Karnataka High Court
Basavaraj S/O Mallappa Vajjaramatti ... vs Bhimappa S/O Shivappa Konnur on 21 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2025:KHC-D:3594
CRL.RP No. 100075 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100075 OF 2023
[397(CR.PC)/438(BNSS)]
BETWEEN:
BASAVARAJ,
S/O MALLAPPA VAJJARAMATTI (KULALI),
AGE: MAJOR, OCC. NIL,
R/O. KALPAD GALLI, MAHALINGAPUR,
TQ. RABAKAVI-BANAHATTI,
DIST. BAGALKOTE.
... PETITIONER
(BY SRI SRINIVAS B.NAIK, ADVOCATE)
AND:
BHIMAPPA S/O. SHIVAPPA KONNUR,
AGE: MAJOR,
OCC. AGRICULTURE AND ADVOCATE
Digitally signed
by
R/O. BELAGALI, TQ. MUDHOL,
DIST. BAGALKOTE-587101.
MALLIKARJUN
MALLIKARJUN RUDRAYYA
RUDRAYYA KALMATH
KALMATH
Date:
2025.02.24
14:24:43 +0530 ... RESPONDENT
(BY SRI M.C.HUKKERI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C 1973, SEEKING
TO CALL FOR THE RECORDS AND ALLOW THIS REVISION PETITION
AND SET ASIDE THE JUDGMENT AND ORDER DATED 03.02.2023
PASSED IN CRIMINAL APPEAL NO. 5048/2022 ON THE FILE OF I
ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOTE, SITTING AT
JAMKHANDI AND SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 24.08.2022 PASSED IN CC NO.
182/2019 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE AND JMFC
MUDHOL, FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF
N.I. ACT AND THEREBY ACQUIT THE PETITIONER/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
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NC: 2025:KHC-D:3594
CRL.RP No. 100075 of 2023
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Challenging order dated 03.02.2023 passed by I Addl.
District and Sessions Judge, Bagalkot sitting at Jamkhandi
('Appellate Court' for short) in Crl.Appeal no.5048/2022 and
judgment/order dated 24.08.2022 passed by Additional Senior
Civil Judge and JMFC, Mudhol ('trial Court' for short) in
C.C.no.182/2019, this revision petition is filed.
2. Sri Srinivas B.Naik, learned counsel for petitioner
submitted that respondent (complainant) had filed a private
complaint under Section 200 of Code of Criminal Procedure,
1973 ('CrPC' for short) alleging that accused (petitioner) was
earlier a Pigmi Collection Agent. Complainant was running a
medical shop at Basaveshwar Circle, Mahalingapur and had
sought hand loan of Rs.8,00,000/- for business and to develop
agricultural lands agreeing to return same within two months.
It was further stated, though amount was lent by complainant
during 1st week of August, 2018, when he sought repayment
during 1st week of October, 2018, petitioner had issued cheque
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bearing no.855741 dated 10.10.2018 drawn on Karnataka Bank
Ltd., Mahalingapur Branch for Rs.8,00,000/- which when
presented for collection returned dishonoured with
endorsement as "Insufficient Funds" along with memo dated
12.10.2018. Within 15 days thereafter, complainant had issued
legal notice dated 05.11.2018 demanding refund. Despite
service of notice, petitioner neither returned money nor replied
to notice and therefore, committed offence punishable under
Section 138 of Negotiable Instruments Act, 1881 ('NI Act' for
short).
3. It is submitted, petitioner entered appearance,
denied charges and sought to be tried. Complainant examined
himself and another as PW-1 and PW-2 respectively and got
marked Exs.P1 to P23. Petitioner led rebuttal evidence by
examining himself as DW-1 and got marked one document as
Ex.D1.
4. It was submitted, petitioner had set up substantial
defence not only disputing financial capacity of complainant to
pay amount but also contending that cheque was given as
security for other purposes. But without proper appreciation
trial Court proceeded to convict petitioner and directed him to
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pay fine amount of Rs.8,00,000/- and in default, to undergo
imprisonment for 6 months. Aggrieved, petitioner had filed
Crl.Appeal no.5048/2022. But Appellate Court without
re-appreciation or consideration of contentions confirmed
judgment passed by trial Court.
5. It was submitted, during cross-examination it was
elicited from PW-1 that on day petitioner had sought financial
assistance from respondent, he did not have any money with
him and had arranged Rs.50,000/- by withdrawing from State
Bank of India, Mudhol, borrowed Rs.7,00,000/- from his father
and another sum of Rs.50,000/- was borrowed from his
brother. This would indicate that complainant did not have
financial capacity to lend huge sum of Rs.8,00,000/- as alleged.
Attention was drawn to admission during cross-examination,
about complainant not knowing particulars about bank from
which his friend had withdrawn money, so as to cast doubt
about complainant's version of having lent money. In view of
above admissions, petitioner had probabilised defence.
Therefore, trial Court ought to have removed presumption
under Section 139 of NI Act and for failure to establish offence
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beyond reasonable doubt, ought to have dismissed complaint.
Failure would call for interference.
6. On other hand, Sri M.C.Hukkeri, learned counsel for
complainant sought to justify impugned judgments/orders. It
was submitted, scope for interference with concurrent findings
of fact in revision petition was extremely limited and both
Courts on due appreciation of law and facts passed
judgments/orders. It was submitted, in view of specific
deposition by PW-2 that sum of Rs.8,00,000/- was handed over
by complainant to accused in his presence, both grounds urged
would be untenable and sought for dismissal of revision.
7. Heard learned counsel and perused impugned
judgments/orders.
8. From above, only point that arises for consideration
is:
"Whether petitioner/accused establishes that
impugned judgments/orders passed by trial Court
and Appellate Court suffer from perversity and call
for interference?"
9. At outset, this is a revision petition filed under
Section 397 read with Section 401 of CrPC and as held by
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Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander
& Another reported in (2012) 9 SCC 460, normally
interference in revision would be only on questions of law.
While passing impugned judgment/order, trial Court has
referred to deposition of PW-1 - complainant wherein he has
stated about manner in which hand loan of Rs.8,00,000/- was
obtained by petitioner and for repayment of which, Ex.P1-
Cheque was issued. It also took note of date of presentation of
cheque, date of dishonour, date of receipt of intimation of
dishonour, date of issuance of legal notice as well as date of
service of said notice on drawer of cheque and filing of
complaint being within timeline stipulated under Section 138 of
NI Act. It also observed that petitioner had taken up two
definite defences, firstly disputing financial capacity of
complainant to pay amount and secondly about cheque having
been given as security for transaction between Mahesh
Huvappa Kalal.
10. While considering said contention, it noted
signature of petitioner on Ex.P1 was not disputed, thereby
attracting presumption under Section 118 as well as Section
139 of NI Act. It also referred to deposition of PW-2 that
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amount of Rs.8,00,000/- was paid by complainant to petitioner
in his presence and despite cross-examination, nothing material
was elicited so as to cast doubt or probabilize defence. In
appeal, learned District Judge on re-appreciation confirmed
findings of trial Court.
11. From above, it is seen that both Courts have based
findings about financial capacity as well as addressed
contention about cheque having been given as security while
passing impugned judgments/orders. This Court in Kishan Rao
v/s Shankar Gouda reported in 2018 (8) SCC 165 has held
mere contention about cheque having been given as security
would not be sufficient without specific evidence as
presumption under Sections 118 and 139 of NI Act would enure
to complainant. Therefore, it cannot be said that findings of
trial Court and Appellate Court are without any basis, or based
on unacceptable evidence or ignoring any acceptable evidence
or that the conclusions arrived at are perverse. In view of
above, point for consideration is answered in negative.
Consequently, revision petition is dismissed.
SD/-
(RAVI V.HOSMANI)
JUDGE
RH_CT:PA
