Karnataka High Court
Shivaraj S/O Paramehswarappa Angadi vs Shivananda S/O Honnappa Doddamani on 10 March, 2025
Author: V.Srishananda
Bench: V.Srishananda
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CRL.RP No. 100222 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.100222 OF 2023
(397(CR.PC)/438(BNSS))
BETWEEN:
SHIVARAJ S/O. PARAMEHSWARAPPA ANGADI,
AGE: 55 YEARS,
OCC. BUSINESS AND REAL ESTATE AGENT,
R/O. KALANGI, TQ. SIRSI,
DIST. UTTARA KANNADA-581358.
...PETITIONER
(BY SRI VISHWANATH HEGDE, ADVOCATE)
AND:
SHIVANANDA S/O. HONNAPPA DODDAMANI,
AGE: 65 YEARS, OCC. AGRICULTURIST,
R/O. SHIRAMAPURA, TQ. HANGAL,
DIST. HAVERI-581104.
Digitally
signed by V
...RESPONDENT
VN
N BADIGER
(BY SRI SIDDAPPA S. SAJJAN, ADVOCATE)
BADIGER Date:
2025.03.18
15:26:20
+0530
THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397
R/W. 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS IN
CRIMINAL APPEAL NO. 72/2022 ON THE FILE OF ADDL. DISTRICT
AND SESSIONS JUDGE, FTSC-I, HAVERI, AND RECORDS IN C.C.NO.
48/2016 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC HANGAL
AND SET ASIDE THE JUDGMENT DATED 08.02.2023 PASSED BY
ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-I, HAVERI IN
CRIMINAL APPEAL NO. 72/2022 CONSEQENTLY SET ASIDE THE
JUDGMENT DATED 22.08.2022 PASSED IN C.C.NO.48/2016 BY
SENIOR CIVIL JUDGE AND JMFC HANGAL FOR THE OFFENCE
P/U/SEC. 138 OF NI ACT.
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CRL.RP No. 100222 of 2023
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.Vishwanath Hegde, advocate for petitioner
and Sri.Siddappa S. Sajjanavar, advocate for respondent.
2. Though the matter is listed for admission, by
the consent of the parties, matter is taken up for final
disposal.
3. Accused who suffered an order of conviction in
CC No.48/2016 after due trial for the offence punishable
under Section 138 of Negotiable Instruments Act, 1881
(for short hereinafter 'NI Act") and directed to pay a sum
of Rs. 5,10,000/- as fine amount, as against the cheque
amount of Rs.4,00,000/- and ordered sum of
Rs.5,08,000/- as the compensation to the complainant and
sum of Rs.2,000/- towards the defraying expenses of the
State, which got confirmed in Crl.A.No.72/2022 is the
revision petitioner.
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4. Facts in the nutshell which are utmost
necessary for disposal of the revision petition are as
under:
4.1 A complaint came to be lodged under Section 200
of Cr.P.C., alleging the commission of the offence under
Section 138 of NI Act by contending that complainant is a
resident of Srirampura village, Hangal Taluk and he is an
agriculturist by profession. He owns eight acres of irrigated
land in Samvasagi village, Hangal taluk wherein he has
grown sugarcane, cotton, paddy, maize and other crops
and he had annual income of Rs.6 lakhs to 7 lakhs from
agriculture. Apart from agriculture, complainant has also
indulged in the business of real estate. Accused used to
visit Hangal sub-registrar office regularly and in that
connection there was a introduction of complainant to the
accused in respect of real estate business.
4.2 During such acquaintance, accused offered a
proposal to the complainant for sale of 4 acres of landed
property, out of 11 acres, 33 guntas in land bearing
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Re.Sy.No.171/E/2 of Huluginakoppa village owned by
Prabhakara Narayana Hegde for a sum of Rs.10,00,000/-.
4.3 In that connection there was a meeting with
Prabhakara Narayana Hegde on 08.11.2010 and talks with
regard to the same were held in the presence of Ramanna
Tippanna Taravanda and Riyazahamad Babajanasab
Kundagola of Desai kallapura village. At that juncture, to
set right the documents, sellers wanted some time. In the
month of April-2014, accused met the complainant and a
sum of Rs.4,00,000/- was taken by accused as hand loan
to meet his immediate requirements with a promise to
repay the same.
4.4 When there is no repayment made by the accused
as demanded. Ultimately, accused issued a cheque bearing
No.114365 dated 14.08.2014 drawn on State Bank of
India, Malagi branch which on presentation came to be
dishonoured with an endorsement "funds insufficient".
Legal notice was issued on 26.08.2014 which was refused
by the accused and there was no compliance to the
callings of notice nor there any reply.
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4.5 As such complainant sought action against the
accused for the offence under Section 138 of the NI Act.
5. Learned trial judge after completing necessary
formalities summoned the accused. Learned trial judge
thereafter followed the dictum of Hon'ble Apex Court in the
case of Indian Bank Association and others Vs. Union
of India and others1 and treated the sworn statement
affidavit as the examination in chief. On behalf of the
complainant one of the mediator was present at the time
of talks viz., Riyaz Babajanasab Kundagola was examined
as PW2.
6. Accused did not place any defense evidence and
in accused statement, denied the incriminating materials.
Thereafter learned trial Magistrate heard the parties and
on considering the oral and documentary evidence placed
on record convicted the accused for the offence punishable
under Section 138 of the NI Act and sentenced as referred
supra.
(2014) 5 SCC 590
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7. Being aggrieved by the same, accused filed an
appeal before the District Court in Crl.A.No.72/2022.
8. Learned judge in the First Appellate Court after
securing the records, heard the arguments of both sides
and dismissed the appeal filed by the accused. Thereafter,
accused is before this Court in this revision petition.
9. Sri.Vishwanath Hegde, learned counsel
appearing for the accused has reiterated the grounds
urged in the revision petition and contended that even in
the absence of any defence evidence placed on record,
accused can demonstrate from the material placed on
record, especially the cross examination of the prosecution
witnesses which would be sufficient enough to rebut the
presumption available to the complainant under Section
139 of NI Act following the legal principles enunciated in
the case of Rohitbhai Jivanlal Patel Vs. State of
Gujarath.2 and therefore, this Court may consider the
2019(18) SCC 106
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material placed on record and set aside the judgment of
both the Courts by allowing the revision petition.
10. Per contra, Sri Siddappa Sajjan, learned
counsel for respondent supports the impugned order.
11. Having heard the parties in detail, this Court
perused the material on record meticulously.
12. On perusal of the material on record, it is
crystal clear that the cheque is issued by the accused and
signatures found therein are that of the accused is not in
dispute. Cheque admittedly came to be dishonoured with
an endorsement 'funds insufficient'. Legal notice is
refused by the accused. There was no compliance to the
notice nor reply being sent to the legal notice, complainant
has fulfilled all necessary requirements to draw
presumption under Section 139 of NI Act.
13. No doubt, the presumption under Section 139
of NI act is a rebuttable presumption. In order to rebut
the presumption, in every case, there is no need for the
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accused to enter the witness box and place evidence.
Evidence otherwise placed on record in the form of cross
examination of complainant witnesses and documentary
evidence can be made use of for rebuttal of permission.
Then the onus again shifts on the complainant to place
additional evidence.
14. Applying of such test to the case on hand, in
the cross-examination of PW-1 and 2 except suggesting
that a false case has been foisted against the accused, no
other material evidence is placed on record.
15. When once the cheque is admitted and
signature is not disputed, necessarily the accused has to
be entered into witness box and then depose before the
Court under what circumstances he parted away with the
cheque.
16. In the absence of any such rebuttal evidence
placed on record, Trial Judge drawing presumption under
Section 139 of NI Act and learned Judge in the First
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Appellate Court on re-appreciating the material on record
conviction being maintained, needs no interference by this
Court.
17. Further, as against the cheque amount of
Rs.4,00,000/-, learned Trial Judge has awarded a sum of
Rs.5,10,000/- as the compensation of which a sum of
Rs.2,000/- was ordered to be paid as defraying expenses
of the State.
18. Awarding a sum of Rs.2,000/- towards
defraying expenses of the State cannot be countenanced
in law in view of the fact that the lis is privy to the parties
and no State machinery is involved. Accordingly, the said
portion of the sentence needs to be set aside. Taking note
of the fact that the cheque is issued in the year 2014,
reducing the fine amount from Rs.5,08,000/- to
Rs.5,00,000/- would meet the ends of justice.
Accordingly, the following :
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ORDER
(i) Criminal Revision Petition is allowed in part.
(ii) While maintaining the conviction of the
accused for the offence punishable under
Section 138 of NI Act, fine amount of
Rs.5,10,000/- ordered by the Trial
Magistrate confirmed by the First Appellate
Court is reduced to Rs.5,00,000/-.
(iii) Entire sum of Rs.5,00,000/- is ordered to
be paid as compensation to the
complainant on or before 15.04.2025,
failing which, the accused shall undergo
Simple imprisonment for a period of one
year.
(iv) A sum of Rs.2,000/- ordered by the Trial
Magistrate confirmed by the First Appellate
Court towards the defraying expenses of
the State is set aside.
(v) The amount in deposit is ordered to be
withdrawn by the complainant under due
identification.
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Office is directed to return the Trial Court records
with a copy of this order for issue of modified conviction
order.
SD/-
(V.SRISHANANDA)
JUDGE
HMB/NAA
CT:PA
