Karnataka High Court
Shri Madarsaheb S/O Bapusaheb Jamadar vs Naveed S/O Wahid Siddique on 3 March, 2025
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2025:KHC-D:4115
CRL.RP No. 100383 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 3RD DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.100383 OF 2022
(397(Cr.PC)/438(BNSS))
BETWEEN:
SHRI MADARSAHEB S/O. BAPUSAHEB JAMADAR,
AGE: 49 YEARS, OCC. BUSINESS,
R/O. H. NO.114, 2ND CROSS, VAIBHAV NAGAR,
NEAR BAUXITE ROAD, BELAGAVI, PIN CODE-590003.
...PETITIONER
(BY SRI MAHANTESH S. HIREMATH, ADVOCATE)
AND:
NAVEED S/O. WAHID SIDDIQUE,
AGE: 37 YEARS, OCC. BUSINESS,
R/O. H. NO.4273, JALGAR GALLI,
BELAGAVI, PIN CODE-590001.
...RESPONDENT
Digitally
(BY SRI SHARAD M. PATIL, ADVOCATE)
signed by
VN
VN BADIGER
BADIGER Date:
2025.03.11
14:27:48
+0530
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 OF CR.P.C., SEEKING TO CALL FOR
RECORDS AND ALLOW THE REVISION PETITION AND SET ASIDE
THE JUDGMENT PASSED IN CRIMINAL APPEAL NO. 62/2021 DATED
ON 26.08.2022 PASSED BY THE LEARNED XI ADDL. SESSION JUDGE
BELAGAVI AND ALSO THE JUDGMENT AND ORDER PASSED IN C.C.
NO.765/2017 DATED 16.02.2021 PASSED BY THE VIII JMFC.
BELAGAVI FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF
N I ACT AND ALLOW THE REVISION PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 100383 of 2022
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
1. Heard learned counsel Sri.Mahantesh S.
Hiremath, for revision petitioner and Sri.Sharad M. Patil,
learned counsel for respondent.
2. Accused who has been convicted for the offence
punishable under Section 138 of the Negotiable
Instrument Act, 1881 (for short, 'the N.I.Act'), in
C.C.No.765/2017 and ordered to pay fine of Rs.4,00,000/,
out of which a sum of Rs.3,75,000/- is ordered to be paid
as compensation and the balance sum of Rs.25,000/-
towards defraying expenses of the State with default
sentence of 3 months for simple imprisonment which has
got confirmed in Crl.A.No.62/2021 dated 26.08.2022 is the
revision petitioner, which was modified by the first
appellate Court which was directed the accused to pay
compensation in a sum of Rs.3,00,000/- and out of which
Rs.290,000/- was ordered to be paid as compensation and
Rs.10,000/- towards defraying expenses of the State is
the revision petitioner.
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3. The brief facts which are necessary for the
disposal of the petition are as under:
A cheque came to be issued on 02.07.2014 in a sum
of Rs.2,60,000/- which was paid towards repayment of the
hand loan obtained on 02.04.2014 came to be dishonored
with an endorsement "funds insufficient".
4. A legal notice was issued, and there is no
complainant to be calling with the notice, which resulted in
filing the complaint seeking action against the revision
petitioner.
5. Learned trial magistrate after completing
necessary formalities, summoned the accused and
recorded plea. Accused pleaded not guilty. Therefore, trial
was held.
6. In order to prove the case of the complainant,
complainant got examined as P.W.1 and placed 7
documentary evidence which were exhibited and marked
as EX.P.1 to P.7.
7. Detailed cross-examination of PW.1 did not lead
to any positive material so as to rebut the presumption
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available to the complainant under Section 139 of the N.I.
Act.
8. Thereafter, accused statement as is
contemplated under Section 313 of the Criminal Procedure
Code (for short. 'the Cr.P.C.') was recorded, wherein
accused has denied all the incriminating materials, but
failed to place any oral and documentary evidence on
record.
9. Thereafter, learned trial magistrate heard the
arguments of the parties and convicted accused for the
offence punishable under Section 138 of the N.I.Act., and
imposed fine of Rs.400,000/- out of which sum of
Rs.3,75,000/- was ordered to be paid as compensation to
the complainant and the balance sum of Rs.25,000/-
towards defraying expenses of the State.
10. Being aggrieved by the same, accused
preferred an appeal before the District Court in
Crl.A.No.62/2021.
11. Learned judge in the first appellate Court after
securing records, heard the parties in detail and re-
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appreciation of material available on record, maintained
the order of conviction, but modified the sentence by the
imposing the fine in a sum of Rs.3,00,000/- as against the
cheque amount of Rs.2,60,000/- and out of which
Rs.2,90,000/- as ordered to be paid as compensation and
balance sum of Rs.10,000/- towards defraying expenses of
the State.
12. Being further aggrieved by the same, accused is
before this court.
13. Learned revision petitioner Sri.Mahantesh S.
Hiremath, vehemently contended that both the courts
have not properly appreciated the materials available on
record and wrongly convicted the accused and thus sought
for allowing of the revision petition.
14. He also contended that the sentence ordered by
the trial magistrate though modified by the learned judge
in the first appellate court, modified the sentence is
suffering from serious lacuna and sought for allowing of
the petition.
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15. Per contra, Sri.Sharad M. Patil, learned counsel
representing the respondent-complainant supports
impugned orders.
16. Having heard parties in detail, this Court
perused the material records meticulously. On such
perusal of the material on records, issuance of cheque by
revision petitioner and signature found therein is not in
disput. Pertinent to note that once the cheque is issued by
the accused and the signature therein is not disputed, the
complainant enjoys the presumption under Section 139 of
the N.I.Act that the cheque is issued towards legally
recoverable debt.
17. No doubt it is a rebuttable presumption. In
order to rebut the said presumption, the accused neither
placed on record any oral and documentary evidence on
record.
18. Under such circumstances, conviction of the
accused for the offence punishable under Section 138 of
the N.I.At., needs no interference.
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19. As could be seen from the judgment of the first
appellate Court, learned judge in the first appellate Court
using the discretion vested in the appellate jurisdiction
reduced the sentence as ordered by the learned trial
magistrate from Rs.4,00,000/- to Rs.3,00,000/- as against
cheque amount of Rs.2,60,000/-.
20. The complainant has not filed any revision
against the said modified and therefore, insofar as the
complainant is concerned said order has become final.
21. Taking note of the fact that sum of Rs.10,000/-
is ordered to be paid as defraying expenses of the State is
concerned, since lis is privy to the parties and no State
machinery is involved, awarding of Rs.10,000/- towards
defraying expenses of the State cannot be sustained in
law.
22. Accordingly, from the above discussion, the
following order is passed.
ORDER
i. The revision petition is allowed in part.
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ii. While maintaining the conviction of the accused
for the offence punishable under Section 138 of
the N.I.Act, fine amount is modified by the first
appellate Court in sum of Rs.3,00,000/- is
reduced to Rs.2,90,000/-.
iii. Entire amount of Rs.2,90,000/- is ordered to be
paid as compensation to the complainant.
iv. Time is granted till 30.03.2025 to pay balance of
fine amount failing which, the revision petitioner
shall undergo imprisonment for a period of 6
months.
v. Sum of Rs.10,000/- awarded by learned judge in
the first appellate Court towards defraying
expenses of the State is hereby set aside.
vi. Amount in deposit is ordered to be withdrawn by
the complainant into due identification.
Sd/-
(V.SRISHANANDA)
JUDGE
AC
