Dismissed

Mehaboob Sab S/O. Shamid Sab v. Bargur Allabhakshisab S/O. Khasimsab

Karnataka HC14 Oct 2022CRL.RP/2165/2013

Case brief

AI extract

What is this about?

The Court dismissed a criminal revision petition challenging the conviction under Section 138 of the Negotiable Instruments Act. The Court held that statutory presumptions were established by attesting witnesses and evidence of the promissory note, finding no illegality or perversity in the concurrent findings of the trial and appellate courts.

What did the court decide?

The criminal revision petition is dismissed as it is prayed to be allowed.

Mehaboob Sab S/O. Shamid Sab Vs Bargur Allabhakshisab… — Cheque Dishonour | Karnataka HC (2022)

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CRL.RP No. 2165 of 2013

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14^TH DAY OF OCTOBER, 2022 BEFORE

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THE HON'BLE MR JUSTICE S.RACHAIAH

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CRIMINAL REVISION PETITION NO. 2165 OF 2013

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BETWEEN:

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MEHABOOB SAB S/O. SHAMID SAB AGE: 62 YEARS, OCC:BUSINESS R/O. GANGAVATHI

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DIST: KOPPAL

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…PETITIONER

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(BY SRI. NEELENDRA.D.GUNDE, ADVOCATE)

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AND:

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BARGUR ALLABHAKSHISAB S/O. KHASIMSAB SINCE DECEASED, REPRESENTED BY LRs.,

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(CAUSE TITLE AMENDED V/C/O. DT.17.02.2022)

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Digitally signed by SUJATA SUBHASH PAMMAR Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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1A. SMT JANNATBI W/O LATE BARGUR ALLABHAKSHISAB AGE. 51 YEARS, OCC. HOUSE HOLD, R/O MANGALORE ENTERPRISE, NEAR BERUNEE MASJID BUS-STAND, GANGAVATHI, KOPPAL DISTRICT.

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1B. B. SHEIKH AHMADPASHA S/O LATE BARAGUR ALLABHAKSHISAB AGE. 24 YEARS, OCC. BUSINESS R/O MANGALORE ENTERPRISE, NEAR BERUNEE MASJID BUS-STAND, GANGAVATHI, KOPPAL DISTRICT.

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CRL.RP No. 2165 of 2013

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1C. KUM. BIBI JAINAB D/O LATE BARAGUR ALLABAKSHISAB AGE. 20 YEARS, OCC. STUDENT, R/O MANGALORE ENTERPRISE, NEAR BERUNEE MASJID BUS-STAND, GANGAVATHI, KOPPAL DISTRICT.

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1D. KUM BIBI NOORNISHA D/O LATE BARAGUR ALLABAKSHISAB AGE. 15 YEARS, OCC. STUDENT, R/O MANGALORE ENTERPRISE, NEAR BERUNEE MASJID BUS-STAND, GANGAVATHI, KOPPAL DISTRICT.

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SINCE MINOR, REPRESENTED BY HER NATURAL GUARDIAN/MOTHER, RESPONDENT NO.1A.

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…RESPONDENTS

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(BY SRI. KIRAN ANGADI, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W S.401 OF CR.P.C. SEEKING TO ALLOW THIS CRIMINAL REVISION PETITION BY SETTING ASIDE THE JUDGMENT AND ORDER DATED 16.03.2013 PASSED IN CRL.A.NO.40/2012 BY THE FAST TRACK COURT, KOPPAL, DISMISSING THE APPEAL FILED BY THE PETITIONER/ACCUSED HEREIN & CONFIRMING THE ORDER OF CONVICTION, PASSED IN C.C.NO.145/2011 BY THE PRL. CIVIL JUDGE & JMFC, GANGAVATHI, DATED 02.07.2012, CONVICTING THE ACCUSED FOR THE OFFENCE P/U/S 138 OF THE NI ACT, AND SENTENCING HIM TO PAY A FINE OF RS.3,40,500/- WITH A DEFAULT CLAUSE.

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THIS CRIMINAL REVISION PETITION, COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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CRL.RP No. 2165 of 2013

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ORDER

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This Revision Petition is filed by the petitioner being aggrieved by the judgment of conviction and order of sentence dated 02.07.2012 in C.C.No.145/2011 on the file of learned Principal Civil Judge and JMFC at Gangavathi and its confirmation order dated 16.03.2013 in Crl.A.No.40/2012 on the file of the Fast Track Court, Koppal, sitting at Gangavathi, wherein the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act (for short ‘N.I. Act’).

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For the sake of convenience, the ranking of the parties henceforth will be considered as per their rankings before the trial Court.

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Brief Facts:

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It is the case of the complainant that he had paid amount of Rs.3,00,000/- to the accused and the accused had agreed to repay the same along with interest @ 18% per annum and executed a promissory note. The accused was to repay on 28.10.2010, however, the accused did not repay the amount, instead, the accused had issued a cheque for a sum of

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CRL.RP No. 2165 of 2013

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Rs.3,40,500/- and asked the complainant to present it for encashment. The complainant presented the same and it got dishonoured with an endorsement as “exceeds arrangement”. A notice was issued to the accused and the complainant presented the complaint before the Magistrate.

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To prove the case, the complainant examined four witnesses i.e., PW1 to PW4 and got marked Ex.P.1 to P.8. On the other hand, the accused examined himself as DW1. No documents were marked on his behalf.

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The trial Court after appreciating the oral and documentary evidence on record convicted the accused. Being aggrieved by the same, the accused has preferred an appeal before the Appellate Court, the Appellate Court confirmed the order of the trial Court. Hence, this petition is filed seeking to set aside the concurrent findings.

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Heard Sri. Neelendra D. Gunde, learned counsel for

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petitioner and Sri. Kiran Angadi, learned counsel for respondents.

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CRL.RP No. 2165 of 2013

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The learned counsel for the petitioner submits that the concurrent findings recorded by the sub-ordinate Courts are concrete to the facts and law therefore, liable to be set aside.

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It is further submitted that the alleged loan is disputed by the petitioner and the blank cheque and promissory note were given to the complainant in the year 2002 as a guarantee, as the complainant had given an open site to the petitioner for use and occupation for a period of three years. The complainant had promised the accused to handover cheque and promissory note once he handed over the vacant possession of the open site back to the complainant after completion of three years. However, the complainant misused cheque and promissory note and filed a false case, even after the vacant site had been handed over to the complainant.

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It is further submitted that, the complainant got examined PWs.2 and 3 who are the witnesses to the promissory note which is marked as Ex.P.8. They are all friends of the complainant and they have falsely deposed. Their evidence should not have been considered by the trial Court. As such the learned counsel for the petitioner prays to allow the petition.

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CRL.RP No. 2165 of 2013

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Per contra, Sri. Kiran Angadi, learned counsel for respondents while justifying the concurrent findings of conviction recorded by both the Courts, submitted that the issuance of the cheque and signature stands proved. In addition to issuance of the cheque, the issuance of promissory note is proved through the evidence of PWs.2 and 3. Even though, they have been subjected to lengthy crossexamination, nothing is elicited to discredit their evidence. Therefore, the trial court and Appellate Court have rightly convicted the accused. There is no illegality or perversity in the findings recorded by the trial Court and Appellate Court. Therefore interference is unwarranted in the concurrent findings. As such, the learned counsel for the respondents sought to dismiss the petition.

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After having heard the learned counsel for parties,

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now it is necessary to analyse the evidence and the concurrent findings recorded by the sub-ordinate courts to ascertain as to whether any illegality or perversity crept into the concurrent findings.

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CRL.RP No. 2165 of 2013

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It is an admitted fact that the issuance of the

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cheque and promissory note by the accused. PW3 is the scribe of Ex.P.8, has supported the case. PW2 and PW4 have also supported the case of the complainant. Nothing is there to believe the evidence of DW1 except denying the transaction, nothing is there to show that no transaction had taken place between the accused and the complainant.

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It is relevant to refer the principles of N.I. Act and also defence available to the complainant. The Act has stipulated statutory presumption which is envisaged under Sections 118 and 139 of N.I. Act which states that when a cheque is issued by a person who has signed the cheque and complainant reasonably discharges the burden that, the cheque had been issued towards a lawful payment, it is for the accused to discharge the burden regarding there was no legally enforceable debt.

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It is needless to say that, PWs.2 and 3 have supported the case, who were the attesting witnesses to Ex.P.8 – promissory note and the accused has not denied it. Therefore, the accused is rightly convicted by the trial Court and the order of conviction has been rightly confirmed by the

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CRL.RP No. 2165 of 2013

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Appellate Court. Therefore, this Court declines to interfere with the concurrent findings of conviction recorded by the sub-ordinate Courts.

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In light of the observations made above, the criminal revision petition stands dismissed.

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SD/JUDGE

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BVK List No.: 1 Sl No.: 24

Mehaboob Sab S/O. Shamid Sab v. Bargur Allabhakshisab S/O. Khasimsab

Case brief

What is this about?

What did the court decide?

Mehaboob Sab S/O. Shamid Sab v. Bargur Allabhakshisab S/O. Khasimsab

Case brief

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