Karnataka High Court
Shambulingappa S/O Sangappa Ankalagi vs Mallikarjun S/O Sangappa Mugali on 5 February, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2025:KHC-K:853
CRL.RP No. 200012 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 200012 OF 2017
(397(Cr.PC)/438(BNSS))
BETWEEN:
SHAMBULINGAPPA S/O SANGAPPA ANKALAGI,
AGE: ABOUT 53 YEARS,
OCC: STENOGRAPHER IN DEPT. OF IQAC
(ADMINISTRATION)
GULBARGA UNIVERSITY, KALABURAGI.
...PETITIONER
(BY SRI MAHANTESH H. DESAI, ADVOCATE)
AND:
Digitally signed by MALLIKARJUN S/O SANGAPPA MUGALI,
SHIVAKUMAR AGE: ABOUT 60 YEARS, OCC: RETD. EMPLOYEE OF
HIREMATH CCI LTD. KURKUNTA CEMENT FACTORY,
Location: HIGH SEDAM, TQ. SEDAM, DIST. KALABURAGI.
COURT OF
KARNATAKA
...RESPONDENT
(BY SRI AVINASH A. UPLAONKAR AND
SRI RAVI K. ANOOR, ADVOCATES)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
PRAYING TO ALLOW THE CRIMINAL REVISION PETITION U/S
397 AND 401 OF CR.P.C. FILED BY THE REVISION PETITIONER
AND SET ASIDE THE ORDER DATED 14-12-2016 PASSED BY
THE HON'BLE I ADDL. SESSIONS JUDGE, KALABURAGI IN
CRL.APPEAL NO.71/2015 AND ALSO SET ASIDE THE JUDGMENT
OF CONVICTION AND ORDER OF SENTENCE DATED 17-8-2015
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CRL.RP No. 200012 of 2017
PASSED BY IV ADDL. CIVIL JUDGE & JMFC, KALABURAGI IN
C.C.NO.1885/2011 AND ACQUIT THE PETITIONER/ACCUSED
FOR THE OFFENCE PUNISHABLE U/S 138 OF N.I. ACT.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
This criminal revision petition under Section 397 read
with Section 401 of Cr.P.C., is filed by the accused
challenging the Judgment of conviction and order of sentence
passed by the Court of IV Additional Civil Judge and JMFC
Court, Kalaburagi, in C.C.No.1885/2011 dated 11.08.2015,
which is confirmed in Criminal Appeal No.71/2015 by the
Court of I Additional Sessions Judge, at Kalaburagi, vide
Judgment and order dated 14.12.2016.
2. Heard the learned counsel for the parties.
3. The respondent herein had initiated proceedings
against the petitioner before the trial Court for the offence
punishable under Section 138 of Negotiable Instruments Act,
1881 (for short 'N.I.Act') in C.C.No.1885/2011. It is the case
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of the respondent that, the petitioner had borrowed a loan of
Rs.3,00,000/- from the respondent and towards the
repayment of the said amount, he had issued cheque in
question bearing No.478054 dated 04.05.2010, drawn in
favour of the respondent for a sum of Rs.3,00,000/-. The
said cheque on presentation for realization was dishonoured
by the drawee Bank and therefore, a legal notice dated
11.10.2010 was got issued to the petitioner by the
respondent. In spite of service of notice, the amount covered
under the cheque in question was not paid by the petitioner
and therefore, the respondent was constrained to approach
the trial Court by filing a complaint against the petitioner,
alleging that, he had committed the offence punishable
under Section 138 of N.I.Act. In the said proceedings, the
petitioner who had appeared before the trial Court, had
claimed to be tried. The respondent therefore, had examined
himself as P.W.1 and two other witnesses were examined as
P.W.2 and P.W.3. In support of his case, 18 documents were
marked as Ex.P.1 to Ex.P.18. On behalf of the defence, the
petitioner examined himself as D.W.1, but no documents
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were got marked in support of the defence. The trial Court
after hearing the arguments addressed by both sides, vide
impugned Judgment and order dated 17.08.2015, convicted
the petitioner for the offence punishable under Section 138
of N.I.Act and sentenced him to pay fine of Rs.3,85,000/-
and in default to undergo simple imprisonment for a period
of six months. The said Judgment and order of conviction
passed by the trial Court in C.C.No.1885/2011 was
confirmed in Criminal Appeal No.71/2015 by the Court of I
Additional Sessions Judge, Kalaburagi. Being aggrieved by
the same, the petitioner is before this Court.
4. Learned counsel for the petitioner having
reiterated the grounds urged in the petition submits that, the
Courts below have failed to properly appreciate the oral and
documentary evidence available on record. The respondent
had failed to prove the transaction and also his capacity to
pay the amount to the petitioner. Therefore, the trial Court
was not justified in convicting him.
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5. Per contra, learned counsel for the respondent
has argued in support of the impugned Judgment and order,
and prays to dismiss the revision petition.
6. A perusal of the material on record would go to
show that, the cheque in question was undisputedly drawn
on the account of the petitioner maintained by him in State
Bank of Hyderabad, University Branch, Gulabarga. The
signature found in the cheque is also not in dispute.
Therefore, a presumption under Section 139 of N.I.Act arises
as against the petitioner. It is the specific contention of the
petitioner that, though he had approached the respondent
seeking financial assistance, the respondent had not paid
him any amount and on the other hand, he had assured to
arrange financial assistance from a third party and with that
assurance, he had collected signed blank cheques from him
in Hotel Pariwar. Thereafter, he had not arranged the
financial assistance as assured and on the other hand, he
had misused the cheque in question and initiated criminal
proceedings.
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7. The respondent was working as a employee in a
private Cement Factory and therefore, his financial capacity
to pay a sum of Rs.3,00,000/- to the petitioner cannot be
doubted. The respondent has proved his transaction with the
petitioner by examining P.W.2 and P.W.3. The evidence of
P.W.2 and P.W.3 corroborates with the evidence of P.W.1.
Though defence has cross-examined them, nothing worth
has been elicited from the mouth of anyone of the witness to
discredit their evidence. The petitioner who has put forward
a defence has failed to probabalize the same by producing
necessary material before the Court in support of his
defence. On the other hand, the respondent in addition to
the aforesaid oral evidence of P.W.1 to P.W.3 had produced
documentary evidence at Ex.P.1 to Ex.P.18 and perusal of
the aforesaid material would clearly show that, the cheque in
question which was issued by the petitioner was dishonoured
by the drawee Bank for the reason that, 'funds were
insufficient' in the Bank account of the petitioner. Thereafter
the respondent had got issued a legal notice to the petitioner
claiming the amount covered under the cheque in question.
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In spite of service of notice, the petitioner had not paid the
amount covered under the cheque and therefore, the cause
of action to file a complaint against the petitioner for the
offence punishable under Section 138 of N.I.Act had arisen
and accordingly a complaint was filed by the respondent. As
stated earlier, since the cheque in question and the signature
in the cheque in question are not in dispute, a presumption
under Section 139 of N.I.Act, arises in this matter, against
the petitioner and unless it is rebutted by putting up a
probable defence, the petitioner is liable to be punished for
the alleged offence. In the case on hand, the petitioner has
failed to rebut the presumption that arose against him under
Section 139 of N.I.Act and therefore, the Courts below were
fully justified in convicting him for the alleged offence. I do
not find any illegality or irregularity in the impugned
Judgment of conviction and order of sentence passed by the
Courts below which calls for interference by this Court in
exercise of its revisional powers.
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8. Under the circumstances, I am of the opinion
that, this revision petition lacks merits. Accordingly, the
petition is dismissed.
9. The respondent-complainant is at liberty to
withdraw the amount deposited if any by the petitioner
before the trial Court.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
SVH
CT:PK
