction
with the petitioner and he submits that by raising probable
defence, petitioner had successfully rebutted the
presumption that arises against him under Section 139 of
the N.I.Act which has not been properly considered by the
Courts below. Accordingly, he prays to allow the petition.
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7. Per contra, learned counsel for the respondent
has argued in support of the impugned judgment and
order of conviction and sentence passed by the Courts
below.
8. It is the case of the complainant/respondent
that the petitioner who was acquainted to him had availed
loan of Rs.3,24,000/- and towards repayment of the same,
he had issued the cheque in question in his favour for a
sum of Rs.3,24,000/- and on presentation of the said
cheque for realization, the same was dishonoured by the
drawee bank with banker's shara "account closed', and
private complaint was lodged by the complainant, after
complying the statutory requirements under the provisions
of Negotiable Instrument Act. The petitioner, who had
entered his appearance before the trial Court, claimed to
be tried. Therefore, in support of his case, complainant
had examined himself as P.W.1 and other two witnesses
were examined as P.Ws.2 and 3. The original cheque was
marked as Ex.P.1 and cheque return memo was marked
as Ex.P.2 and copies of the legal notice issued by the
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respondent dated 29.01.2002 was produced as Ex.P.4 and
postal acknowledgment was produced as Ex.P.5. The
petitioner had not issued any reply to the legal notice
which was served on him.
9. The defence taken by the petitioner before the
trial Court is that, he had issued the cheque in question as
security towards the transaction which he had with the
complainant prior to the year 1994. He has not disputed
that the cheque in question was drawn on the account
maintained by him with his banker nor he had disputed
the signature found in the cheque in question. Therefore,
presumption arises against the petitioner under Section
139 of the N.I.Act. Though, the petitioner has put forward
a defence that the cheque in question was issued to the
respondent towards the security in respect of the
transaction that he had with the respondent in the year
1994, he has not proved the said transaction by producing
sufficient material before the trial Court. In effect the
petitioner has failed to rebut the presumption that arose
against him by raising a probable defence.
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10. The Courts below having appreciated this
aspect of the matter and also taking into consideration the
oral and documentary evidence placed by both the parties,
have rightly convicted the petitioner for the offence
punishable under Section 138 of the N.I.Act. I do not see
any illegality and irregularity in the impugned judgment
and order of conviction and sentence passed by the Courts
below, wherein the petitioner has been convicted for the
offences punishable 138 of the N.I.Act.
11. Insofar as the sentence passed by the Courts
below against the petitioner is concerned, the cheque in
question is issued by the petitioner towards repayment of
his legally recoverable debt of Rs.3,24,000/. During the
pendency of the appeal, petitioner had deposited a sum of
Rs.2,00,000/- before the trial Court and during pendency
of this criminal revision petition, petitioner has deposited a
sum of Rs.92,000/- before the trial Court. Therefore, he
has totally deposited a sum of Rs.2,92,000/- before the
trial Court. The trial Court had sentenced the petitioner to
pay fine of Rs.6,30,000/- and the said order of sentence
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has been confirmed by the appellate Court. Taking
consideration of the fact that the petitioner has shown his
bonafides by depositing the major portion of the cheque
amount during the pendency of the petition, I am of the
view that the order of sentence passed by the trial Court
which is confirmed by the appellant Court needs to be
modified. Accordingly, the following:
ORDER
a) The Criminal revision petition is allowed.
b) The judgment and order of conviction passed by
the Courts below are confirmed. However, the order
of sentence passed by the Court of the Principal Civil
Judge and JMFC At, Hubballi, in C.C.No.497/2016
dated 23.05.2018, which is confirmed in Criminal
Appeal No.47/2018 by the Court of the I Additional
District and Sessions Judge, Dharwad, sitting at
Hubballi, vide judgment and order dated 07.11.2020,
is modified.
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c) The petitioner is sentenced to pay fine of
Rs.4,24,000/- and in default he is directed to under
go simple imprisonment for a period of 6 month. Out
of the fine amount of Rs.4,24,000/- complainant shall
be entitled for a sum of Rs.4,14,000/- and remaining
amount of Rs.10,000/- shall be remitted to the
Government towards expenditure of the prosecution.
d) The amount, if any deposited by the petitioner is
permitted to be withdrawn by the respondent.
Sd/-
JUDGE
VMB para 1 to 5
AC para 6 to end
