Karnataka High Court
Ramakant S/O Sadashiv Shet vs Manjunath S/O. Pandurang Revankar on 5 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2024:KHC-D:2493
CRL.RP No. 100309 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100309 OF 2022 (397)
BETWEEN:
RAMAKANT S/O. SADASHIV SHET,
AGE: 56 YEARS, OCC. GOLDSMITH,
R/O. KHB COLONY, KARWAR.
...PETITIONER
(BY SRI. HANUMESH M. DESAI, AMICUS CURIA)
AND:
1. MANJUNATH S/O. PANDURANG REVANKAR,
AGE: 36 YEARS, OCC. GOLDSMITH,
R/O. HABBUWADA, KARWAR-581301.
2. THE STATE OF KARNATAKA
R/BY PUBLIC PROSECUTOR,
KARWAR.
...RESPONDENTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE FOR R1;
SMT. GIRIJA S. HIREMATH, HCGP FOR R2)
Digitally signed by
SUJATA SUBHASH
PAMMAR THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
Date: 2024.02.13
15:54:05 +0530
401 OF CR.P.C., SEEKING TO CALL FOR THE RELEVANT RECORDS
IN CC NO. 1129/2007 DATED 18.01.2013 ON THE FILE OF THE
COURT OF THE JMFC (II-COURT), AT KARWAR AND RECORDS IN
CRL. APPEAL NO. 38/2013 ON THE FILE OF THE II ADDL.
DISTRICT AND SESSIONS JUDGE, UTTARA KANNADA, KARWAR
DATED 30.03.2022 . WHICH WAS FILED U/S 138 OF N.I. ACT.
AND ALLOW THIS CRIMINAL REVISION PETITION BY SETTING
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE IN CC
NO. 1129/2007 DATED 18.01.2013 ON THE FILE OF THE COURT
OF THE JMFC (II-COURT), AT KARWAR AND CONFIRMING THE
SENTENCE OF CONVICTION U/S 138 OF N.I. ACT IN CRL. APPEAL
NO. 38/2013 ON THE FILE OF THE II ADDL. DISTRICT AND
SESSIONS JUDGE, UTTARA KANNADA, KARWAR DATED
30.03.2022.
-2-
NC: 2024:KHC-D:2493
CRL.RP No. 100309 of 2022
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition under Section 397 read
with Section 401 of the Criminal Procedure Code (for
short, 'the Cr.P.C') is filed with a prayer to set aside the
judgment and order of conviction and sentence passed by
the Court of JMFC (II-Court) at Karwar, in
C.C.No.1129/2007 dated 18.01.2013 and the judgment
and order passed in Criminal Appeal No.38/2013 by the
Court of II Additional District and Sessions Judge, Uttara
Kannada, Karwar.
2. Heard the learned counsel for the parties.
3. The respondent herein had initiated proceedings
against the petitioner for the offence punishable under
Section 138 of the Negotiable Instrument Act (for short,
'the N.I.Act') before the trial Court in C.C.No.1129/2007.
In the said proceedings, the petitioner pleaded not guilty
and claimed to be tried. In support of his case, the
respondent had examined himself as PW1 and another two
NC: 2024:KHC-D:2493
witnesses were examined as PWs.2 and 3 and he got
marked 07 documents as Exs.P1 to P7. In support of his
defence, the petitioner herein examined himself as DW.1,
but no document was marked on behalf of the petitioner.
The trial Court after hearing the arguments addressed on
both sides vide the impugned judgment and order had
convicted petitioner for the offence punishable under
Section 138 of the NI.Act and sentenced him to undergo
simple imprisonment for a period of 1 year and also pay a
fine of Rs.5,000/- and in default to undergo simple
imprisonment for a period of three months. The said
judgment and order of conviction and sentence was
confirmed by the Court of the II Additional District and
Sessions Judge, Uttara Kannada, Karwar, in Criminal
Appeal No.38/13 by order dated 30.03.2022. Therefore,
the petitioner is before this Court.
4. Learned counsel for the petitioner submits that
the Courts below have erred in convicting the petitioner
for the alleged offence. He submits that the sentence
NC: 2024:KHC-D:2493
imposed by the Courts below against the petitioner is on
higher side. Accordingly, prays to allow the petition.
5. Per contra, learned counsel for the respondent
has argued in support of the impugned judgment and
order of conviction and sentence and prays to dismiss the
petition.
6. Before the trial Court the
complainant/respondent had examined himself as PW.1
and another two witnesses were examined as PWs.2 and 3
and 7 documents were marked as Exs.P.1 to P.7 in
support of his case. It is the case of the complainant that
he had paid a sum of Rs.87,000/- to the petitioner herein
through a account, payee cheque and towards repayment
of the said amount, cheque in question bearing No.775272
dated 06.12.2023 for a sum of Rs.87,000/- which was
drawn on Canara Bank Karwar, was issued by the
petitioner. The said cheque on presentation for realization
was dishonored by the drawee bank.
7. The legal notice issued on behalf of the
respondent, in compliance of the statutory requirements
NC: 2024:KHC-D:2493
as provided under Negotiable Instrument Act had returned
with postal shara "Not Claimed'. The complaint was filed
by the complainant before the trial Court after complying
all the statutory requirements as provided under Section
Negotiable Instrument Act. Petitioner who had appeared
before the trial Court had not disputed the issuance of the
cheque and also not disputed the signature found in the
cheque nor he had disputed that the cheque was drawn on
the account maintained by him in Canara Bank, Karwar.
Therefore, a presumption arose under Section 139 of the
NI.Act as against the petitioner. The said presumption was
not rebutted by the petitioner by putting up a probable
defence. The only defence raised by the petitioner is that
the cheque in question which was signed by him was
stolen by the complainant and misused.
8. It is not in dispute that the complainant had
advanced the loan to the petitioner through bank
transaction. Therefore the defence put forward by the
petitioner is liable to be rejected. In addition to the same
petitioner had taken a contention that the legal notice
NC: 2024:KHC-D:2493
issued to him was not served. The material on record
would go to show that the legal notice issued to the
petitioner had returned with a postal shara " Not Claimed".
The Courts below have therefore rightly held that there is
a sufficient service of notice on the petitioner. The
complainant/respondent has proved his transaction with
the petitioner and he also has complied with the statutory
requirements before filing the complaint. Therefore, the
initial burden has been discharged by complainant.
However, the presumption that arose against the
petitioner remained unrebutted and under the said
circumstance, the order of conviction passed by the Courts
below against the petitioner cannot be found fault with.
9. However, insofar as the order of sentence is
concerned, I am of the considered view that the sentence
imposed on the petitioner by the trial Court and confirmed
in appeal is a little harsh. The trial Court in addition to the
directing petitioner to pay compensation of Rs.1,15,000/-
to the complainant, has also sentenced the petitioner to
undergo simple imprisonment for a period of 1 years and
NC: 2024:KHC-D:2493
to pay fine of Rs.5,000/-. Under the circumstances, the
order of sentence passed by the trial Court which is
confirmed in criminal appeal needs to be modified.
Accordingly, the following:
ORDER
a) The criminal revision petition is partly allowed.
b) The judgment and order of conviction passed
against the petitioner by the Courts below
convicting him for the offence punishable under
Section 138 of the N.I.Act is confirmed.
However, the sentence imposed by the Courts
below is modified and petitioner is sentenced to
pay fine of Rs.1,15,000/- and in default he shall
undergo simple imprisonment for a period of 6
months. Out of the fine amount of Rs.1,15,000/-
an amount of Rs.1,10,000/- shall be paid as
compensation to the petitioner and balance fine
NC: 2024:KHC-D:2493
amount of Rs.5,000/- shall be adjusted towards
the litigation expenses to the State.
Sd/-
JUDGE
AC
