Dismissed

Sri.Annappa Kallappa Nayar v. Sri.Iranna Kallappa Galibi

Karnataka HC22 Mar 2021CRL.RP/100224/2019

Case brief

AI extract

What is this about?

High Court of Karnataka dismissed a criminal revision petition filed under Sections 397 and 401 Cr.P.C. against a conviction and sentence for an offence under Section 138 of the Negotiable Instruments Act, holding the lower Courts were justified in convicting the accused. The Court noted the appellant failed to deposit the cheque amount and did not substantiate his defence.

What did the court decide?

Criminal Revision Petition is dismissed. Revocation of previous order suspending sentence is not considered as the petition is disposed of.

Sri.Annappa Kallappa Nayar Vs Sri.Iranna Kallappa Galibi — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G.UMA

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CRIMINAL REVISION PETITION No.100224/2019

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BETWEEN:

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SRI.ANNAPPA S/O KALLAPA NAYAR, AGED ABOUT: 38 YEARS, OCC: WELDING WORK, R/O: NYASARGI, TAL: MUNDGOD, DIST: UTTARA KANNADA-581349.

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…..REVISION PETITIOINER

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(BY SRI:ANNAPPA, PARTY-IN-PERSON)

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AND:

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SRI.IRANNA S/O KALLAPPA GALIBI, AGED ABOUT:35 YEARS, OCC: AGRICULTURE, R/O: HUNAGUND, TQ: MUNDGOD, DIST: UTTARA KANNADA-581349.

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……RESPONDENT

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(BY SRI: KIRAN KUMAR S. CHATTIMATH, ADV. FOR SRI:DINESH M. KULKARNI, ADV.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF Cr.P.C. SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 18.09.2018 PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, U.K., KARWAR, SITTING AT

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SIRSI IN CRL.A.NO.5012/2016 AND CONSEQUENTLY ACQUIT THE PETITIONER BY SETTING ASIDE THE JUDGMENT AND CONVICTION DATED 04.02.2016 IN C.C.NO.184/2013 PASSED BY THE CIVIL JUDGE AND JMFC COURT, MUNDGOD. THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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Even though the matter is listed for admission, with the consent of learned counsel for both the parties, it is taken up for final hearing.

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The revision petitioner/accused is assailing the impugned judgment of conviction and order of sentence dated 04.02.2016 passed in C.C.No.184/2013, on the file of the learned Civil Judge and JMFC, Mundgod (for short ‘the Trial Court’), convicting him for the offence punishable under Section 138 of the Negotiable instruments Act (hereinafter referred to as ‘the N.I.Act’ for the sake of brevity) and sentencing him to pay a fine of Rs.2,05,000/- and in default to pay fine, to undergo simple imprisonment for a period of six months, which is confirmed in Criminal Appeal No.5012/2016 dated 18.09.2018 passed by the I Additional District and Sessions Judge, U.K., Karwar, sitting at Sirsi.

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Brief facts of the case are that, the respondent herein as the complainant filed private complaint against the accused before the Trial Court in PCR No.18/2013, alleging commission of the offence punishable under Section 138 of the N.I.Act. It is stated that the accused had availed hand loan of Rs.2,00,000/- during December 2011. In discharge of the said hand loan, cheque bearing No.344224 dated 01.01.2013 for Rs.2,00,000/- was issued. The complainant presented the said cheque for encashment. But the same was dishonoured, as there was insufficient funds in the account of accused. The complainant issued legal notice to the accused, informing him about the dishonour of cheque and calling upon him to repay the cheque amount. The notice was served on the accused, but the accused neither replied nor complied with the demands made therein. Thereby, the accused has committed the offence punishable under Section 138 of the N.I.Act and accordingly the private complaint was filed against the accused.

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The Trial Court took cognizance of the offence and registered Criminal Case No.184/2013 against the accused for

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the said offence. The accused appeared before the Trial Court and pleaded not guilty for the charges leveled against him. Thereafter, the complainant got examined himself as PW.1 and got marked Exs.P1 to P6 in support of his contention. The accused has denied all the incriminating materials available on record and examined himself as DW1. The Trial Court after taking into consideration all these materials on record came to the conclusion that the complainant is successful in proving the guilt of the accused for the offence punishable under Section 138 of the N.I.Act, beyond reasonable doubt and proceeded to convict the accused as stated above.

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Being aggrieved by the impugned judgment of conviction and order of sentence passed by the Trial Court, the accused had preferred Criminal Appeal No.5012/2016 before the First Additional District and Sessions Judge, Uttara Kannada, Karwar, sitting at Sirsi (for short ‘the Appellate Court’). The Appellate Court after taking into consideration the materials placed on record, came to the conclusion that there are no merits in the case and dismissed the appeal. Being aggrieved by the impugned judgment of conviction and order of sentence passed by the Trial Court, which was

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confirmed by the Appellate Court, the accused is before this Court in revision.

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Heard Sri.Kiran Kumar S. Chattimath, counsel for

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Sri.Dinesh M Kulkarni, learned counsel for the respondent.

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Initially, the revision petitioner was represented by his advocate. On 27.09.2019, this Court allowed I.A.No.1/2019 filed by the revision petitioner and the order of sentence passed by the Trial Court was suspended subject to conditions. The accused was directed to deposit 75% of the cheque amount within a period of six weeks before the Trial Court. It is stated that the said order passed by this Court is not complied with by the accused. By order dated 03.03.2021, this Court noted that 75% of the cheque amount is not yet deposited. It is also noted that the learned counsel Sri.Vishwanath S. Bichagatti, representing the revision petitioner filed a memo seeking retirement. He has produced

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the copy of notice along with the postal receipt for having issued notice to the revision petitioner. Considering the same, learned counsel was permitted to retire. Thereafter, Court notice was issued to the revision petitioner, which was

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personally served on him, as per the endorsement of Police Inspector of Mundgod Police Station. Thereafter, the revision petitioner neither appeared personally nor engaged the services of another counsel.

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Learned counsel for the respondent submitted that the revision petitioner neither complied with the directions of this Court nor appeared before this Court and addressed his argument on merits.

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Perused the materials on record including the Trial Court records, in the light of the contentions taken by the revision petitioner in the petition and in view of the contentions urged by the learned counsel for the respondent. The point that would arise for my consideration is:

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“Whether the revision petitioner has made out any grounds for interference in the impugned judgment of conviction and order of sentence passed by the Trial Court, which was confirmed by the Appellate Court?”

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My answer to the above point is in ‘Negative’ for

the following:

REASONS

It is the contention of the complainant before the

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Trial Court that the accused had borrowed an amount of Rs.2,00,000/- during December 2011 and issued cheque for Rs.2,00,000/- towards discharge of the legally recoverable debt. The said cheque was dishonoured, as there was insufficient funds in the account of the accused. Even after issuance of legal notice, accused has not repaid the cheque amount and thereby, he has committed the offence punishable under Section 138 of the N.I.Act.

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To prove this contention, the complainant examined himself as PW1. He was cross examined at length by the learned counsel representing the accused before the Trial Court. Even after cross examination at length, nothing has been elicited from the complainant to disbelieve his version. It is suggested to the witness that he had not lent any amount to the accused and the accused had not issued the cheque in question. All these suggestions put by the learned counsel for the accused were denied by the witness.

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Ex.P1 is the cheque bearing No.344224 dated 01.01.2013 for Rs.2,00,000/- drawn by the accused in favour of the complainant. Ex.P2 is the memo issued by the Bank dishonoring the cheque in question, as there was insufficient funds in the account of the accused. Ex.P3 is the memo issued by the Collecting Banker i.e. Karnataka Vikas Grameena Bank, returning the cheque to the complainant. Ex.P4 is the legal notice dated 12.02.2013, got issued by the complainant to the accused calling upon him to repay the cheque amount. Ex.P5 is the postal acknowledgment for having served the legal notice on him. Ex.P6 is the private complaint lodged by the complainant before the Trial Court.

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The accused denied all the incriminating materials available on record and got examined himself as DW1. He contended that he had undertaken welding work of one Kulkarni Master and had received advance of Rs.1,00,000/from him as security. He issued the cheque in question in his favour. Subsequently welding work was completed. He received his charges from Kulkarni Master, but he had not returned the cheque in question and now the complainant has misused the said cheque. Therefore, the accused contended

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that he never borrowed any amount nor issued any cheque in favour of the complainant and prays for dismissal of the petition.

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The accused was subjected to cross examination

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by the learned counsel representing the complainant. During cross examination, witness stated that he has not filed any complaint against the person, to whom he had issued the cheque. He admitted that Ex.P5- acknowledgment bears his signature. He also admits that he is in receipt of the legal notice got issued by the complainant. He specifically stated that, he has neither repaid the amount nor issued any reply notice. Witness stated that there were 5 to 6 cheque bounce cases registered against him in Mundgod. The complainant had also filed such complaint against him, which had ended in compromise. In one such matter, he was convicted. Witness admitted that Ex.P1-cheque belongs to him and it bears his signature as per Ex.P1(a).

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After taking into consideration all these materials

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on record, it is clear that the accused specifically admits Ex.P1 as the cheque issued by him. He also admits his signature

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found therein i.e., Ex.P1(a). When the accused admits the cheque and the signature found therein, the presumption under Sections 118 and 139 of the N.I. Act comes into operation and then, it is for the accused to rebut the said presumptions.

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In the present case, the accused cross examined the complainant examined as PW1. During such cross examination, it was denied that he had borrowed any amount from the complainant and issued the cheque in question. However, when the accused stepped into the witness box and examined as DW1, he has taken the defence that the cheque in question was issued to one Kulkarni Master, while undertaking welding work. Even after compliance of welding work, payment was due. Kulkarni Master had not returned the cheque in his favour. The accused had not taken any action against Kulkarni Master, nor had issued any instructions to his Banker to stop payment of the cheque.

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It is pertinent to note the tenor of cross examination to PW1 with regard to issuance of cheque-Ex.P1. It does not suggest any such defence taken by the accused. It

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is only when the accused stepped into the witness box, he admits his signature found on the cheque and took some defence stating that when the accused undertook welding work of Kulkarni Master. But what necessitated him to issue the cheque in question in his favour, has not been explained. Even though, the accused tried to take defence at the fag end of trial, the same is not probabilised by him. By no stretch of imagination, it can be believed that the accused who had undertaken welding work had issued cheque in favour of the person who engaged his services. The contention of the accused that the said Kulkarni Master has misused the cheque in question is not probabalised. Therefore, I am of the opinion that the complainant is successful in proving the guilt of the accused beyond reasonable doubt and the accused failed to probabalise his defence and therefore, he is liable for conviction.

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I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court and confirmed by the Appellate Court. Both the Courts have taken into consideration all these materials on record and proceeded to convict the accused for the offence punishable

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under Section 138 of the N.I.Act. I do not find any reason to interfere with the same. It is found that the accused is dragging the proceedings and has not paid the amount to the complainant without any defence since from 2013, till today. There is absolutely no material in support of the contention taken by the accused. Hence, I am of the opinion that revision petition is liable to be dismissed as devoid of merits. Accordingly I answer the above point in ‘Negative’.

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The Criminal Revision Petition is dismissed.

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Sd/JUDGE

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KGK

Sri.Annappa Kallappa Nayar v. Sri.Iranna Kallappa Galibi

Case brief

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Sri.Annappa Kallappa Nayar v. Sri.Iranna Kallappa Galibi

Case brief

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