Dismissed

Vidhydhar Yoga Kurne v. Kempanna Kallappa Yadgude

Karnataka HC23 Feb 2021CRL.RP/2148/2012

Case brief

AI extract

What is this about?

The High Court dismissed the criminal revision petition challenging conviction and sentence under Section 138 of the N.I. Act for cheque dishonour. It held there was no error in conviction noting the accused admitted receiving the cheque but failed to pay the full amount, though a recurring deposit was confiscated to the State.

What did the court decide?

Revision petition dismissed. Balance fine of Rs.2,000/ to be confiscated to the State within two weeks.

Vidhydhar Yoga Kurne Vs Kempanna Kallappa Yadgude — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF FEBRUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE K. NATARAJAN

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CRIMINAL REVISION PETITION NO.2148 OF 2012

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BETWEEN:

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SHRI VIDHYDHAR YOGA KURNE AGED 55 YEARS, OCC: EX-MAN RESIDENT OF NO.1757, RAMTEERTH NAGAR BELGAUM.

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... PETITIONER

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(BY SRI S.B. PATIL, ADVOCATE)

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AND:

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SHRI KEMPANNA KALLAPPA YADGUDE AGED 42 YEARS, OCC: ADVOCATE RESIDENT OF PLOT NO.24 RAMNAGAR BELGAUM.

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.. RESPONDENT

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(BY SRI SANTOSH B. RAWOOT, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 18-5-2011 PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS IIBELGAUM IN CRIMINAL CASE NO.726 OF 2009 AND CONFIRMED BY III ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELGAUM, IN CRIMINAL APPEAL NO.55 OF 2011 DATED 29-2-2012.

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THIS CRIMINAL REVISION PETITION IS COMING ON FOR ORDERS THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This revision petition is filed by the petitioner under Section 397 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C.’) for setting aside the judgment of conviction and sentence passed by the Judicial Magistrate First Class IIBelgaum (for short, ‘the trial Court’) in Criminal Case No.726 of 2009 and upheld by the III Additional Sessions Judge, Belgaum, (for short, ‘the First Appellate Court’) in Criminal Appeal No.55 of 2011 dated 29-2-2012, for having convicted him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the N.I. Act’).

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Heard the learned counsel for the parties. Ranks of

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the parties before the trial Court are retained for the sake of convenience.

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The case of the complainant is that, the accused and the complainant are known to each other for last five year. Accused used to take hand loans from the complainant, whenever he was in financial difficulty. In August, 2008, the

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accused took hand loan from the complainant to the tune of Rs.85,000/- with an assurance that he will repay the same within November, 2008, but he did not pay the same. Hence, the accused issued cheque for Rs.85,000/- in favour of the complainant. When the same was presented to the Bank, it was dishonoured with an endorsement as ‘funds insufficient’. Notice has been issued, but the accused has not paid the cheque amount. Hence, the complainant filed a private complaint for the offence under Section 138 of the N.I. Act.

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After appearance of the accused, substance of accusation was recorded, read over and explained to the accused, he pleaded not guilty and claimed to be tried. Subsequently, to prove the case, the complainant examined himself as P.W.1 and got marked seven documents as per Exs.P.1 to P.7. Statement of the accused under Section 313 of the Cr.P.C. was recorded and denied all incriminating material against him. To support his case, the accused examined himself as D.W.1 and got marked two documents as per Exs.D.1 and

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D.2. After hearing the arguments, the trial Court found guilty

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and convicted the accused and sentenced to pay a fine of Rs.87,000/- and in default of payment of fine, to undergo simple imprisonment for six months. Out of said fine amount, Rs.85,000/- was ordered to the given to the complainant as compensation. Being aggrieved by the said order, the accused approached the First Appellate Court in Criminal Appeal No.55 of 2011, which came to be dismissed on 29-2-2012. Hence, this revision petition.

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Learned counsel for the petitioner-accused has

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contended that the trial Court has not appreciated the evidence of the accused and the accused has already paid the amount to the complainant and there is nothing pending. Merely issuance of the cheque cannot be considered that the accused committed the offence under Section 138 of the N.I. Act. Hence, he prayed for setting aside the judgment of conviction and sentence passed by the trial Court and upheld by the First Appellate Court.

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Per contra , learned counsel for the respondent-

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complainant has supported the judgments passed by both the Courts below and contended that, the accused has paid Rs.10,000/-, Rs.4,000/- and Rs.5,000/- before the trial Court and has not paid the entire amount. Therefore, the trial Judge has rightly convicted the accused. Hence, he prayed for dismissal of the revision petition.

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Upon considering the material on record and the judgments, the relationship between the complainant and the accused is not in dispute. Issuance of the cheque and signature as per Ex.P.1 is also not in dispute, dishonour of the cheque as per Ex.P.2 is also not in dispute, Ex.P.3 is the cheque dishonour intimation of the Bank, Exs.P.4 and P.5 are the postal acknowledgments, Ex.P.6 is the copy of the legal notice, which clearly reveals that after dishonour of the cheque, the accused gave reply. The accused has also examined himself as D.W.1 and stated that he is not liable to pay and produced Exs.D.1 and D.2. Considering the evidence on record and if at all, the

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accused not borrowed any money from the complainant, the question of making payment before the trial Court before the commencement of the trial Court does not arise. The ordersheet of the trial Court reveals that on 16-2-2010, the complainant himself filed a memo stating that the accused has paid Rs.10,000/- for him and the case was adjourned to 23-3-2010. Again the complainant filed a memo for having received Rs.4,000/- from the accused and again on 24-4-2010, the accused has paid Rs.5,000/- to the complainant in the open Court and the same is endorsed in the order-sheet. Thereafter, the accused remained absent. Non-bailable warrant has been issued. Thereafter, trial was commenced against the accused. The accused took the contention that, there is nothing payable to the complainant. There is nothing to disbelieve the evidence of P.W.1 and issuance of cheque. The trial Court and First Appellate Court rightly convicted the accused for the offence punishable Section 138 of the N.I. Act. Though the trial Court has directed the accused to pay Rs.87,000/-, but not deducted Rs.19,000/-, which is already received by the complainant from

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the accused and the same is admitted by the complainant by filing a memo.

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Further, this Court on 21-8-2012, while suspending the sentence, when the accused was in custody, directed the accused to pay the remaining balance of Rs.66,000/- (Rupees sixty-six thousand only) and the same is deposited before this Court and the said amount is received by the complainant through cheque on 11-9-2012.

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Considering the facts and circumstances of the case, I am of the considered view that, there is nothing to interfere with the judgment of conviction and sentence passed by the trial Court and upheld by the First Appellate Court. Accordingly, the revision petition is dismissed .

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With regard to fine amount, the petitioner-accused has already paid Rs.85,000/to the respondent-complainant towards compensation and Rs.2,000/- (Rupees two thousand

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only) shall be confiscated to the State within two weeks’ from the date of receipt of a certified copy of this order.

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Sd/JUDGE

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kvk

Vidhydhar Yoga Kurne v. Kempanna Kallappa Yadgude

Case brief

What is this about?

What did the court decide?

Vidhydhar Yoga Kurne v. Kempanna Kallappa Yadgude

Case brief

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What did the court decide?

What the court decided

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