Karnataka High Court
Sri Vithal S/O Kallappa Avvannagol ... vs The Axis Bank on 7 March, 2025
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2025:KHC-D:4417
CRL.RP No. 100264 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.100264 OF 2023
(397(CR.PC)/438(BNSS))
BETWEEN:
SRI VITHAL S/O. KALLAPPA AVVANNAGOL @ PUJARI,
AGE: 73 YEARS, OCC. AGRICULTURE, R/O. MURAGUNDI,
TQ. ATHANI, DIST. BELAGAVI-591304.
...PETITIONER
(BY SRI SUNIL KHOT, ADVOCATE FOR
SRI RAMACHANDRA A. MALI, ADVOCATE)
AND:
THE AXIS BANK
A BANKING COMPANY DULY INCORPORATED/CONSTITUTED
UNDER THE COMPANIES ACT 1956 AND CARRYING ON THE
BANKING BUSINESS UNDER THE BANKING REGULATION ACT,
Digitally signed by
MALLIKARJUN 1949 AND HAVING ITS REGISTERED OFFICE AT "TRISHUL",
RUDRAYYA THIRD FLOOR, OPP. SAMRAYHESHWAR TEMPLE,
KALMATH
Location: HIGH LAW GARDEN, ELLIS BRIDGE, AHMEDABAD-380006,
COURT OF GUJARAT AND ONE OF ITS BRANCH OFFICE AT ATHANI,
KARNATAKA
REPRESENTED BY ITS MANAGER,
SRI. SARIRAMASANKAR TUMMA,
AGE: 35 YEARS, OCC. MANAGER, AXIS BANK LTD.,
BR.ATHANI, R/O. ATHANI, TQ. ATHANI,
DIST. BELAGAVI-591304.
...RESPONDENT
(BY SRI SUBHASH J. BADDI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397
R/W. 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS IN
C.C.NO.627/2015 ON THE FILE OF THE V ADDL. CIVIL JUDGE AND
JMFC, ATHANI AND ALSO THE RECORDS IN CRIMINAL APPEAL
NO.5030/2021 ON THE FILE OF VII ADDL. DISTRICT AND SESSIONS
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CRL.RP No. 100264 of 2023
JUDGE, BELAGAVI SITTING AT CHIKODI AND SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DTD. 15-
09-2021, MADE IN C.C.NO.627/2015 PASSED BY THE V ADDL. CIVIL
JUDGE AND JMFC ATHANI AND ALSO THE JUDGMENT AND ORDER
CONFIRMING THE CONVICTION AND SENTENCE DTD. 02.03.2023
MADE IN CRIMINAL APPEAL NO.5030/2021 PASSED BY THE VII
ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT
CHIKODI FOR OFFENCE P/U/SEC. 138 OF N.I. ACT AS THE SAME
BEING NOT SUSTAINABLE IN LAW.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
Heard Sri.Sunil Khot for Sri.Ramachandra A. Mali,
learned counsel for the revision petitioner and Sri.Subhash
J Baddi, learned counsel for respondent.
2. Accused who suffered an order of conviction for
the offence punishable under Section 138 of the
Negotiable Instrument Act, 1881, (for short, 'the N.I.Act')
in C.C.No.627/2015 confirmed in Crl.A.No.5030/2021 is
the revision petitioner.
3. Facts in a nutshell for disposal of the revision
petition are as under:
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4. A complaint came to be lodged under Section
200 of the Criminal Procedure Code (for short, 'the
Cr.P.C.') alleging commission of the offence punishable
under Section 138 of the N.I.Act, by contending that
complainant is a banking company constituted under the
Companies Act, 1956 and carrying on the banking
business. Accused who is resident of Muragundi village,
Athani Taluk and Krishna S/o Kallappa Avvannagol @
Pujari wanted financial assistance from the complainant-
bank. Accordingly, accused took sum of Rs.1,72,000/-,
1,50,000/- and Rs.25,692.10 paisa from the complainant-
bank as crop loan and development loan on 19.04.2011
and 28.12.2012 agreed to repay the loan amount with
interest as per the terms and conditions.
5. For the outstanding liability of the accused as
on 25.05.2015, accused issued a cheque bearing
No.03947 in a sum of Rs.3,80,911/- dated 22.05.2015
drawn on the Axis Bank Limited, Athani Branch, which on
presentation came to be dishonored as there was no
sufficient funds in the account of the accused.
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6. Legal notice was issued by the Bank to the
accused demanding the payment covered under the
cheque. There was no compliance to the callings of the
notice. Therefore, action was sought for against the
accused.
7. Learned trial Magistrate after completing the
necessary formalities, summoned the accused and
recorded his plea. Accused pleaded not guilty. Therefore,
trial was held.
8. In order to prove the case of the Bank
Sri.Vijayakumar Tanaji Mane was examined as PW1
representing the Bank and placed on record 20 documents
comprising of dishonored cheque, bank endorsements,
copy of the original notice issued by Special power of
attorney, application given by the accused seeking credit
facility, sanction letter, on demand promissory note,
delivery cum bailable letter, guarantor form, loan form,
Hypothecation agreement, deed of parent, bank statement
of the accused.
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9. Detailed cross examination of PW.1 did not
yield any positive material so as to advance the case of
the accused or to rebut the presumption available to the
complainant under Section 139 of the NI Act.
10. Thereafter, accused statement as is
contemplated under Section 313 Cr.P.C. was recorded by
the learned trial judge wherein accused has denied all the
incriminating materials.
11. In order to rebut the presumption available to
the complainant, accused got examined himself as DW1
and in his oral testimony he tried to impress upon the
Court that the personal cheque of the accused has been
misused by the complainant.
12. Thereafter, learned trial judge heard the
arguments of both the sides and on cumulative
consideration of the oral and documentary evidence on
record, recorded a categorical finding that the material
evidence placed on record on behalf of the complainant
would constitute all necessary ingredients to attract the
offence under Section 138 of NI Act and the defense
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evidence in the form of oral testimony of accused was not
sufficient to rebut the presumption available to the
complainant under section 139 of the NI Act and convicted
the accused for the offence punishable under Section 138
of the NI Act and imposed fine of Rs.3,80,911/- with
interest at 12%. Sum of Rs.30,000/- was also
appropriated towards the defraying expense of the State.
Being aggrieved by the same, accused filed appeal before
the district Court.
13. Learned judge in the First Appellate Court, after
securing the records heard the arguments of the parties
and dismissed the appeal.
14. Being further aggrieved by the same, accused is
before this Court.
15. Sri.Sunil Khot, learned counsel for the revision
petitioner representing Sri.Ramachandra A. Mali,
reiterating the grounds urged in the petition and
contended that both the Courts have not properly
appreciated the material evidence on record and wrongly
convicted the accused for the offence punishable under
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Section 138 of NI Act which resulted in miscarriage of
justice and sought for allowing the revision petition.
16. Counsel for the revision petitioner would
emphasise that awarding 12% interest on the sum of
Rs.3,80,911/- is totally uncalled for and is against the
scheme of the provisions of Section 138 of NI Act.
Therefore, impugned orders need to be set aside.
17. Per contra, Sri.Subhas J.Baddi supports the
impugned orders.
18. Having heard the arguments of both sides, this
Court has perused the material available on record
meticulously. On such perusal of the material on record,
signature of the accused in the said chque and dishonor of
the cheque and issuance of legal notice and non-
compliance thereof is established by placing cogent and
convincing evidence on record.
19. There was no reply issued to the legal notice
nor there was compliance. The above aspects of the
matter prove sufficient to conclude the commission of the
offense as all ingredients are established for the conviction
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of the accused for the offence under Section 138 of NI Act.
Oral testimony of DW1 was not sufficient to rebut the
presumption under Section 138 of NI Act.
20. Therefore, conviction of the accused for the
offence under Section 138 of the NI Act needs no
interference. However, with regard to the sentence is
concerned, learned trial judge grossly erred in awarding
interest at 12% per annum on the amount of
Rs.3,80,911/- and also ordering for Rs.30,000/- as part of
the fine amount towards the defraying expenses of the
State in as much as lies is privy to the parties and no state
machinery is involved.
21. Further, the learned trial Magistrate is entitled
to award the double cheque amount as fine under the
statue but there is no power under Section 138 of NI Act
for ordering interest.
22. Accordingly, the ordering of interest at 12 %
and also awarding sum of Rs.30,000/- towards defraying
expenses of the State needs to be set aside by exercising
the revisional powers vested in this Court under revisional
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jurisdiction as learned First Appellate Court failed to
consider the scheme of Section 138 of the NI Act and also
failed to appreciate that no State machinery is involved.
23. Accordingly, for the above discussion, following:
ORDER
(i) Criminal Revision Petition is allowed in part.
(ii) While maintaining the conviction of the accused
for the offence under Section 138 of the NI Act, the
amount of fine in a sum of Rs.3,80,911/- is to be
recovered and is ordered to be paid as fine amount by the
revision petitioner and the same is to be paid as
compensation to the complainant.
(iii) Time is granted up to 30.03.2025 for deposit of
balance fine amount. Failing which accused shall undergo
simple imprisonment for a period of one year.
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(iv) Awarding interest at 12% and ordering
Rs.30,000/- towards defraying expenses of the State is
hereby set aside.
Sd/-
(V.SRISHANANDA)
JUDGE
AC-Upto para 4
HMB-Para 5 to end
CT:PA
