Chikkayya S/O Rachayya Matapati vs The Mahalingapur Urban … on 22 February, 2010

IN THE HIGH COURT OF' KARNATAKA, CIRCUIT BENCH AT
DHARWAD.

DATED THIS THE 22m: DAY OF FEBRUARY 
BEFORE 1_ III;
THE HON'BLE MR. JUSTICE A.S.PACHH.ATf§J.RE.:::  L_
CRIMINAL REVISION PETITION  A i'~Ip*£_:2'I:IO-.7  'I: 
BETWEEN: I  I I I I I

CI-IIKKAYYA  =
S/O. RAOHAYYA MATAPATI,  '
AGE. 37 YEARS,   § ..
OCC.AGRI., &BUSINESS.,.  15;
R/O.MAI-IALINGAPUR, A  I
TO. MUDHOL,  V 

DIST. BAGAI,KO_T}--58'I<312..-?

... PETITIONER

(BY  85 A.A;"'DESHPANDE, ADV.)
AND: I I I I I I

THE MAHALINGAVPUR "
URBAN. CO--01?ERATIVE BANK LTD.,
-' -  M':AHA.LINGAPUR,'v-- ---------- A *
' 'TQ. MUIDHUL,
 ' .v.R'ERRES'E_NTED BY ITS
 .M1f"INAGER, 
DIST. BAGA.I;'I<OT--587312.
    RESPONDENT

 I (BY SRII GANGADHAR HOSAKERI, ADV.)

 CRIMINAL REVISION PETITION IS FILED UNDER

.  SECTIEON 397 85 401 CR.P.C. TO SET ASIDE THE ORDER DATED.

I 27.,/_O8I/2007 PASSED IN CRL. APPEAL. NO. 59/2007 BY THE P.O.,



FAST TRACK COURT, JAMAKI-IANDI, WHEREIN CONFIRMING
THE ORDER PASSED BY THE ADDL. JMFC., MUDHOL IN C.C.
NO. 448/2006 DTD. 14/O6/2007' CONVICTING THE PETITIONER
ACCUSED FOR THE OFFENCE PUNISHABLE U/S. I38.--"oI4* N.I.
ACT AND DISMISS THE COMPLAINT OF THE REsPoNDENT_'vIITH
COSTS. ,  

THIS CRIMINAL REVISION PETITION come 

HEARING THIS DAY, SRI. A.S. PACH'HAPLTRE..A J,..,]13EI,VIv--I=:REVD
THE FOLLOWING:       

The petition is filed Challenginiiigiaiithe,Vconizi'et_ion:  sentence
for the offence punishable of  Negotiable
Instruments Act (herein after a trial held by

the J.M.F.C., ROn2_'Vari§jlI.i-'the:7convi'ction_Vand--sentence having been

confirmed  the appeal »the_TSessions Court.
2. Thefacts rel.ev'a_nt forpthe purpose of this revision are as

under-
 parties are 'reieiérea as per the rankpbefore the Trial

Co'U,rtV'for't.hVe4/I.



and the father of the accused is the member of the said Bank and
had approached for the Ioan facility and on his applicationnidated

20/ 06/ 2001 the Bank advanced an amount of 

loan to the father of the accused on prevaiiiingifuinteirest 

mortgaging the immovable as security   
of the accused did not repay the loan. and "inrthe  ;
the end of June 2007 the total amountdue   interest
was Rs. 3,39,267/--. As the gegieused  not pay this
amount an arbitration case   was passed by
the arbitrator.  the accused was
placed for   auction the accused
issued two :che'q-ii{{;é.V'.to}:::gs.5:o,Q.oo/Lifléaéii dated 31/03/2007 and
10/O4/200'7:ii"dra1i?Vn  Bank and in addition to
these two cheques an afmounitdof Rs.1,00,000/-- in cash was also

pggd by   .   ..... .._p.approachied the Sessions Court in Cr]. Appeal No. 59/ 2007 and the

   came to be heard on merits and vide judgment and

orderigdated 27 /O8/2007, the appeal came to be dismissed.

ed



and perverse. Per contra, the learned counsel appearing for

respondent submits that the payment which has been r,r_1Vac1e.i__s by

the father of the petitioner and not by the accused _hirnself in

such circumstances it cannot be considered asa they 

amount of fine ordered by the Court be;loW,,,  theicircuznsrtanrges,

it is submitted that there is no material to"warrantiVa'iiy Vinterfereiice ; e

in the orders of the Court below.

9. I have scrutinisedeomplainant and the
documents produceiiegn   siuijiniissions made by
the learned counsel  be seen from the
allegations  serious dispute that the
accused had  cheques at the time when the
auction was 'being held  were issued towards the

payment ;of the lialzzility of "his father. Under the circumstances,

'takinginto Zclozisideration the provision of Section 138 of the Act,

the the cheques towards the liability of his father

Aland thei"ef0r{5 issuance of cheques is within the purview of the

it " 'T  133 "of; the Act. éé



10. The perusal of the evidence of P.W.1 and 2 and the fact
that the cheques have been produced, which were returnedpiiiby the

Bank with an endorsement of 'Insufficient Funds'  

despite the notice, the accused did not repay the,.aiinoU:nt«_Aof the 

cheques raises a presumption under the  \
of the N.Ii. Act and thereby there.'_is miaterial  
accused has committed an offenceiiiiip:uinishable~under'Section 138
of the Ni. Act. So far presumption is
concerned, it is relevant to  neither replied
the notice nor en'teii*ed.' the  the allegations
made. Though  that an amount
more  Iflaidiiiiunder the receipts dated
03/ 11  the  receipt reveals that an amount of

Rs. 58,9s_1_/-- aaa vRs.._+i6,i2_77'~~/'i-- was paid on the said date to the

,*'con;plainian;trBavnk and"it"*is mentioned in the receipt that the said

amount "is  from RM. Mathapathi, who is none else than

i it  ,_the father of theiiipetitioner. In the circumstances, it cannot be said

,that it is the; petitioner/accused, who has made the payment of

  avmount to the Bank. Therefore, the petitioner cannot seek the

Ma.



set off of this payment made, towards the fine amount which has

been ordered by the Trial Court.   
11. The learned counsel for petitioner submitted Vlthat "the

order of the Trial Court so far as the sentence of  
concerned is harsh. It is relevant to n'ote""that'..l&thel  i T
taken the responsibility to make the  
father as a moral obligation on   has been
done by the petitioner, I do not thinkthere shoulcivibe a harsh
approach against the petitioner.' ' §o.it;21i'§ingfintovconsideration these

facts, I am of the opinion  ord:er,_diret;«ting the petitioner to

undergo ir:ilprisonihent"for  is rather unreasonable and
improper.  think  and proper if the petitioner is

directed to payiilsrome. fineiinliaddition to the fine of Rs.1,00,000/-,

:_i"Wh.ich viisl"pa3Iabrle to lthe-respondent towards the liability. In that

View th.e"mat_i:erTVto the extent of imprisonment is concerned, the

 ,_order ii.nipugne'd'i__h:as to be modified. Hence, i answer the point

 'partly in affirmative and party in negative and proceed to pass the

i' "  



ORDER

The petition is allowed in part.

The sentence of imprisonment for six__§mor*it}fis ;.

ordered by the Trial Court, and confirmed inVA

is set aside.

The petitioner (accusecil is lord.’e’red an;
additional fine amount ofRs.–_ thefitotal
flwammm”VR3L@W”Wdt§aiahgmflagmm
to the complainant as remaining
amount ofR\s;5′,’Qiio/– ore:dited…trlilthe State.

In the petitioner is
ordered ‘him three months.

The «revision “pe_ti’tion~» isaccordingly disposed of.

Sdfiw
Edge