Karnataka High Court
Arvind vs Vasanta on 6 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.RP No. 100244 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100244 OF 2016 (397)
BETWEEN:
ARVIND
S/O. SADASHIVAYYA SIDDATAGIMATH,
AGE: 44 YEARS, OCC: SERVICE,
R/O: SALIMATH BUILDING, H.NO.28,
NEAR MASJID, SIDDESHWAR PARK,
VIDYANAGAR, HUBBALLI,
DISTRICT: DHARWAD.
...PETITIONER
(BY SRI B. G. INDI, ADVOCATE FOR SRI K. L. PATIL)
AND:
VASANTA
W/O. FAKKIRAYYA HIREMATH,
AGE: 47 YEARS, OCC: BUSINESS,
R/O: SIDDESHWARMATH,
Digitally signed NEAR KUMARVYASA NAGAR,
by SUJATA HUBBALLI, DISTRICT: DHARWAD.
SUBHASH ...RESPONDENT
PAMMAR (BY SRI G. A. BHAT, ADVOCATE)
Date:
2024.02.14 THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397
13:20:28 AND 401 OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND
+0530 ALLOW THIS CRIMINAL REVISION PETITION AND SET ASIDE THE
JUDGMENT AND ORDER DATED 30/8/2016 PASSED IN CRIMINAL
APPEAL NO. 195/2013 ON THE FILE OF I ADDL. DISTRICT AND
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI AND SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 19/12/2013 PASSED IN CC NO. 844/2007 ON
THE FILE OF JMFC-II, HUBBALLI FOR THE O/P/U/SEC. 138 OF
NEGOTIABLE INSTRUMENTS ACT.
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CRL.RP No. 100244 of 2016
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. This criminal 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 the Civil Judge and JMFC-
II, Hubballi in C.C.No.844/2007 dated 19.12.2013 and the
judgment and order passed in Crl.Appeal No.195/2013
dated 30.08.2016 by the Court of the I Addl. District and
Sessions Judge, Dharwad sitting at Hubballi.
2. Heard the learned counsel for the parties.
3. Respondent herein had initiated proceedings
against the petitioner for the offence punishable under
Section 138 of the Negotiable Instrument Act, 1881 (for
short, 'the NI Act'), before the trial Court. In the said
proceedings, the petitioner after entering appearance
before the trial Court, had claimed to be tried. In support
of her case, the complainant had examined herself as PW1
and another witness was examined as PW2. The
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complainant also got marked 11 documents as Exs.P1 to
P11. On behalf of the petitioner, he examined himself as
DW1 and 2 other witnesses were examined as DW2 and
DW3. However, no documents were marked in support of
defence. The trial Court after hearing the arguments
addressed on both sides, passed the impurgned judgment
and order in C.C.844/2007 and convicted the petitioner for
the offence punishable under Section 138 of the NI Act
and sentenced him to undergo simple imprisonment for a
period of 6 months and also pay fine of Rs.1,05,000/- and
in default to undergo simple imprisonment for a period of
3 months. The said judgment and order of conviction
passed by the trial Court was confirmed in Crl.Appeal
No.195/2013 by the Court of the I Addl.District and
Sessions Judge, Dharwad sitting at Hubbali by order dated
30.08.2016. It is under these circumstances, the
petitioner/accused is before this Court.
4. Learned counsel for the petitioner having
reiterated the grounds urged in the petition submits that
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the Courts below have not appreciated oral and
documentary evidence available on record and have erred
in convicting the petitioner.
5. Per contra, learned counsel for the respondent
has argued in support of the impugned judgment and
order passed by the Courts below and prays to dismiss the
petition.
6. It is the case of the complainant that the
petitioner herein had borrowed hand loan of Rs.63,000/-
from her and towards repayment of the said amount, he
had issued a cheque bearing No.595418 dated 18.07.2006
drawn on Syndicate Bank, Vidyanagar branch, Hubballi in
her favour. The said cheque on presentation for realisation
by the complaint was dishonored by the drawee bank with
banker's shara 'refer to drawer'. Thereafter the
complainant issued a legal notice in compliance of the
statutory requirements as provided under the provisions of
the NI Act and since the petitioner had failed to pay the
amount covered under the cheque, had initiated
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proceedings under Section 138 of the NI Act before the
trial Court. To substantiate her case, complainant had
examined herself as PW1 and another witness was also
examined as PW2. She also has produced 11 documents
as Exs.P1 to P11.
7. The petitioner has not denied the cheque in
question nor has he denied the signature found in the
cheque. The only defence before the trial Court was that
his sister Renuka had availed loan of Rs.6,000/- in the
year 2005 from the complainant and for that he had given
a blank cheque as security and the said cheque was
misused by the complainant. Since the petitioner had not
disputed the cheque in question and also the signature
found in the cheque, a presumption under Section 139 of
the NI Act arises against him. Unless the petitioner rebuts
the said presumption by putting forward a probable
defence, he is liable to be convicted for the offence
punishable under Section 138 of the NI Act.
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8. The petitioner has not produced any
documentary evidence before the trial Court to
substantiate his defence that his sister Renuka had availed
loan of Rs.6000/- from the complainant and it is towards
the security for the said loan, he had issued a blank
cheque in favour of the complainant. In fact DW3 who
was examined on behalf of the defence has deposed
before the trial Court that petitioner's sister Renuka had
borrowed loan of Rs.6000/- from the complainant and
towards security, petitioner had issued a blank cheque.
DW2 has deposed before the Court that he had borrowed a
sum of Rs.6000/- from the complainant and the cheque in
question was given by the petitioner as a security for the
said loan transaction. Therefore, the evidence of DW2 and
DW3 are contradictory. The trial Court having appreciated
that the petitioner had failed to put up a probable defence
and rebut the presumption available against him, had
rightly convicted the petitioner for the offence punishable
under Section 138 of the NI Act.
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9. The Appellate Court having re-appreciated the
oral and documentary evidence available on record, has
confirmed the judgment and order of conviction passed by
the trial Court. I do not find any illegality or irregularity in
the judgment and order of conviction passed by the Courts
below under section 138 of the NI Act.
10. However, insofar as the sentence passed
against the petitioner is concerned, it is not in dispute that
the petitioner has deposited the entire fine amount of
Rs.1,05,000/- during the pendency of the proceedings. It
is stated that the petitioner has deposited a sum of
Rs.85,000/- before the Registry of this Court and a sum of
Rs.20,750/- before the trial Court. Under these
circumstances, I am of the view that the order of sentence
passed by the Courts below against the petitioner needs to
be modified. Accordingly, the following:
ORDER
Criminal revision petition is partly allowed.
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The judgment and order of conviction passed by the
Courts below for the offence punishable under Section 138
of the NI Act is confirmed. The order of sentence passed
by the Court of the Civil Judge and JMFC-II, Hubballi in
C.C.No.844/2007 dated 19.12.2013, which is confirmed in
Crl.Appeal No.195/2013 dated 30.08.2016 by the Court of
the I Addl. District and Sessions Judge, Dharwad sitting at
Hubballi is modified.
The petitioner is sentenced to pay fine of
Rs.1,05,000/-. The respondent/complainant is permitted
to withdraw the amount deposited by the petitioner before
this Court as well as before the trial Court subject to she
producing document in support of her identity.
Sd/-
JUDGE
KGK
