Karnataka High Court
Gurulingappa vs Shivasangappa on 29 May, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-K:3420
CRL.RP No. 200043 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO.200043 OF 2019 (397)
BETWEEN:
GURULINGAPPA
S/O BAGUDEPPA ULLAGADDI
AGE: 60 YEARS
OCC: COANTRACTOR
R/O. SIMIKERI VILLAGE
TQ. & DIST: BAGALKOT -586 119
...PETITIONER
(BY SRI R. S. LAGALI, ADVOCATE)
AND:
SHIVASANGAPPA
S/O SHANKRAPPA PYATIGOUDAR
Digitally AGE: 47 YEARS, OCC: BUSINESS
signed by
SACHIN R/O VIDYA NAGAR,
Location: MUDDEBIHAL
HIGH
COURT OF TQ:MUDDEBIHAL
KARNATAKA
DIST: VIJAYAPUR-586 212
...RESPONDENT
THIS CRL.RP IS FILED U/S. 397 R/W SEC. 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 20.03.2019 PASSED BY THE PRINCIPAL
SESSIONS JUDGE, VIJAYAPURA, IN CRIMINAL APPEAL
NO.04/2018 IN DISMISSING THE APPEAL PREFERRED BY THE
PETITIONER AND THEREBY CONFIRMING THE JUDGMENT AND
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CRL.RP No. 200043 of 2019
ORDER OF CONVICTION DATED 28.12.2017 PASSED BY THE
CIVIL JUDGE & JMFC, COURT, MUDDEBIHAL IN
C.C.NO.293/2011 AND ACQUIT THE PETITIONER FOR THE
OFFENCES P/U/SEC.138 N.I.ACT.
THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition under Section 397 read with
Section 401 of Cr.P.C. is filed by the accused challenging
the judgment and order of conviction dated 28.12.2017
passed by the Court of Judicial Magistrate First Class,
Muddebihal (for short 'Trial Court') in C.C.No.293/2011
and the judgment and order dated 20.03.2019 passed by
the Court of Principal Sessions Judge, Vijayapur (for short
'first appellate Court') in Criminal Appeal No.4/2018
confirming the judgment and order of conviction passed in
C.C.No.293/2011.
2. Heard learned counsel for the revision
petitioner.
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3. The respondent herein had initiated proceedings
against the petitioner before the Trial Court in
C.C.No.293/2011 for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881 (for short
'N.I.Act'). It is the case of the respondent that the
petitioner had obtained hand loan of Rs.5,00,000/- and
towards payment of the same, he had issued cheque
bearing No.050626 dated 06.09.2011 drawn on Bagalkot
District Central Co-operative Bank Limited in favour of the
respondent. The said cheque on presentation for
realization was dishonoured. The respondent thereafter
complied the statutory requirements as provided under the
provisions of the N.I.Act and since the petitioner had failed
to pay the amount covered under the cheque in spite of
legal notice being served on him, had initiated proceedings
against the petitioner for the offence punishable under
Section 138 of the N.I.Act.
4. In the said proceedings, the petitioner had
entered appearance and claimed to be tried. In support of
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his case, the respondent has examined himself as PW.1
and had got marked 7 documents as Exs.P1 to P7. The
petitioner herein in support of his defence examined
himself as DW.1, but, no document was marked on his
behalf.
5. It was the specific defence of the petitioner that
the cheque in question was issued to one Gilani Sedaji and
said cheque was misused by the respondent and a false
case has been filed. The Trial Court vide judgment and
order dated 28.12.2017 convicted the petitioner for the
offence punishable under Section 138 of the N.I.Act and
sentenced him to pay fine of Rs.3,75,000/- and out of the
said amount, Rs.3,70,000/- was directed to be paid to the
respondent-complainant and in default of payment of fine,
accused/petitioner was sentenced to undergo simple
imprisonment for a period of five months.
6. The said judgment and order of sentence
passed by the Trial Court has been confirmed by the first
appellate Court in Criminal Appeal No.4/2018 vide
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judgment and order dated 20.03.2019. Being aggrieved
by the same, the petitioner is before this Court.
7. Learned counsel for the petitioner submits that
during the pendency of the trial, settlement was
negotiated between the parties and towards part payment
of the settlement, a sum of Rs.1,50,000/- was paid by the
petitioner. Subsequently, the settlement had failed. The
Trial Court considered that the petitioner has admitted his
liability merely for the reason that he had agreed for
settlement. He submits that during the course of cross-
examination of PW.1, he has admitted the transaction with
Gilani Sedaji and in view of the same, the presumption
that arose against the petitioner stood rebutted. He
submits that the respondent did not have financial
capacity to pay a sum of Rs.5,00,000/- to the petitioner
and this aspect of the matter has not been appreciated by
the Courts below.
8. The petitioner has not disputed his signature on
the cheque in question. It is also not in dispute that the
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cheque in question has been drawn on the account
maintained by the petitioner in the drawee Bank.
Therefore, a presumption arises as against the petitioner
under Section 139 of the N.I.Act and unless the petitioner
rebut this presumption by putting forward probable
defence, he is liable to be convicted for the offence
punishable under Section 138 of the N.I.Act.
9. In the present case, the petitioner has taken a
specific defence that the cheque in question was issued by
him to one Gilani Sedaji and the same was misused by the
respondent. Undisputedly, the petitioner has not examined
said Gilani Sedaji to prove his defence. Perusal of the
cross-examination of PW.1 would reflect that PW.1 has
admitted during the course of his cross-examination that
he and the petitioner both had transactions with Gilani
Sedaji and towards amount borrowed by them from Gilani
Sedaji, they used to give cheques to Gilani Sedaji as
security. However, the suggestion made on behalf of the
petitioner that the respondent has misused the said
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cheque, which was given by the petitioner to Gilani Sedaji
has been denied by PW.1. Therefore, it cannot be said
that the petitioner has probablised his defence. Unless the
petitioner probablises his defence put forward by him, the
presumption that arose against him under Section 139 of
the N.I.Act does not get rebutted. Therefore, no fault can
be found in the judgment and order of conviction passed
by the Trial Court.
10. The Trial Court has taken into consideration
that the petitioner during the course of trial had
negotiated for settlement and as part payment of the
settlement had paid a sum of Rs.1,50,000/- to the
respondent and it is in this background, the petitioner has
been sentenced to pay fine of Rs.3,75,000/- though the
cheque amount involved in the present case is
Rs.5.00,000/-.
11. The first appellate Court has re-appreciated the
material evidence available on record and has rightly
dismissed the appeal. I do not find any illegally or
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irregularity in the judgment and order passed by the
Courts below, which are challenged in this revision
petition.
Accordingly, the revision petition stands dismissed.
Sd/-
JUDGE
SRT
