Karnataka High Court
Gurupadapa S/O Basavantappa Karlatti vs Shekarayya S/O Shivalingayya ... on 13 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2024:KHC-D:3519
CRL.RP No. 100295 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100295 OF 2022 (397-)
BETWEEN:
GURUPADAPA S/O BASAVANTAPPA KARLATTI,
AGED ABOUT: 53 YEARS, OCC. ADVOCATE,
R/O. C/O. SHIVARUDRAPPA S. KONDAGOOLI,
SIDDESHWAR NAGAR, UNKAL CROSS,
UNKAL, HUBBALLI 580031.
...PETITIONER
(BY SRI. BASAVARAJ S SATANNAVAR, ADVOCATE)
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI AND:
Date: 2024.02.15
12:00:50 +0530
1. SHEKARAYYA S/O SHIVALINGAYYA
VIRAKTAMATH, AGED ABOUT 63 YEARS,
OCCU: BUSINESS,
R/O PRIYADARSHINI COLONY,
GOKUL ROAD, HUBBALLI 580030.
2. THE STATE OF KARNATAKA
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA.
...RESPONDENTS
(BY SRI. GOURISHANKAR, MOT, FOR R1;
SRI. T.PMALIPATIL, AGA FOR R2)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C., SEEKING TO BE ALLOWED BY SETTING ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED
01.07.2022 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI, IN CRL.APPEAL
NO.5020/2021, WHICH CONFIRMING THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE DATED 21.09.2021 PASSED BY THE
COURT OF III JMFC, AT HUBBALLI IN C.C.NO.209/2019, IN RESPECT
-2-
NC: 2024:KHC-D:3519
CRL.RP No. 100295 of 2022
OF OFFENCE PUNISHABLE U/S 138 OF N.I. ACT AND THE
PETITIONER MAY KINDLY BE ACQUITTED.
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 by the accused with a prayer to
set aside the judgment and order of conviction and
sentence passed by the Court of JMFC III court, Hubballi,
in C.C.No.209/2019 dated 21.09.2021 and judgment and
order dated 01.07.2022 passed by the Court of the I
Additional district and Sessions Judge, Dharwad, sitting at
Hubballi, in Criminal Appeal No.5020/2021.
2. Heard the learned counsel for the parties.
3. Respondent herein had initiated proceedings
before the trial Court against the petitioner herein for the
offence punishable under Section 138 of the Negotiable
Instrument Act, 1881 (for short, 'the N.I.Act'). In the said
case, the petitioner, who is an advocate had appeared
NC: 2024:KHC-D:3519
before the trial Court and pleaded not guilty. In support of
his case, the respondent had examined himself as P.W.1
and he got marked 07 documents as Exs.P1 to P7. On
behalf of the defence, no evidence was led nor any
document was marked. The trial Court after hearing
arguments addressed on both sides had convicted the
petitioner for the offence punishable under Section 138 of
the N.I.Act and sentenced him to pay fine of Rs.3,00,000/-
and in default to undergo simple imprisonment for a period
of six months. The said judgment and order of conviction
and sentence passed by the trial Court was confirmed in
Criminal Appeal No.5020/2021 by the Court of the I
Additional District and Sessions Judge, Dharwad, sitting at
Hubballi, by the judgment and order dated 01.07.2021.
Therefore, petitioner is before this Court.
4. Learned counsel for the petitioner submits that
the trial Court had not granted opportunity to the
petitioner to lead defence evidence. He submits that
application has been now filed seeking permission of this
Court to lead additional evidence before the trial Court. He
NC: 2024:KHC-D:3519
submits that the cheque in question was not issued by the
petitioner to the respondent towards discharge of legally
recoverable debt. Accordingly, prays to allow the petition.
5. Per contra, learned counsel appearing for the
respondent submits that the respondent had advanced the
loan to the petitioner through the bank transactions and
therefore, the transaction is proved. The petitioner has not
disputed the signature found in the cheque nor had he
disputed that the cheque in question was drawn on the
bank account maintained by the petitioner with his banker.
Therefore, the Courts below have rightly convicted the
petitioner for the offence punishable under Section 138 of
the N.I.Act. Accordingly, prays to dismiss the petition.
6. It is the specific case of the
respondent/complainant that the petitioner had borrowed
a sum of Rs.2,50,000/- from him towards his financial
needs. The material on record would go to show that the
respondent had paid the said sum of Rs.2,50,000/- to the
petitioner herein as hand loan though cheque dated
NC: 2024:KHC-D:3519
07.04.2017. Therefore, the complainant has proved the
transaction with the petitioner.
7. The complaint under Section 200 of the Cr.P.C
was filed in the present case by the
respondent/complainant, after complying the statutory
requirements as provided under the provisions of the
N.I.Act. The petitioner has not disputed the signature
found in the cheque nor has he disputed that the cheque
was drawn on the account maintained by him with his
banker. Therefore, a presumption arose as against him
under Section 139 N.I.Act. Unless the petitioner rebut the
said presumption by raising a probable defence, he is
liable to be convicted for the offence punishable under
Section 138 of the N.I.Act.
8. Before the trial Court the petitioner had taken
a defence that the cheque in question which was issued by
him to his friend Dundur was misused by the respondent.
However, to prove such a defence, he had not placed any
material before the trial Court. The respondent had
NC: 2024:KHC-D:3519
produced sufficient material before trial Court to prove the
alleged transactions. During the course of cross examining
PW1/complainant, petitioner herein has virtually admitted
his transaction with the respondent/complainant.
However, he has not produced any material before the
trial Court to show that he had repaid the amount
borrowed from respondent and he had discharged his
liability.
9. Under the circumstance, the trial Court as well
as the appellate Court was fully justified in convicting the
petitioner for the alleged offence. The sentence imposed
by the trial Court which is confirmed by the appellate
Court is also just and proper and needs no interference.
10. The order sheet maintained by the trial Court
would go to show that though sufficient opportunity was
given to the petitioner by the trial Court to lead defence
evidence, the petitioner who is a practicing advocate had
not chosen to lead defence evidence. Application is now
filed seeking permission of this Court to lead defence
NC: 2024:KHC-D:3519
evidence. Except stating that he intends to lead additional
evidence, petitioner has not produced any material even
before this Court which would prima facie establish the
defence taken by the petitioner before the trial Court.
11. Under the circumstances, I am of the opinion
that application under Section 391 of the Cr.P.C is now
filed by the petitioner only with an intention to drag the
litigation. Therefore, I do not see any good grounds to
interfere with the impugned judgment and order of
conviction and sentence passed by the Courts below.
Accordingly, petition is dismissed. Consequently,
I.A.No.1/2024 is also dismissed.
12. The amount, if any deposited by the petitioner
is permitted to be withdrawn by the respondent.
Sd/-
JUDGE
AC
