Karnataka High Court
Sagar Basha Gavali vs Shreenika Chitfunds Pvt. Ltd on 21 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.RP No. 100014 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100014 OF 2022 (397)
BETWEEN:
SAGAR BASHA GAVALI
AGE: 37 YEARS, OCC: PVT. SERVICE,
R/O 118, MANGALWAR PETH,
TILAKWADI, TQ & DIST: BELAGAVI.
...PETITIONER
(BY SRI YASH R. NADKARNI, FOR
SRI. VITHAL S. TELI, ADVOCATE)
AND:
SHREENIKA CHITFUNDS PVT. LTD.,
REPRESENTED BY ITS
RECOVERY OFFICER ,
PARVEZ SIKANDAR CHIKKODI,
AGE: 40 YEARS, OCC: SERVICE,
R/O VEERBHADRA NAGAR,
TQ AND DIST: BELAGAVI.
ANNAPURNA
CHINNAPPA
DANDAGAL ...RESPONDENT
(RESPONDENT SERVED)
Digitally signed by
ANNAPURNA
CHINNAPPA
DANDAGAL THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397(1)
Date: 2024.02.23
10:25:31 +0530 R/W SEC.401 OF CR.P.C. SEEKING SET ASIDE THE JUDGMENT
DATED 31.08.2021 IN CRIMINAL APPEAL NO.346/2019 BY THE VIII
ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI WHEREIN
CONFIRMING THE JUDGMENT DATED 04.07.2019 PASSED BY THE
VIII- JMFC, BELAGAVI IN CC NO.807/2017, IN SO FAR AS
CONVICTION AND MODIFYING WITH REGARD TO DEFAULT
SENTENCE AND IMPOSING OF FINCE AMOUNT, FOR OFFENCE UNDER
SECTION 138 OF NI ACT AND THEREBY ACQUIT THE
PETITIONERS/ACCUSED AND ANY OTHER RELIEFS.
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CRL.RP No. 100014 of 2022
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. This criminal revision petition under Section
397(1) 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 VIII-JMFC, Belagavi, in C.C.No.807/2017
dated 04.07.2019 and the judgment and order dated
31.08.2021 passed by the VIII Additional District and
Sessions Judge, Belagavi, in Crl.A.No.346/2019.
2. Heard the learned counsel for the parties.
3. Respondent who is served in the matter has
remained unrepresented before this Court.
4. Respondent 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
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case, the petitioner after entering appearance before the
Trial Court had claimed to be tried. The
respondent/complainant in order to prove its case had
examined one witness as P.W.1 and he also got marked 06
documents as Exs.P1 to P6. On behalf of the defence,
petitioner had examined himself as DW.1 and also got
marked 04 documents as Exs.D.1 to D.4. The Trial Court
after hearing the arguments addressed on both side vide
the impugned judgment and order dated 04.07.2019 had
convicted the petitioner for the offence punishable under
Section 138 of the N.I.Act and sentenced him to pay fine
of Rs.85,000/- and in default to undergo simple
imprisonment for a period of one year. The said judgment
and order of conviction passed by the Trial Court was
confirmed in Criminal Appeal No.346/2019 before the
Court of VIII Additional District and Sessions Judge,
Belagavi, on 31.08.2021. However, the Appellate Court
modified the sentence and reduced the fine amount to
Rs.75,000/- and default sentence was reduced to six
months imprisonment. Being aggrieved by the said
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judgment and order passed by the Courts below, petitioner
is before this Court.
5. Learned counsel for the petitioner submits that
the Courts below have erred in convicting the petitioner
for the alleged offence. He submits that oral and
documentary evidence available on record have not been
properly appreciated by the Courts below. Accordingly, he
prays to allow the petition.
6. Perusal of the material available on record
would go to show that petitioner was a subscriber to the
chit which was conducted by the respondent/company.
After the petitioner had successfully participated in the
auction for prize money, he had failed to contribute the
subsequent chit value contributions, and therefore,
demand was allegedly made by the respondent for
payment of dues. Towards payment of dues, petitioner
allegedly had issued the cheque in question to the
respondent for a sum of Rs.65,000/- and on presentation
of the same for realization, the said cheque was
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dishonoured by the drawee bank with a shara 'insufficient
funds'.
7. The respondent had filed a complaint thereafter
against the petitioner after complying all the requirements
of the provisions of the Negotiable Instruments Act. In the
said proceedings, the petitioner has not disputed the
signature found in the cheque. He also has not disputed
that the cheque in question was issued on the account
maintained by him in Cosmos Bank, Tilakwadi, Belagavi
District. He also has not disputed the transaction with the
respondent-Bank and he also has not disputed that he was
the subscriber to the chit that was conducted by the
respondent. Therefore, a presumption under Section 139
of the N.I.Act arises against the petitioner. Unless the said
presumption under Section 139 of the N.I.Act is rebutted
successfully by the accused by raising a probable defence,
the accused would be liable to be punished for the offence
under Section 138 of the N.I.Act.
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8. In the case on hand, the petitioner had failed to
rebut the presumption that arose against him by raising a
probable defence. Therefore, I am of the view that the
Trial Court as well as the Appellate Court have rightly
convicted him for the offence punishable under Section
138 of the N.I.Act. Even the sentence imposed against the
petitioner is just and proper and needs no interference.
Therefore, I do not find any good ground to interfere with
the well reasoned judgment and order of conviction and
sentence passed by the courts below. Revision petition,
therefore, stands dismissed.
Sd/-
JUDGE
AC/KK
CT:GSM
