Karnataka High Court
Maruthi S/O Manikappa Khasempur vs Pragati Krishna Grameen Bank on 12 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2024:KHC-K:1461
CRL.RP No.200106 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.200106 OF 2021
(397)
BETWEEN:
MARUTHI
S/O MANIKAPPA KHASEMPUR
AGE: 54 YEARS,
OCC: CHAIRMAN AND MANAGING DIRECTOR,
M/S. BHAVANI KHANDASARI SUGARS LIMITED
BAROOR, R/O KHASEMPUR,
TQ. AND DIST. BIDAR-585403.
...PETITIONER
(BY SRI SHIVAPUTRA S.UDABALKAR, ADVOCATE)
Digitally signed
by SHILPA R
TENIHALLI AND:
Location: HIGH
COURT OF PRAGATI KRISHNA GRAMEEN BANK
KARNATAKA MAIN BRANCH, BIDAR,
REPRESENTED BY ITS MANAGER,
BIDAR-585401.
...RESPONDENT
(BY SRI SHESHADRI JAISHANKAR M., ADVOCATE)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C.
PRAYING TO ALLOW THE PETITION AND SET ASIDE THE
JUDGMENT DATED 02.12.2021 OF ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BIDAR PASSED IN CRL.A NO.79/2018,
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NC: 2024:KHC-K:1461
CRL.RP No.200106 of 2021
WHEREBY IT HAS CONFIRMED THE JUDGMENT OF CONVICTION
OF THE PETITIONER PASSED ON 03.09.2018 BY 2ND
ADDITIONAL CIVIL JUDGE AND JMFC-II, BIDAR IN
C.C.NO.1713/2013 FOR THE OFFENCES PUNISHABLE UNDER
SECTION 138 OF N.I. ACT. AND KINDLY ACQUIT THE
PETITIONER CONSEQUENTLY AND ANY OTHER ORDER THIS
COURT MAY DEEMS NECESSARY IN CONSIDERATION OF THE
FACTS AND CIRCUMSTANCES OF THE PRESENT CASE.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed under Section 397 read
with Section 401 of Cr.P.C. challenging the judgment of
conviction and order of sentence passed by the II
Additional Civil Judge and JMFC-II, Bidar in
C.C.No.1713/2013 convicting the accused under Section
138 of the Negotiable Instruments Act (for short, 'the NI
Act') and confirmed in the appeal by the Additional
Sessions Judge, Bidar in Criminal Appeal No.79/2018 vide
judgment dated 02.12.2021.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Trial Court.
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3. The brief factual matrix leading to the case are
as under:
The complainant is the Banking Institution and
dealing in advancing of loan also. That the accused is the
Chairman and Managing Director of the Factory. The
complainant/Bank sanctioned loan of Rs.21,95,100/- on
24.02.2012 in favour of the petitioner/accused which was
required to be paid in three yearly installments of
Rs.7,31,700/- plus interest at the rate of 15% per annum.
The accused towards first installment, issued a cheque
dated 31.07.2013 towards repayment of 1st installment of
loan with interest amounting to Rs.10,02,000/- and when
the said cheque was presented, it was bounced for
insufficient of funds. As per the request, the cheque was
re-presented and again it was bounced. Hence, a notice
was issued and in spite of service of notice, there was no
response of the accused and hence, a complaint came to
be lodged.
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4. The learned Magistrate after taking cognizance
has issued the process and the accused has appeared
through his counsel and was enlarged on bail. The plea of
the accused under Section 138 of the NI Act was framed
and the accused pleaded not guilty and claimed to be
tried.
5. The officer of the complainant was examined as
P.W.1 and Exs.P.1 to P.9 were marked. After conclusion of
the evidence of the complainant, the statement of the
accused under Section 313 of Cr.P.C. is recorded to enable
the accused to explain the incriminating evidence
appearing against him in the case of the prosecution. The
case of the accused is of total denial and his simple
defence is that the cheque is issued towards security and
same has been misused. Then, the accused got examined
himself as D.W.1, but did not produce any documentary
evidence in support of his defence.
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6. The learned Magistrate after hearing the
arguments and after appreciating the oral and
documentary evidence, convicted the accused for the
offence under Section 138 of the NI Act and imposed fine
of Rs.12,02,000/- with default sentence.
7. Being aggrieved by this judgment of conviction
and order of sentence, the accused approached the
learned Additional Sessions Judge, Bidar in Criminal
Appeal No.79/2018. The learned Sessions Judge after
appreciating the oral and documentary evidence,
dismissed the appeal by confirming judgment of conviction
and order of sentence passed by the learned Magistrate.
Against these concurrent findings, the petitioner is before
this Court by way of this revision.
8. Heard the arguments advanced by the learned
counsel for the petitioner. The learned counsel for the
respondent did not appear. Perused the records.
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9. The learned counsel for the petitioner would
contend that the cheque was issued in respect of different
transaction and the same was misused. Hence, he would
contend that the presumption under Section 139 of the NI
Act stands rebutted and hence, he would contend that
both the Courts below have failed to appreciate these
aspects in proper perspective and as such, he sought for
allowing the revision by setting the impugned judgment
passed by both the Courts below.
10. Having heard the arguments and perusing the
records, no the following point would arise for my
consideration?
"Whether the judgment of conviction and
order of sentence passed by the learned II
Additional Civil Judge and JMCF-II, Bidar and
confirmed by the Additional Sessions Judge,
Bidar in Criminal Appeal No.79/2018 vide
judgment dated 02.12.2021 are perverse,
arbitrary and erroneous so as to call for any
interference by this Court?"
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11. It is the specific contention of the complainant
that the complainant being a financial bank has advanced
loan of Rs.21,95,100/- to the accused and he was required
to repay the loan in three yearly installments of
Rs.7,31,700/- with interest at the rate of 15% and first
installment to be commenced from 24.03.2012. It is
further asserted that towards first installment, the accused
has issued a cheque dated 31.07.2013 for Rs.10,02,000/-
under Ex.P.1 which is dishonoured for insufficient of funds.
Hence, this complaint.
12. The rival contentions if are taken note of, it is
evident that the cheque under Ex.P.1 belongs to the
accused and it bears his signature which are undisputed.
Further, the defence of the accused is that the cheque is
issued as a security, but he has not produced any material
documents to substantiate the same. Even the appellate
Court has considered that the cheque issued towards
security also falls under the provisions of Section 138 of
the NI Act by relying on a decision in 2019 (3) DCR 731
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(Nagaraj H Vs. Shivaprakash Rao). Both the learned
Magistrate and the learned Sessions Judge have
appreciated the oral and documentary evidence in proper
prospective. Admittedly, the cheque and signature have
been admitted by the accused and the presumption under
Section 139 of the NI Act is in favour of the complainant.
It is for the accused to rebut the presumption on the basis
of the preponderance of probability. But the accused has
simply lead his evidence asserting that the cheque was
issued as a security, but he has not produced any
documents to substantiate the same. Even after service of
legal notice, the accused has not even bothered to reply to
the legal notice and considering these facts and
circumstances, it is evident that the presumption under
Section 139 of the NI Act available in favour of the
complainant, was not at all rebutted. Both the Courts have
appreciated the oral and documentary evidence in
perspective and have rightly convicted the accused.
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13. Further it is also important to note here that
though the cheque amount was Rs.10,02,000/-, the fine
was imposed only to the extent of 12,02,000/- i.e., only
Rs.2,00,000/- was added towards cheque amount by way
of additional fine. The Trial Court was competent to
impose sentence of imprisonment for a period of 2 years
or fine double the cheque amount or both. The
transaction is of the year 2012, but even then, the Trial
Court has imposed a minimum sentence of fine which does
not call for any interference. Under these circumstances,
the judgment of conviction and order of sentence cannot
be said to be suffering from any perversity so as to call for
any interference. Hence, the point under Consideration is
answered in the Negative. As such, the revision being
devoid of merits, does not survive for consideration and
accordingly, stands dismissed.
Sd/-
JUDGE
RSP
