Karnataka High Court
Shashikanth S/O Ramchadrabedge vs Nagendra S/O Shankar Rao Kadappa on 9 September, 2024
Author: K Natarajan
Bench: K Natarajan
-1-
NC: 2024:KHC-K:6748
CRL.RP No. 200053 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL REVISION PETITION NO.200053 OF 2022
(397(Cr.PC)/438(BNSS))
BETWEEN:
SHASHIKANTH S/O RAMCHADRA BEDGE,
AGED ABOUT 48 YEARS, OCC: AGRICULTURE,
R/AT SALEGAON VILLAGE,
TQ. ALAND DIST. KALABURAGI-585302.
...PETITIONER
(BY SRI. B. C. JAKA, ADVOCATE)
Digitally signed
by KHAJAAMEEN
L MALAGHAN
Location: High
AND:
Court Of
Karnataka
NAGENDRA S/O SHANKAR RAO KADAPPA,
AGE: 48 YEARS, OCC: BUSINESS,
R/AT NEW BUS-STAND ROAD, ALAND,
TQ. ALAND, DIST. KALABURAGI-585302.
...RESPONDENT
(BY SRI. MAHADEV S. PATIL, ADVOCATE)
-2-
NC: 2024:KHC-K:6748
CRL.RP No. 200053 of 2022
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) AND 401 OF CR.P.C., PRAYING TO CALL FOR
THE RECORDS IN C.C.NO.554/2012, ON THE FILE OF PRL.
CIVIL JUDGE AND JMFC, ALAND AND CRL.A.NO.35/2020, ON
THE FILE OF III ADDL. DIST AND SESSIONS JUDGE, AT
KALABURAGI, TO SATISFY THE CORRECTNESS. B) SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE,
DATED 05.10.2020, PASSED IN C.C.NO.554/2012, BY THE PRL.
CIVIL JUDGE AND JMFC, ALAND AND JUDGMENT AND ORDER
DATED 09.09.2022, PASSED IN CRL.A.NO.35/2020 BY THE III
ADDL. DIST AND SESSIONS JUDGE, AT KALABURAGI, BY
ALLOWING THIS REVISION PETITION, C) CONSEQUENTLY
ACQUIT THE PETITIONER FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT.
THIS PETITION, COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
-3-
NC: 2024:KHC-K:6748
CRL.RP No. 200053 of 2022
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
ORAL ORDER
(PER: HON'BLE MR. JUSTICE K NATARAJAN)
This revision petition is filed by the petitioner under
Sections 397 (1) and 401 of Cr.P.C. praying to set-aside
the judgment of conviction and order of sentence dated
05.10.2020 passed in C.C.No.554/2012 by the Prl. Civil
Judge and JMFC, Aland and judgment and order dated
09.09.2022 passed in Crl.A.No.35/2020 by the III Addl.
District and Sessions Judge, at Kalaburagi, consequently,
acquit the petitioner for the offence punishable under
Section 138 of N.I. Act.
02. Heard the learned counsel for the petitioner and
the learned counsel for the respondent.
03. The learned counsel for the petitioner has
contended that both the Court below not properly
appreciated the evidence on record. The amount has been
fully cleared by the petitioner. In spite of the same,
NC: 2024:KHC-K:6748
cheque has been misused by the respondent. The
evidence of the petitioner not properly considered.
Therefore, prayed for allowing the petition.
04. Per contra, the learned counsel for the
respondent has seriously objected the petition and
contended that both the Courts below concurrently found
guilty and convicted the petitioner. Therefore, some of the
documents were admitted by the PW.1 in the cross-
examination, which was marked as Exs.P.12 and 13. Such
being the case, there is agreement of loan, bank receipts,
legal notice and cheques were all produced, which clearly
reveals that he has committed the offence. Therefore,
there is no need to interfere in the judgment of conviction
and sentence passed by the Court below. Accordingly,
prayed to dismiss the petition.
05. Having heard the arguments and on perusal of
the records, it reveals that the respondent has filed a
private complaint Section 200 of Cr.P.C. read with Section
138 of N.I. Act alleging that the petitioner borrowed loan
of Rs.1,10,000/- on 04.07.2009 and to discharge the loan,
NC: 2024:KHC-K:6748
he has issued two cheques, each of Rs.55,000/- dated
21.05.2012 and 31.05.2012, which came to be
dishonored. A notice has been issued. He has not paid the
amount. Hence, a complaint came to be filed.
06. In pursuance of the notice, the petitioner has
appeared and pleaded not guilty and claims to be tried.
Accordingly, the respondent / complainant examined
himself as PW.1 and another witness as PW.2 and 13
documents were marked. The petitioner / accused himself
examined as DW.1 and two documents were marked.
07. Considering the evidence on record, the Trial
Court found the accused guilty and convicted. The same
was upheld by the First Appellate Court. On careful
reading of the judgments of both the Courts below, it is
well settled when the concurrent findings of conviction
held by both the court below, the High Court should be
very slow in interfering with the same. The High Court
cannot re-appreciate the evidence on record in the
revision, except on the propriety or of the order of
sentence under Section 397 of Cr.P.C.
NC: 2024:KHC-K:6748
08. On perusal of the same, there was a loan
agreement between the parties as per Ex.P.10. The
accused given two cheques Ex.P.1 and Ex.P.2 which was
dishonored, the postal acknowledgement and the bank
report, was there. Subsequently, a legal notice was issued
as per Exs.P.4 and 5. He has not given any proper reply
and not paid the amount. Therefore, a complaint came to
be filed.
09. The evidence also led by the PWs.1 and 2. The
accused himself examined as DW.1. His case is one of the
total denial, but not examined any other third party
witnesses to show that he has paid the entire amount and
there is no balance.
10. It is well settled principle of law that the
presumption under Section 139 of N.I. Act in favour of the
complainant until it is rebutted by the accused. The loan
agreement, cheque and the legal notice, were all clearly
reveals that there is a loan transaction between the
accused and the complainant and for discharge of the loan
NC: 2024:KHC-K:6748
he has issued cheque which was dishonored and he has
not paid the amount. Therefore, there is a legal
enforceable debt payable by the accused to the
complainant and the cheque was dishonored, it attracts
Section 138 of N.I. Act. Therefore, by appreciating the
evidence on record, the Trial Court has rightly convicted
the accused. The First Appellate Court re-appreciated the
evidence on record and confirmed the order. Therefore, in
respect of finding of guilt by the both the Courts below do
not call for any interference.
11. However, the sentence passed by the Trial
Court for cheque of Rs.1,10,000/- it was awarded double
the fine amount. The double the fine amount is
discretionary and the maximum punishment imposed
under Section 138 of N.I. Act.
12. Considering the fact and circumstances of the
case, I find the double the fine amount is not correct and it
required to be reduced in respect sentence. Therefore, I
proceed to pass the following;
NC: 2024:KHC-K:6748
ORDER
I. The petition is allowed in part.
II. The finding of guilt under Section 138 N.I. Act is
hereby confirmed.
III. The sentence imposed by the Trial Court is hereby
modified as under:-
A. The petitioner / accused is sentenced to pay a fine
Rs.1,40,000/- and in default of payment of fine,
he shall undergo 06 months simple imprisonment.
Out of the fine amount collected Rs.1,35,000/- is
ordered to be released to the respondent with due
identification and remaining Rs.5,000/- shall be
paid as fine to the State.
B. The petitioner said to be already deposited
Rs.1,10,000/-. Two weeks time is granted to
deposit remaining Rs.30,000/- before the Trial
Court from the date of receipt of copy of this
order.
Sd/-
(K NATARAJAN)
JUDGE
KJJ
CT:SI
