Karnataka High Court
Ibrahim @ Naushad Kamaruddin vs Shri. Santosh on 19 March, 2025
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2025:KHC-D:5088
CRL.RP No. 100171 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.100171 OF 2018
(397(CR.PC)/438(BNSS))
BETWEEN:
IBRAHIM @ NAUSHAD KAMARUDDIN SHAIKH
AGE: 46 YEARS, OCC. BUSINESS,
R/O. 288, MUJAWAR GALLI,
BELAGAVI.
...PETITIONER
(BY SRI KAMALAKAR M. SANKESHWAR, ADVOCATE FOR
SRI SHRIKANT T. PATIL, ADVOCATE)
AND:
SHRI SANTOSH S/O. BALAKRISHNA HATNURE,
AGE: 40 YEARS, OCC. BUSINESS,
R/O. C/O. HATNUR CERAMICS,
KOLHAPUR CIRCLE, BELAGAVI-590001.
Digitally
signed by
...RESPONDENT
VN
VN
BADIGER
(BY SRI SANTOSH B. MALAGOUDAR, ADVOCATE)
BADIGER Date:
2025.03.29
11:53:05
+0530 THIS CRIMINAL PETITION IS FILED U/S. 397 R/W. 401 OF
CR.P.C. SEEKING THAT THE JUDGMENT PASSED IN CRIMINAL
APPEAL NO.278/2017 DATED 21.07.2018 PASSED BY 11TH ADDL.
DIST. & SESSIONS JUDGE, BELAGAVI, BE SET ASIDE AND
CONSEQUENTLY APPELLANT BE ACQUITTED IN C.C.NO.148/2017 BY
SETTING ASIDE THE ORDER OF THE CONVICTION DATED
06.10.2017 ON THE FILE OF 5TH JMFC COURT, BELAGAVI, FOR THE
OFFENCES P/U/S 138 OF NI ACT.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
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CRL.RP No. 100171 of 2018
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
Heard Sri.Kamalakar M. Sankeshwar, learned counsel
appearing on behalf of Sri.Shrikant T. Patil, learned
counsel for the revision petitioner and Sri.Santosh B.
Malagoudar, learned counsel for the respondent.
2. Accused is the revision petitioner who has
suffered an order of conviction in CC No.1573/2011 (old)
which was renumbered as CC No.148/2017 for the offence
punishable under Section 138 of the Negotiable
Instruments Act and sentenced as under:
"Acting under Section 265 of Cr.P.C. the accused is
hereby convicted for the offence punishable under
Section 138 of the Negotiable Instruments Act.
The accused is sentenced to pay fine of
Rs.16,10,000/- and in default of payment of fine
amount he shall undergo simple imprisonment for a
period of one year. Out of the fine amount
Rs.16,05,000/- shall be paid to the complainant as
compensation and Rs.5,000/- shall be paid to State
towards prosecution expenses."
3. Validity of the order of conviction was
challenged before the First Appellate Court in
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Crl.A.No.278/2017 which came to be dismissed by
considered judgment dated 21.07.2018.
4. Being further aggrieved by the same, accused is
before this Court in this revision.
5. Facts in the nutshell for disposal of the revision
petition is as under:
A complaint came to be lodged under section 200 of
Cr.P.C. alleging the commission of the offence punishable
under Section 138 of Negotiable Instruments Act by
contending that complainant is acquainted with the
accused and accused purchased some open plots in favour
of his family members for a total consideration of
Rs.21,00,000/-. After the sale deed, complainant came to
know that accused has played fraud upon him and
demanded return of money. At that juncture, accused said
to have issued a cheque bearing No.002543 in a sum of
Rs.15,00,000/- dated 27.01.2011 which on presentation
came to be dishonored with an endorsement 'funds
insufficient'. After issuing the notice seeking demand of
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the amount, there was no reply to the same. Accordingly,
complainant sought for action against the revision
petitioner.
6. Learned Trial Magistrate after taking
cognizance, summoned the accused and recorded the
plea. Accused pleaded not guilty and therefore, trial was
held.
7. In order to prove the case of the complainant,
complainant got examined himself as P.W.1 and placed on
record 13 documents which were exhibited and marked as
Exs.P.1 to 13 comprising of cheque, counter slip, legal
notice, postal receipt, postal acknowledgement, consent
undertaking bond, sale deeds, paper publication and notice
punished in newspaper.
8. Thereafter, learned Trial Magistrate recorded
the accused statement as is contemplated under Section
313 of Cr.P.C. wherein, accused has denied the
incriminatory circumstances and did not chose to place
any defence evidence on record to rebut the presumption
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available to the complainant under Section 139 of the
Negotiable Instruments Act.
9. Subsequent thereto, learned Trial Magistrate
heard the arguments of the parties and on cumulative
consideration of the oral and documentary evidence placed
on record, convicted the accused for the offence
punishment under Section 138 of Negotiable Instruments
Act and sentenced as referred to supra.
10. Being aggrieved by the same, accused filed an
appeal before the First Appellate Court in
Crl.A.No.278/2017.
11. Learned Judge in the First Appellate Court in
the light of the arguments put forth on behalf of the
parties, reappreciated the material evidence on record and
found that there was no rebuttal evidence placed on
record and learned Trial Magistrate has rightly read the
presumption available to the complainant under Section
139 of the Negotiable Instruments Act and dismissed the
appeal on merits.
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12. Being further aggrieved by the same, accused is
before this Court, in this revision.
13. Sri.Kamalakar M. Sankeshwar, learned counsel
representing Sri.Shrikant T. Patil, learned counsel for the
revision petitioner reiterating the grounds urged in the
revision petition contended that there is no proper
opportunity granted to the revision petitioner for cross-
examining P.W.1 resulting in miscarriage of justice and
sought for allowing the revision petition.
14. Per contra, Sri.Santhosh B. Malagoudar, learned
counsel for the respondent contended that learned Trial
Magistrate did grant sufficient opportunity which was not
utilized by the revision petitioner. Therefore, complaint of
the revision petitioner that there was no sufficient
opportunity granted for cross-examination of P.W.1 cannot
be countenanced in law and sought for dismissal of the
revision petition.
15. Having heard the arguments of the parties, this
Court perused the material on record meticulously.
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16. On such perusal of the material on record,
especially the order sheet, it is crystal clear that sufficient
opportunity was granted by the Trial Court for cross-
examination of P.W.1. But accused failed to make use of
the same.
17. In the absence of any cross examination,
statements made by P.W.1 on oath coupled with the
documentary evidence has been rightly appreciated by the
learned Trial Magistrate and noting that there was no
rebuttal evidence placed on record, rightly convicted the
revision petitioner for the aforesaid offence which has
been rightly reappreciated by the learned Trial Judge in
the First Appellate Court.
18. Therefore, having regard to the limited scope of
revisional jurisdiction, this Court does not find any grounds
or muchless good grounds to interfere with the order of
Trial Court.
19. Accordingly, the following:
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ORDER
i. Revision petition is meritless and hereby
dismissed.
ii. Amount in deposit is ordered to be withdrawn
by the complainant/respondent under due
identification.
SD/-
(V.SRISHANANDA)
KAV
