Karnataka High Court
Arun S/O Veerappa Ankalakoti vs Vishwanath Alias Vishwanathayya on 31 July, 2024
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NC: 2024:KHC-D:10796
CRL.RP No. 100466 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.100466 OF 2022 (397)
BETWEEN:
ARUN S/O. VEERAPPA ANKALAKOTI,
AGE: 43 YEARS, OCC: GROCERY BUSINESS,
R/O: BASTI ONI, NEAR JAIN TEMPLE,
HAVERI TALUKA AND DISTRICT HAVERI-581110.
...PETITIONER
(BY SRI SRINIVAS B.NAIK, ADVOCATE)
AND:
VISHWANATH @ VISHWANATHAYYA
S/O. PUTTAYYA HIREMATH,
AGE: 68 YEARS, OCC: AGRICULTURE AND BUSINESS,
R/O. KALLUMANTAPA ONI, HAVERI, TALUKA AND
DISTRICT HAVERI-581110.
...RESPONDENT
(BY SRI VIDYASHANKAR G.DALAWAI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
Digitally signed
by YASHAVANT SECTION 397 R/W 401 OF CR.P.C., 1973, SEEKING TO SET ASIDE
NARAYANKAR THE JUDGMENT AND ORDER DATED 03.09.2022 PASSED IN
Location: HIGH
COURT OF CRIMINAL APPEAL NO.37/2022 ON THE FILE OF I ADDL. DISTRICT
KARNATAKA AND SESSION JUDGE, HAVERI AND SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE DATED 30.04.2022 PASSED
IN CC NO.7/2018 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND
JMFC, HAVERI FOR THE OFFENCE PUNISHABLE UNDER SECTION 138
OF NEGOTIABLE INSTRUMENTS ACT, AND THEREBY ACQUIT THE
PETITIONER/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL REVISION PETITION, COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:10796
CRL.RP No. 100466 of 2022
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
ORAL ORDER
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)
In this revision petition filed under Section 397 of
Criminal Procedure Code (for short, "Cr.P.C"), the petitioner
who is accused before the Trial Court has challenged his
conviction and sentence for the offence punishable under
Section 138 of Negotiable Instruments Act, (for short,
"N.I.Act"), by which the Trial Court has sentenced him to
pay fine of Rs.76,250/- in default to undergo simple
imprisonment for three months. The appeal filed by him
against the said judgment and order is also dismissed by
the Sessions Court.
2. For the sake of convenience, the parties are
referred to by their ranks before the Trial Court.
3. In support of the petition, learned counsel for
the accused urged that the findings of both Courts are
contrary to the evidence placed on record and as such,
perverse. The complainant has not discharged the initial
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burden with respect of the existence of the legally
recoverable debt or liability. He has also failed to satisfy the
statutory requirements of Section 138 of N.I.Act. The
accused has rebutted the presumption by placing sufficient
material on record and the same is not appreciated by the
Trial Court. Viewed from any angle, the impugned judgment
and orders are not sustainable and pray to allow the
revision and set aside the same.
4. On the other hand, learned counsel for
complainant supported the impugned judgment and orders
passed by the Trial Court as well as the Sessions Court and
sought for dismissal of the petition.
5. Heard arguments and perused the record.
6. Thus, it is the definite case of the complainant
that he and accused are known to each other and with that
acquaintance, on 10.01.2017, accused borrowed a sum of
Rs.50,000/- from the complainant to meet his business and
family necessities with a promise to repay the same within
three months. He issued the subject cheque dated
19.04.2017. However, when presented for encashment, it
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was dishonoured for want of sufficient funds and after
issuing legal notice, and complying with all the statutory
requirements, complaint is filed.
7. At the trial, the accused admitted the fact that
subject cheuqe is drawn on his account maintained with his
banker and it bears his signature. However, he has taken
up a specific defence that he had borrowed only a sum of
Rs.5,000/- from the complainant and had issued the subject
cheque blank and misusing the same, a complainant has
filed the complaint to make unlawful gain.
8. Admittedly, the accused has not sent any reply
to the legal notice, disclosing the facts as to how the
cheque in question reached the hands of the complainant.
Although it is not mandatory for the accused entering into
the witness box to establish the circumstances under which
the cheque came to be issued and he may take the benefit
of evidence led by the complainant to prove his defence, in
the present case, there is nothing on record to establish his
defence. Therefore, he was expected enter into the witness
box.
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9. In the light of the presumption, under Section
139 of the N.I.Act, the initial burden is on the accused to
discharge the presumption, although he is only required to
discharge the said burden on preponderance of
probabilities. As rightly held by the Trial Court, although the
accused has alleged that he had issued the blank cheque
while availing hand loan of Rs.5,000/-, admittedly, he has
not taken any steps to instruct the bank to stop payment.
As held by the Hon'ble Supreme Court in Bir Singh Vs.
Mukesh Kumar1, even a blank cheque leaf voluntarily
signed and handed over, which is towards some payment
would attract presumption under Section 139 of N.I.Act, in
the absence of any cogent evidence to show that the
cheque was not issued in discharge of any debt.
10. Taking into consideration the oral and
documentary evidence placed on record, the Trial Court has
come to a correct conclusion that the allegations against
the accused are proved beyond reasonable doubt. On re-
appreciation of the same, the Sessions Court has rightly
(2019) 4 SCC 197
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dismissed the appeal. This Court finds no justifiable grounds
to interfere with the concurrent findings of the Trial Court
as well as the Sessions Court.
11. In the result, the petition fails and accordingly
following:
ORDER
i) The criminal revision petition filed under
Section 397 read with Section 401 of Criminal
Procedure Code, is dismissed.
ii) The impugned judgment and order dated
30.04.2022 in C.C.No.7/2018 on the file of
Principal Civil Judge and JMFC, Haveri, and
the judgment and order dated 03.09.2022
in Crl.A.No.37/2022 on the file of I Addl.
District and Sessions Judge, Haveri, are
hereby confirmed.
iii) Registry is directed to send copy of this
order to the trial Court and Sessions Court
forthwith.
Sd/-
(J.M.KHAZI)
JUDGE
VMB, CT: UMD
