Karnataka High Court
Mohammad Shabbir Balamsab Shaikh vs Sri Raghavendra S/O Babu Badaskar on 13 February, 2024
Author: S. Vishwajith Shetty
Bench: S. Vishwajith Shetty
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CRL.RP No. 100169 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. 100169 OF 2022 (397)
BETWEEN:
MOHAMMAD SHABBIR BALAMSAB SHEIKH,
AGE: 48 YEARS, OCC: BUSINESS,
R/O H.NO. 24, HUDCO COLONY,
ASHOK NAGAR, BELAGAVI-590001
...PETITIONER
(BY SRI. VIDYASHANKAR G. DALWAI, ADVOCATE)
AND:
SRI RAGHAVENDRA S/O. BABU BADASKAR,
AGE: 32 YEARS, OCC: BUSINESS,
R/O KASAMALGI VILLAGE,
TQ: KHANAPUR, DIST: BELAGAVI.
...RESPONDENT
Digitally (BY SRI SOURABH HEGDE, ADVOCATE)
signed by
SUJATA
SUBHASH THIS CRIMINAL REVISION PETITION IS FILED U/SEC.
PAMMAR 397 R/W 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS
Date: AND SET-ASIDE THE JUDGMENT AND ORDER OF CONVICTION
2024.02.15 DATED 26.03.2021 PASSED BY THE VII J.M.F.C. BELAGAVI IN
15:39:10 C.C.NO.377/2018 AND JUDGMENT AND ORDER DATED
+0530 14.02.2022 PASSED BY THE VI ADDL. DISTRICT AND
SESSIONS JUDGE, BELAGAVI IN CRIMINAL APPEAL
NO.118/2021 AND ACQUIT THE PETITIONER FOR THE CHARGE
U/SEC. 138 OF THE N.I. ACT, IN THE INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 100169 of 2022
ORDER
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 VII-JMFC, Belagavi in Criminal Case
No.377/2018 dated 26.03.2021 and the Judgment and
order dated 14.02.2022 passed in Criminal Appeal
No.118/2021 by the Court of VI Additional District and
Sessions Judge, Belagavi.
2. Heard the learned counsel for the parties.
3. The respondent herein had initiated proceedings
against the petitioner before the Trial Court for the offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (for short, 'the NI Act'). The
petitioner who was served in the said proceedings had
appeared before the Trial Court and claimed to be tried. In
order to substantiate his case, the respondent/complainant
had examined himself before the Trial Court as P.W.1 and
had got marked four documents as Ex.P.1 to 4. In support
of defence, the petitioner/accused had examined himself
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as DW.1. However, no documents were marked in his
support. After hearing the arguments, the Trial Court vide
its Judgment and order dated 26.03.2021 convicted the
petitioner for the offence punishable under Section 138 of
the N.I. Act and sentenced him to pay fine of
Rs.1,48,000/- 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.118/2021 by the Court of VI Additional District and
Sessions Judge, Belagavi by order dated 14.02.2022.
Therefore, the petitioner/accused is before this Court.
4. Learned counsel for the petitioner having
reiterated the grounds urged in the petition submits that
the respondent has failed to prove that the cheque in
question was issued towards legally recoverable debt.
5. Per Contra, the learned counsel for the respondent
argued in support of the impugned Judgment and order of
conviction and submits that the presumption that arose as
against the petitioner was not successfully rebutted by the
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petitioner and therefore, Courts below have rightly
convicted him.
6. It is the specific case of the respondent that the
petitioner had borrowed a sum of Rs.1,30,000/- from him
and towards repayment of the said amount, the cheque in
question was issued in his favour for a sum of
Rs.1,30,000/-. The said cheque was presented for
realization and the same was doshonoured with banker
shara 'funds insufficient'. The respondent/complainant
after complying the statutory requirements of the NI Act,
had initiated proceedings against the petitioner/accused
for the offence punishable under Section 138 of the
N.I.Act. The petitioner has not taken any specific defence
before the trial Court. The material on record would go to
show that the petitioner had taken multiple defence and all
the defence were inconsistent.
7. The petitioner has not disputed the signature
found on the cheque nor has he disputed that the cheque
in question was drawn on the Bank account maintained by
him with his banker. The complaint has been filed by the
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respondent before the Trial Court for the offence
punishable under Section 138 of the N.I.Act after
complying the statutory requirement as provided under
the N.I.Act. Therefore, a presumption under Section 139
of the N.I.Act had arisen against the petitioner, which he
was required to rebut by raising probable defence.
Though, the petitioner has stated that the cheque in
question was obtained by the respondent from another
person and same was misused by him, he has failed to
prove the said defence by producing necessary material
before the Trial Court.
8. The petitioner also had stated that he had availed
only a sum of Rs.50,000/- from the respondent and not an
amount of Rs.1,30,000/- as contended by the respondent.
However, the petitioner has failed to prove this contention
and he has not produced any material before the Trial
Court to prove that he had discharged the loan of
Rs.50,000/-, which he had admittedly borrowed from the
respondent. Therefore, the presumption that arose against
the petitioner stood un-rebutted and eventually, the
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petitioner was liable to be punished under Section 138 of
the N.I. ACT. Under the circumstances, I am of the opinion
that the Trial Court as well as the appellate Court are fully
justified in convicting the petitioner for the offence
punishable under Section 138 of the N.I.Act. Even, the
sentence imposed by the Trial Court which is confirmed by
the appellate Court is just and reasonable. Under the
circumstances, I do not find any good ground to interfere
with the Judgment and order of conviction and sentence
passed by the courts below. Accordingly, the revision
petition is dismissed.
9. The amount deposited by the petitioner/accused
either before the Trial Court or before the appellate Court
is permitted to be withdrawn by the respondent/
complainant.
Sd/-
JUDGE
CKK
