Karnataka High Court
Ravindra G Allapur vs Sri. Baba Patel on 5 January, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 200072 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.200072 OF 2018
(397)
BETWEEN:
RAVINDRA G ALLAPUR
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O H.NO.11-1814/19,
VIDYA NAGAR,
KALABURAGI.
...PETITIONER
(BY SRI CHAITANYAKUMAR CHANDRIKI, ADVOCATE)
AND:
Digitally signed
by SHILPA R
TENIHALLI SRI BABA PATEL
Location: HIGH S/O MAHEBOOB PATEL MALGATTI,
COURT OF AGE: 47 YEARS, OCC: BUSINESS,
KARNATAKA
R/O PLOT NO.67, KUSNOOR ROAD,
KALABURAGI.
...RESPONDENT
(BY SRI VIKRAM VIJAYKUMAR, ADVOCATE)
THIS CRL.RP IS FILED U/S. 397 OF CR.P.C PRAYING TO,
SET ASIDE THE JUDGMENT DATED:29.10.2018 PASSED BY THE
LEARNED I ADDITIONAL DISTRICT & SESSIONS JUDGE AT
KALABURAGI IN CRIMINAL APPEAL NO.43/2016
CONSEQUENTLY BE PLEASED TO CONFIRM THE JUDGMENT
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CRL.RP No. 200072 of 2018
DATED:29.03.2016 PASSED BY THE III ADDITIONAL JMFC
COURT AT KALABURAGI AND CONVICT THE RESPONDENT
FROM THE ALLEGED OFFENCES.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed against the judgment of
acquittal dated 29.10.2018 passed by the I Additional
District and Sessions Judge, Kalaburagi in Criminal Appeal
No.43/2016, whereby the learned Sessions Judge has set
aside the judgment of conviction and order of sentence
against the respondent herein in C.C.No.437/2013 on the
file of III Additional Civil Judge and JMFC, Kalaburagi
dated 29.03.2016 for the offence punishable under Section
138 of the Negotiable Instruments Act (for short, 'the NI
Act') by acquitting him.
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:
That the complainant and the accused are close
friends and the accused due to his family necessary
approached the complainant and requested him to
advance hand loan of Rs.3,000.000/-. Considering the
need of the accused, the complainant has advanced
Rs.3,00,000/- to the accused on 30.08.2012 and the
accused promised to repay the same after three months.
After three months, when the complainant approached the
accused, he has issued a cheque dated 30.11.2012 and
when the complainant presented such cheque, it was dis-
honoured for insufficient of funds. Thereafter, the
complainant got issued a legal notice to the accused and in
spite of service of legal notice, the accused has not
replied. Hence, the complainant has lodged a complaint
against the accused for the offence punishable under
Section 138 of the NI Act.
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4. The learned Magistrate after recording the
sworn statement and after appreciating the documents has
taken cognizance of the offence and issued process
against the accused. The accused appeared through his
counsel and was enlarged on bail.
5. The plea under Section 138 of the NI Act was
framed against the accused and same was read over and
explained to the accused. He pleaded not guilty.
6. The complainant was got examined himself as
P.W.1 and one witness was examined on his behalf as
P.W.2. Further, he placed reliance on five documents
marked at Exs.P.1 to P.5. After conclusion of the evidence
of the complainant, the statement of the accused under
Section 313 of Cr.P.C. is recorded to enable him to explain
the incriminating evidence appearing against him in the
case of the prosecution. The case of the accused is of
total denial.
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7. The accused also got examined himself as
D.W.1 and one witness was examined on behalf of the
accused as D.W.2. However, he did not produce any
material evidence in support of his claim. Ex.P.6 is
marked on behalf of the complainant during the course of
cross-examination of D.W.1 which is the salary certificate
of the accused.
8. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate has convicted the accused for the
offence under Section 138 of NI Act and imposed fine of
Rs.3,15,000/- with default sentence.
9. Being aggrieved by this judgment of conviction,
the accused has approached the learned I Additional
District and Sessions Judge, Kalaburagi in Criminal Appeal
No.43/2016. The learned Sessions Judge after
appreciating the oral and documentary evidence by
impugned judgment dated 29.10.2018 allowed the appeal
filed by the accused under Section 374(3) of Cr.P.C. and
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set aside the judgment of conviction passed by the learned
III Additional Civil Judge and JMFC, Kalaburagi for the
offence punishable under Section 138 of NI Act by
acquitting the accused.
10. Being aggrieved by these divergent views, the
complainant is before this Court by way of this revision
petition.
11. Heard the learned counsel for the revision
petitioner. In spite of granting sufficient opportunities, the
learned counsel for the respondent did not appear so as to
advance the arguments. Perused the records.
12. The learned counsel for the revision petitioner
would contend that the cheque and the signature have
been admitted as that of the accused and no reply was
given to the statutory notice and hence, there is a
presumption under Section 138 of the NI Act in favour of
the complainant. He would contend that the accused has
failed to repay the amount and the said presumption is
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required to be rebutted on the basis of preponderance of
probability which is not done and the learned Magistrate
has rightly convicted the accused, but the appellate Court
has failed to appreciate any of these aspects and in a
mechanical way on the ground of financial status of the
accused, reversed the finding which has resulted in
miscarriage of justice. Hence, he would seek for allowing
the revision petition by convicting the accused.
13. Having heard the arguments and perusing
records, now the following point would arise for my
consideration:
"Whether the judgment of acquittal passed by
the learned Sessions Judge is perverse,
arbitrary or erroneous so as to call for any
interference by this Court?"
14. The revision petition is filed under Section 397
of Cr.P.C. There are two divergent views, as the Trial
Court has convicted the accused while the learned
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Sessions Judge has acquitted him in the appeal. The
revisional powers of the High Court are defined under
Section 401 of Cr.P.C. Under Section 401(3) of Cr.P.C.,
the High Court has no power to convert a finding of
acquittal into one of conviction. Hence, as per the statue in
the revision judgment, an acquittal order cannot be
converted into conviction. Since there are divergent
views, the petitioner/complainant ought to have filed an
appeal, but he has not done so.
15. Even if on merits, the case of the petitioner is
considered, it lacks bonafides. According to the
complainant, he advanced loan of Rs.3,00,000/- to the
accused on 30.08.2012. However, Ex.P.3 notice issued
does not specify as to when the loan was advanced and
details were not referred therein. The cheque dated
03.12.2012 was returned for insufficient of funds and
hence, the statutory notice came to be issued. This notice
does not specify details of the transactions etc., and
hence, non-reply to the notice does not have any
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relevancy, as the notice does not contain material
particulars as per mandate of law.
16. It is further assertion of the complainant that
he advanced loan of Rs.3,00,000/-, but his cross-
examination reveals that he had no financial capacity to
advance such loan. In the cross-examination, he claimed
that he has no such huge amount and he took
Rs.1,50,000/- from P.W.2 and he had Rs.1,50,000/- and
together he handed over the same to the accused. This
fact was never pleaded in the complaint nor in the
statutory notice issued as per Ex.P.3. Further, the cross-
examination reveals that the complainant is a handicapped
person and he is working in a Xerox shop on monthly
salary of Rs.3,500/-. If the complainant is drawing a
monthly salary of Rs.3,500/-, it is hard to accept that he
could mobilize a huge amount that too in cash to the
extent of Rs.1,50,000/- so as to advance the loan to the
accused.
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17. All along it is asserted that the accused is a
good friend of the complainant, but cross-examination of
P.W.1 reveals that the complainant and the accused are
not good friends, but they know each other. Under such
circumstances, merely on the basis of an acquaintance, it
is hard to accept that the complainant has advanced loan
to the tune of Rs.3,00,000/- without charging interest that
too by taking Rs.1,50,000/- from his friend P.W.2.
18. The evidence of P.W.2 is relied and his evidence
discloses that the accused first approached him for loan
and since he is not having cash, he asked him to approach
the complainant. Admittedly, this witness P.W.2 himself is
running finance institute. Hence, his contention that he is
not having amount of Rs.3,00,000/- appears to be a false
statement. Apart from that, the defence of the accused is
that he was acquainted with the complainant through one
Santosh and Santosh had obtained loan of Rs.20,000/-
from the complainant and as security, he has issued
cheque which is now being misused. Interestingly, during
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the course of cross-examination of D.W.1, a suggestion
was made that on 30.08.2012 the complainant and P.W.2
contributed Rs.1,50,000/- each and advanced combined
loan to the accused. This is not the case of the
complainant. Hence, if the cross-examination of D.W.1 is
considered, then the liability of the accused towards
complainant cannot be termed for Rs.3,00,000/-, but is
Rs.1,50,000/- only. Interestingly, in further cross-
examination of D.W.1, a suggestion was made to D.W.1-
accused asserting that the accused has taken loan of
Rs.1,50,000/- from the complainant, but the case is
regarding loan of Rs.3,00,000/-. Though the accused has
not replied to the statutory legal notice, considering the
contents of the notice, as it does not disclose any proper
transaction, non-reply does not have any relevancy. Apart
from that by cross-examining P.W.1 and P.W.2, the
accused has exposed financial capacity of the complainant
and as such, the presumption under Section 139 of the Act
is available in favour of the complainant, stands rebutted
and the complainant is required to prove his financial
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status, but no such evidence is forthcoming. Though it is
argued during the course of the argument that the
complainant has received accident compensation amount,
but the same is not substantiated. Hence, even on merits,
the complainant has no case and the ingredients of offence
under Section 138 of NI Act are not made out. As
observed above, under Section 401(3) of Cr.P.C., the
judgment of acquittal cannot be converted into conviction
in a revision. As such, the judgment of acquittal passed
by the learned Sessions Judge cannot be said to be
perverse or erroneous so as to call for any interference. As
such, the point under consideration is answered in the
Negative and accordingly, I proceed to pass the following:
ORDER
The revision petition stands dismissed.
Sd/-
JUDGE
RSP
