Karnataka High Court
Manoj S/O Shankreppa Utnal vs Kumari Vijayalaxmi on 28 June, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-K:4414
CRL.RP No. 200068 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL R.P.NO.200068 OF 2023 (397)
BETWEEN:
MANOJ S/O SHANKREPPA UTNAL
AGE: 36 YEARS, OCC: BUSINESS,
R/O. ADARSH NAGAR,
ASHRAM ROAD, VIJAYAPURA,
DIST: VIJAYAPURA.
...PETITIONER
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
KUMARI VIJAYALAXMI
D/O APPASAHEB DUMANE,
Digitally AGE: 38 YEARS,
signed by
SHILPA R
OCC: ADVOCATE,
TENIHALLI R/O. NEAR VIJAYAPURA SINDAGI,
Location:
HIGH ROAD BRIDGE, STATION ROAD,
COURT OF
KARNATAKA VIJAYAPURA-585 102.
...RESPONDENT
(BY SRI R.S.LAGALI, ADVOCATE)
THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C
PRAYING TO SET-ASIDE THE JUDGMENT DATED 06.02.2023
PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE,
VIJAYAPURA IN CRIMINAL APPEAL NO.5/2022 AND THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
16.12.2021 PASSED BY I ADDL. CIVIL JUDGE AND J.M.F.C-I AT
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CRL.RP No. 200068 of 2023
VIJAYAPURA IN C.C.NO. 5449/2017 FOR THE OFFENCE
PUNISHABLE U/SEC. 138 OF N.I. ACT CONSEQUENTLY ACQUIT
THE PETITIONER.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court under Section 397
read with Section 401 of Cr.P.C. with a prayer to set aside
the judgment and order of conviction passed by the Court
of I Additional Civil Judge and JMFC-I at Vijayapur (for
short 'Trial Court') in Criminal Case No.5449/2017 dated
16.12.2021 and the judgment and order dated 06.02.2023
passed in Criminal Appeal No.5/2022 by the Court of II
Additional District and Sessions Judge at Vijayapur (for
short 'first appellate Court').
2. Heard the learned counsel for the parties.
3. The respondent herein had initiated proceedings
against the petitioner for the offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (for
short 'N.I.Act') before the Trial Court in
C.C.No.5449/2017. It is the case of the respondent that
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she is an advocate by profession and the petitioner was
acquainted to her. The petitioner had borrowed a sum of
Rs.9,00,000/- from the respondent in three different
installments and towards repayment of the amount
borrowed, he had issued a cheque bearing No.5000005
dated 03.06.2017 for a sum of Rs.9,00,000/- drawn on
Bank of Baroda, Vijayapur Branch in favour of the
respondent. The said cheque on presentation for
realization was dishonoured by the drawee Bank with a
shara 'want of funds'. Thereafter, the respondent got
issued a legal notice to the petitioner and in spite of
service of said notice, the petitioner had filed to repay the
amount covered under the cheque in question and it is in
this background, she had initiated proceedings against
petitioner for the offence punishable under Section 138 of
the N.I.Act.
4. In the said proceedings, the petitioner had
entered appearance before the Trial Court and claimed to
be tried. The respondent/complainant in order to prove
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her case had examined herself as PW.1 and had got
marked seven documents as Exs.P1 to P7. On behalf of
the defence, no oral or documentary evidence was led.
5. The Trial Court thereafter heard the arguments
addressed on behalf of both the parties and vide the
impugned judgment and order, convicted the petitioner for
the offence punishable under Section 138 of the N.I.Act
and sentenced him to undergo simple imprisonment for a
period of one year and also to pay fine of Rs.9,25,000/-
and in default, he shall undergo further simple
imprisonment for a period of three months.
6. The appeal filed by the petitioner in Criminal
Appeal No.5/2022 as against the judgment and order of
conviction and sentence passed by the Trial Court was
dismissed by the first appellate Court vide judgment and
order dated 06.02.2023. Being aggrieved by the same,
the petitioner/accused is before this Court.
7. The learned counsel for the petitioner having
reiterated the grounds urged in the petition submits that
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the Courts below have erred in convicting the petitioner
for the alleged offence. He submits that the respondent
had failed to prove the transaction between the petitioner
and herself and therefore, the Courts below ought to have
acquitted the petitioner. Accordingly, he prays to allow
the revision petition.
8. Per contra, learned counsel for the respondent
has argued in support of the impugned judgment and
order of conviction passed by the Courts below. He
submits that the presumption that arose against the
petitioner stood un-rebutted before the Trial Court and
therefore, the Courts below were justified in convicting the
petitioner for the offence punishable under Section 138 of
the N.I.Act. Accordingly, he prays to dismiss the revision
petition.
9. The petitioner herein has not disputed his
signature found in Ex.P1 - the cheque in question nor has
he disputed that the cheque in question was drawn on the
account maintained by him in Bank of Baroda, Vijayapur
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Branch. Therefore, the presumption arises against him
under Section 139 of the N.I.Act and unless the same is
rebutted by him by putting forward a probable defence, he
is liable to be convicted for the offence punishable under
Section 138 of the N.I.Act.
10. In the present case, the
respondent/complainant had examined herself as PW.1
and had produced seven documents as per Exs.P1 to P7.
Ex.P1 is the cheque in question and Ex.P2 is the Bank
endorsement about dishonour of cheque in question. Ex.P3
is the copy of the legal notice issued to the petitioner and
Exs.P4 and P5 are the postal receipt and postal cover
respectively. Ex.P6 is the agreement of hand loan
between the petitioner and the respondent and Ex.P7 is
the agreement for sale under which the respondent is said
to have received certain amount, which was handed over
by her to the petitioner herein. The petitioner herein has
not put forward any defence before the Trial Court, except
denying borrowing of any amount from the respondent.
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The petitioner has not stated before the Trial Court as to
how the cheque in question which belongs to him had
reached the hands of the respondent. There is absolutely
no explanation for the same by the petitioner. Since the
petitioner had not put forward any defence before the Trial
Court, the presumption that arose as against him stood
un-rebutted and eventually he is liable to be punished for
the offence punishable under Section 138 of the N.I.Act.
The Trial Court as well as the first appellate Court having
appreciated the oral and documentary evidence available
on record have rightly come to a conclusion that the
presumption that arose against the petitioner stood un-
rebutted before the Trial Court and accordingly have
rightly convicted him for the offence punishable under
Section 138 of the N.I.Act.
11. The material on record would go to show that
the petitioner has not complied with the interim order
passed by this Court and till date he has not deposited any
amount either before the first appellate Court or before
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this Court, though the interim order was passed directing
him to deposit some portion of the fine amount.
Therefore, his conduct does not entitle him even to seek
any modification of the sentence imposed by the Trial
Court.
12. Under the circumstances, the revision petition
filed by the petitioner challenging the impugned judgment
and order of conviction and sentence passed by the Courts
below which do not suffer from any illegality or
irregularity, is devoid of any merits. Accordingly, following
order is passed:
ORDER
The criminal revision petition is dismissed.
Sd/-
JUDGE
SRT
