Dismissed

Baburao S/O Hanmanthrao Patil v. Prabhakar S/O Kashiraya Muttalgaddi and Anr.

Karnataka HC5 Nov 2018CRL.RP/200058/2017

Case brief

AI extract

What is this about?

In this criminal revision petition against conviction and sentence under Section 138 of the Negotiable Instruments Act for dishonoured cheque, the High Court held that the petitioner failed to substantiate the plea that the cheque was issued for his son-in-law's debt. Finding no error in the Courts below's conclusion that the debt was the petitioner's and dismissing the revision at the admission s

What did the court decide?

The criminal revision petition is dismissed at the admission stage; the order below is not set aside.

Baburao S/O Hanmanthrao Patil Vs Prabhakar S/O Kashiraya… — Cheque Dishonour | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 5^TH DAY OF NOVEMBER, 2018

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BEFORE

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THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA

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CRIMINAL REVISION PETITION NO.200058/2017

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BETWEEN:

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BABURAO S/O HANMANTHRAO PATIL, @ APPARAO AGED 54 YEARS, OCC : AGRICULTURE & BUSINESS, R/O MIG-30, HOUSING BOARD COLONY, KALABURAGI ROAD, SEDAM TALUKA, KALABURAGI DISTRICT.

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...PETITIONER

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(BY SMT. ANURADHA M .DESAI, ADVOCATE FOR SRI MAHANTESH H. DESAI, ADVOCATE)

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AND:

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PRABHAKAR S/O KASHIRAYA MUTTALGADDI, AGE : 38 YEARS, OCC : AGRICULTURE & ADVOCATE, R/O SHIVAJI NAGAR, KALABURAGI.

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THE STATE OF KARNATAKA, THROUGH BRAHAMPUR P.S., REPRESENTED BY ADDL. S.P.P. HIGH COURT OF KARNATAKA, KALABURAGI BENCH.

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... RESPONDENTS

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(BY SRI N. KRISHNACHARYA AND SRI RAMACHANDRA K. ADVOCATES FOR R1 ABSENT; SRI MALLIKARJUN SAHUKAR, HCGP FOR R2)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF CR.P.C., PRAYING TO ALLOW THE REVISION PETITION BY SETTING ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE HON’BLE COURT OF IV ADDL. CIVIL JUDGE (JR.DN.) AND JMFC AT KALABURAGI IN C.C.NO.2552/2011 DATED 21.11.2013 AND ALSO THE JUDGMENT PASSED BY THE HON’BLE COURT OF III ADDL. DIST. AND SESSIONS JUDGE AT KALABURAGI IN CRL. APPEAL NO.76/2013 DATED 09.02.2017 AND ACQUIT THE REVISION PETITIONER FOR THE ALLEGED OFFENCE.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner has called in question the concurrent findings recorded by the Courts below holding the petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter, referred to as ‘the Act’).

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The case of the respondent/complainant is that

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he had lent a hand loan of Rs.50,000/- to the petitioner herein to meet his necessities and in repayment thereof, the petitioner issued the subject cheque, which was dishonored for insufficient funds. The legal notice issued by him was not responded by the petitioner. Hence, he initiated legal action against the petitioner under Section 138 of the Act before the trial Court.

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During trial, respondent/complainant produced the original cheque Ex.P.1, Bank endorsement Ex.P.2, copy of the legal notice Ex.P.3, postal receipt Ex.P.4 and postal acknowledgement Ex.P.5. In rebuttal, the accused examined himself as DW.1 and his son-in-law as DW.2.

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The accused took up a plea that his son-in-law namely, DW.2 had financial transaction with the complainant and in respect of the said transaction, the petitioner issued the subject cheque on behalf of his sonin-law/DW.2 and hence, there was no legally enforceable

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debt or liability in discharge whereof he could have issued the subject cheque.

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Both the Courts below have negated the plea set up by the petitioner and have held that the cheque in question was issued by the petitioner in respect of the legally enforceable debt and the same having been dishonored for want of funds have found the petitioner guilty of the offence under Section 138 of the Act.

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Smt. Anuradha M. Desai, learned counsel for the petitioner submits that the transaction between DW.2 and the complainant is admitted by the complainant in his cross-examination. As a result, the petitioner/accused has successfully rebutted the presumption attached to the said cheque, which has not been considered by the Courts below. The first revisional Court has committed serious illegality in observing that there was collusion between DWs.1 and 2. The revisional Court has failed to appreciate the evidence adduced by the petitioner and DW.2, which

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has resulted in miscarriage of justice and hence seeks intervention of this Court under Section 397 of Cr.P.C.

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Repelling the contentions, learned counsel for the respondent contends that the Courts below have appreciated the pleadings and the evidence adduced by the parties in proper prospective. The petitioner having failed to produce any reliable material to substantiate the plea set up by him, this Court in exercise of the revisional jurisdiction under Section 397 of Cr.P.C., cannot interfere with the concurrent findings recorded by the Courts below and hence, seeks to dismiss the petition.

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Heard the parties. Considered the submissions and perused the records. The petitioner does not dispute the issuance of the subject cheque. He has also not disputed his signature and the contents of the cheque. The only plea set up before the Courts below is that the said cheque was issued by him towards the discharge of debt due by his son-in-law/DW.2 to the complainant. Even

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though the accused and his son-in-law are examined before the Courts below, neither the petitioner nor DW.2 have produced any material to substantiate the alleged transaction between the complainant and DW.2. On the other hand, in the course of the cross-examination of PW.1, it is elicited that there was an agreement between DW.2 and the complainant with regard to the sale of property and the said agreement was mutually cancelled on 25.08.2009. The subject cheque is dated 20.08.2010. If in fact, DW.2 had handed over the cheque drawn by his father-in-law namely, the petitioner herein in satisfaction of the debt due by DW.2 to the complainant in all probably the said issue would have been settled when the agreement itself was cancelled between the complainant and DW.2 and DW.2 and the question of presenting the said cheque for encashment would not have arisen at all. If the said cheque was not encashed DW.2 would have taken steps to take return of the said cheque. No such material is produced before the Court. The accused has not even issued a reply to the legal notice issued by the

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complainant. It is only during trial, the accused has come forward with the above story. Unfortunately, the said defence has not been substantiated with any cogent evidence. Except the self serving statements of DWs.1 and 2, no material is produced to show that the accused had handed over the cheque to DW.2, who in turn had passed it on to the complainant. On the other hand, the answers elicited from the mouth of PW.1 clearly indicate that the transaction between DW.2 and the complainant had come to an end much earlier to the issuance of the cheque in question.

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On going through the impugned judgments, I

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find that the Courts below have considered all these aspects of the case and have rightly come to the conclusion that the cheque in question was issued by the petitioner towards the discharge of the debt due by him to the complainant. I do not find any error or perversity either in appreciation of evidence or in the findings recorded by the Courts below. Petitioner has not been able

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to point out any error or illegality in the impugned judgment calling for interference under Section 397 of Cr.P.C. The petition is devoid of merits and the same is liable to be dismissed.

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Accordingly, the petition is dismissed at the admission stage itself.

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Sd/JUDGE

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RSP

Baburao S/O Hanmanthrao Patil v. Prabhakar S/O Kashiraya Muttalgaddi and Anr.

Case brief

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Baburao S/O Hanmanthrao Patil v. Prabhakar S/O Kashiraya Muttalgaddi and Anr.

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