Karnataka High Court
Hajarat H Mulla (Hajarat Ali) vs Venkatesh Rayapa Doddamani on 13 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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CRL.RP No. 100384 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100384 OF 2022
[397(CR.PC)/438(BNSS)]
BETWEEN:
HAJARAT H.MULLA, (HAJARAT ALI)
AGE: 55 YEARS, OCC. SECURITY GUARD,
R/O. H.NO.158, KHANAPUR ROAD,
NEHARU NAGAR, BELAGAVI-583212.
... PETITIONER
(BY SRI V.S.KALSOORMATH, ADVOCATE FOR
SRI M.V.HIREMATH, ADVOCATE)
AND:
VENKATESH RAYAPA DODDAMANI
AGE: 32 YEARS, OCC. BUSINESS,
R/O. H.NO.36, MITRA VISHALPARK,
VIDYANAGAR NAGAR, HUBBALLI-580011.
... RESPONDENT
(BY SRI KUSHAL V.BOLMAL, ADVOCATE)
Digitally
signed by
MALLIKARJUN
MALLIKARJUN RUDRAYYA
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH UNDER SECTION 401 OF CR.P.C.,
RUDRAYYA KALMATH
KALMATH Date:
2025.02.14
15:02:47
+0530
SEEKING TO KINDLY ALLOW THE REVISION PETITION AND KINDLY
CALL FOR RECORDS AND KINDLY SET ASIDE THE IMPUGNED
JUDGMENT AND ORDER OF CONVICTION PASSED IN CRIMINAL
APPEAL NO.39/2021, DATED 17.08.2022 BY I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI,
CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION IN
C.C.NO.1515/2019, DATED 22.02.2021, BY THE JMFC III COURT
HUBBALLI, AT HUBBALLI AND CONSEQUENTLY ACQUIT THE
ACCUSED FOR AN OFFENCE PUNISHABLE UNDER SECTION 138 OF
NI ACT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 100384 of 2022
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Challenging judgment dated 17.08.2022 passed by I
Additional District and Sessions Judge, Dharwad ('Appellate
Court', for short) in Crl.A.no.39/2021 and judgment of
conviction and order of sentence dated 22.02.2021 passed by
J.M.F.C-III Court, Hubballi ('Trial Court', for short) in
C.C.no.1515/2017, this revision petition is filed.
2. Sri VS Kalasoormath, learned counsel for petitioner
(accused) submitted, respondent (complainant) had filed
CC.no.1515/2019 before trial Court alleging that petitioner had
obtained loan of Rs.2,50,000/- from respondent (complainant)
on 18.02.2016 to provide for his financial difficulties and had
repaid Rs.1,40,000/- out of same upto 15.01.2019. For
payment of balance amount of Rs.1,10,000/-, he had issued
cheque no.239914 dated 17.07.2019 drawn on Syndicate Bank,
Belagavi branch. On presentation of cheque, it returned
dishonored with endorsement 'funds insufficient' on
18.07.2019. Thereafter, complainant had got issued demand
notice on 30.07.2019. Though same was duly served on
09.08.2019, amount due was not paid even after lapse of
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fifteen days nor any reply addressed. Therefore, a private
complaint was filed.
3. On appearance, petitioner denied charges.
Therefore, matter was set for trial. Complainant examined
himself as PW.1 and got marked Exs.P.1 to P.6 Petitioner
examined himself as DW.1 and got marked Ex.D.1 to D.7.
4. During trial, main contention of petitioner was that
he had repaid Rs.1,40,000/- by 19.08.2017 and about clearing
balance on 17.07.2018, sought to be established by production
of bank pass book and vouchers.
5. However, while passing impugned judgment, trial
Court had not properly appreciated contentions especially
vouchers Exs.D.3 to D.7. It was submitted even appellate court
dismissed appeal, without re-appreciation. It was submitted,
petitioner was in any case ready to deposit balance amount,
but same was not being accepted by complainant. On above
grounds sought interference.
6. Learned counsel for respondent supported
impugned judgment/orders.
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7. Heard learned counsel, perused impugned
judgment/orders and records.
8. From above, point that arises for consideration is:
"Whether petitioner has made out a case
for interference with concurrent findings of
trial Court and Appellate Court?"
9. At outset, it is seen that this revision petition is filed
under Section 397 read with Section 401 of CrPC against
concurrent findings. Hon'ble Supreme Court in Amit Kapoor v.
Ramesh Chander reported in (2012) 9 SCC 460 has clarified
about scope for interference as under:
"18. It may also be noticed that the revisional
jurisdiction exercised by the High Court is in a
way final and no inter court remedy is available
in such cases. Of course, it may be subject to
jurisdiction of this Court under Article 136 of the
Constitution of India. Normally, a revisional
jurisdiction should be exercised on a question of
law. However, when factual appreciation is
involved, then it must find place in the class of
cases resulting in a perverse finding. Basically,
the power is required to be exercised so that
justice is done and there is no abuse of power by
the court. Merely an apprehension or suspicion of
the same would not be a sufficient ground for
interference in such cases."
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10. It is seen petitioner herein has not disputed availing
loan from complainant, but claimed repayment, firstly of
Rs.1,40,000/- by 19.08.2017 and issuance of cheque in
question towards security for repayment of balance amount of
Rs.1,10,000/-. Petitioner also claimed to have repaid balance
amount on 17.07.2018, sought to be established by Ex.D3 to
D7 vouchers.
11. As observed by trial Court, said vouchers were for
period prior to date of borrowing. It observed, contrary to
petitioner's claim to have repaid entire balance amount by
17.07.2018, petitioner admitted to have executed Ex.P.6 bond
on 05.10.2018. Though, Ex.P.6 would indicate that Ex.P.1
cheque was issued as security for balance amount, petitioner
failed to probabilise payment of same.
12. In view of ratio laid down by Hon'ble Supreme
Court in case of Sripati Singh v. State of Jharkhand,
reported in (2022) 18 SCC 614, contention about cheque
being issued only for security purposes, would not hold good.
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13. In view of fact that petitioner did not dispute receipt
of loan, being due to repay portion of same and issuance of
cheque for said purposes, presumption in law under Section
118 and 139 of NI Act would be available to complainant. As
petitioner failed to probabilize defense, extension of
presumption would be justified. Consequently, order of
conviction passed by trial Court and upheld by appellant Court
would be in accordance with law. In view of above, point for
consideration is answered in negative. Hence, following:
ORDER
Criminal Revision Petition is dismissed.
SD/-
(RAVI V.HOSMANI)
JUDGE
EM
CT:PA
