Karnataka High Court
Smt. Parveen D/O Gudusab Mulla vs Gulzar W/O Isaq Shaikh on 20 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2025:KHC-D:3479
CRL.RP No. 100132 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100132 OF 2023
[397(Cr.PC)/438(BNSS)]
BETWEEN:
SMT.PARVEEN D/O. GUDUSAB MULLA,
AGE: 38 YEARS, OCC. PRIVATE SERVICE,
R/O. HOUSE NO.2059, DANDELI-581325,
TQ: HALIYAL, DIST: UTTARA KANNADA.
... PETITIONER
(BY SRI VIJAYKUMAR B.HORATTI, ADVOCATE)
AND:
SRI GULZAR W/O. ISAQ SHAIKH,
AGE: 45 YEARS, OCC. HOUSEHOLD WORK,
R/O. HOUSE NO.245/1, AZAD NAGAR,
DANDELI-581325, TQ. HALIYAL,
DIST. UTTARA KANNADA.
... RESPONDENT
Digitally signed
by
MALLIKARJUN
MALLIKARJUN RUDRAYYA
(BY SRI LINGESH V. KATTEMANE, ADVOCATE)
RUDRAYYA KALMATH
KALMATH
Date:
2025.02.21
14:52:20 +0530
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH UNDER SECTION 401 OF CR.P.C. SEEKING
TO CALL FOR RECORDS AND MODIFY THE ORDER DATED 01.07.2022
PASSED IN CRIMINAL APPEAL NO.5039/2021 FOR THE OFFENCE
UNDER SECTION 138 OF N.I.ACT ON THE FILE OF THE COURT OF I
ADDL. DISTRICT AND SESSIONS JUDGE, U.K. KARWAR, SITTING AT
SIRSI AND CONFIRM THE JUDGMENT PASSED IN CC NO.75/2016
DATED 18.08.2021 BY CIVIL JUDGE AND J.M.F.C. AT DANDELI.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2025:KHC-D:3479
CRL.RP No. 100132 of 2023
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Challenging order dated 01.07.2022 passed by I Additional
District and Sessions Judge, Uttara Kannada, Karwar sitting at
Sirsi in Crl.A.no.5039/2021 and seeking for modification of
order, this revision petition is filed by complainant.
2. Sri Vijaykumar B. Horatti, learned counsel for
petitioner submitted that a private complaint was filed under
Section 200 of Cr.P.C. alleging that respondent (accused) had
borrowed hand-loan of Rs.1,50,000/- from complainant
(petitioner) on 28.09.2015 agreeing to repay same within six
months and after expiry of same, when petitioner sought
refund, had issued cheque no.235482 dated 18.04.2016 drawn
on Canara Bank, Dandeli Branch in favour of petitioner. But
when presented for encashment on same day, cheque had
returned dishonored with endorsement 'insufficient funds'. It
was further submitted accused failed to repay amount even
after receipt of legal notice got issued on 20.04.2016, served
on accused on 21.04.2016. Therefore offence under Section
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138 of Negotiable Instruments Act, 1881 ('NI Act' for short)
was committed.
3. On issuance of summons, accused appeared and
denied charges and sought to be tried.
4. Petitioner examined himself as PW.1 and another
witness as PW.2 and got marked Exs.P.1 to P.5.
5. After due compliance with requirement under
Section 313 of Cr.P.C. and taking note of fact that no oral or
documentary evidence was led by accused, trial Court
proceeded to convict accused for offence punishable under
Section 138 of NI Act and sentenced him to simple
imprisonment for one day till rising of Court and directed him to
pay fine of Rs.2,50,000/- out of which Rs.1,50,000/- was to be
paid to petitioner and in default, accused was ordered to
undergo simple imprisonment for a period of three months.
6. It was submitted, aggrieved by same, accused filed
Crl.A.no.5039/2021 before I Additional District and Sessions
Judge Uttara Karnataka, Karwar sitting at Sirsi. Under
impugned judgment, learned District Judge proceeded to allow
appeal in part and reduced order of sentence from
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Rs.2,50,000/- to Rs.1,60,000/- out of which Rs.1,50,000/- was
to be paid to petitioner and remaining of Rs.10,000/- to State.
Same was illegal and unsustainable.
7. Learned counsel submitted even though order of
conviction was confirmed by modification of amount of fine,
Appellate Court was not justified in not imposing any order of
sentence in default of payment of fine. On above grounds
sought for allowing petition.
8. On other hand Sri Lingesh V. Kattemane, learned
counsel for accused sought to support impugned order. It was
submitted Appellate Court on due consideration found
justification to reduce sentence of fine from Rs.2,50,000/- to
Rs.1,60,000/- as amount mentioned in cheque Rs.1.50.000/-,
though there was no scope for interference.
9. Heard learned counsel.
10. From above, only point that would arise for
consideration is:
"Whether Appellate Court justified in modifying
order of sentence passed by trial Court by reducing
fine amount and omitting default sentence?
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11. From above, it is seen revision petition is filed on
two main contentions. One as regards reduction of fine amount
and other omission of default sentence.
12. Insofar as reduction of fine amount, admittedly
amount mentioned in cheque was for Rs.1,50,000/-. While
passing order of conviction, trial Court had not accorded
elaborate reasons for passing sentence for Rs.2,50,000/-.
Appellate Court, found fit to reduce fine amount from
Rs.2,50,000/- to Rs.1,60,000/- and has assigned sufficient
reasons for same and re-appreciation of material on record.
13. In view of above, order of modification passed by
Appellate Court in exercise of appellate jurisdiction cannot be
held to be perverse, capricious or illegal and therefore there
would be no scope for interference of this count.
14. Insofar as omission of default sentence, it is seen
that Appellate Court sustained order of conviction and
modification was only to extent of reduction of fine amount.
Perusal of order passed by Appellate Court does not indicate
any reason for omission of default sentence. It is seen that
accused has not paid fine amount, apparently due to lack of
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default sentence. Even during pendency of this revision petition
accused has not paid amount. Under above circumstances,
point for consideration is answered partly in affirmative.
Consequently, following:
ORDER
a. Revision petition is allowed in part.
b. Impugned order dated 01.06.2022 passed in
Crl.A.no.5039/2021 by Appellate Court is modified
by adding following to same :
"In default of payment of the fine the
accused shall undergo simple imprisonment
for a period of 3 months."
SD/-
(RAVI V.HOSMANI)
JUDGE
EM
