This criminal revision petition is filed by the petitioner

being aggrieved by the judgment of conviction and order of

sentence dated 10.07.2012 passed by the III Addl. Civil Judge

& JMFC, Belgaum (for short, ‘Trial Court’) and its confirmation

order dated 27.11.2012 passed by the I Addl. Sessions Judge,

Belgaum (for short, ‘Appellate Court’) in Criminal Appeal

No.137/2012.

2.

Brief facts of the case are as under:

The complainant is a Co-operative Society. The friend of

the accused namely Ramesh Kulkarni availed a loan of

Rs.15,000/-. The accused stood as a guarantor for the said

loan. The loan was sanctioned on 30.05.2001.

3.

It is alleged that the said Ramesh Kulkarni did not

repay the loan along with interest. After repeated requests, the

accused being a guarantor issued a cheque bearing No.281713

dated 28.02.2007 for a sum of Rs.6,618/- and another cheque

bearing its No.281714 dated 30.03.2007 for a sum of

Rs.6,618/- drawn on Indian Overseas Bank, Belagavi.

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4.

It is further submitted that on presentation of the

said cheques for encashment, the same have been dishonoured

for the reason, “funds insufficient” on 23.04.2007 and the said

intimation was received by the complainant on 26.04.2007.

Thereafter, the complainant lodged a complaint on 06.06.2007.

5.

To prove the case, the complainant has examined

himself as PW1 and got marked Ex.P-1 to Ex.P-9 and the

accused examined himself as DW-1 and marked Ex.D-1 to

Ex.D-19.

6.

The Trial Court after appreciating the oral and

documentary evidence, convicted the accused for the offence

under Section 138 of Negotiable Instruments Act, 1881 (for

short, ‘N.I. Act’) and sentenced him to pay a fine of

Rs.16,000/-, in default of payment of fine, he shall undergo

simple imprisonment for six months. The petitioner approached

the Appellate Court by filing appeal against the judgment of

conviction and order of sentence. However, the Appellate

Court confirmed the said order of conviction. Hence, this

revision petition.

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7.

Heard Sri Santosh Rawoot, learned counsel for

petitioner and Sri Vishwanath V. Badiger, learned counsel for

respondent.

8.

Sri Santosh Rawoot, learned counsel for petitioner

submits that, the judgment and order of conviction and its

confirmation order passed by the Appellate Court are contrary

to the facts and law. Hence, the concurrent findings of the

subordinate Courts are liable to be set aside.

9.

It is further submitted that, the accused is the

guarantor for the loan which one Ramesh Kulkarni had availed

from the Co-operative Bank. The amount is of Rs.15,000/-, the

accused and the loanee have furnished cheques as collateral

security for the said loan.

10.

It is further submitted that, the complainant has

not produced any documents to show that, efforts have been

made to recover the amount from Ramesh Kulkarni, who is a

principal borrower since the said amount has not been

recovered from Ramesh Kulkarni i.e., principal borrower, the

complainant has proceeded against the guarantor. In absence

of such efforts having been made to recover the amount from

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the principal borrower, proceeding against the accused for the

offence under Section 138 of N.I. Act is unsustainable and

liable to be set aside.

11.

Per contra, Sri Vishwanath V. Badiger, learned

counsel for respondent submits that the accused has stood as

guarantor and issued a cheque when the demand was being

made by the complainant. The principal borrower has became

defaulter and did not pay the amount. Ex.P-1 to Ex.P-3 are the

documents which clearly indicates the outstanding of the loan

as on the date of issuance of the cheque by the accused.

12.

It is settled principle of law that if the amount is

not recovered from the principal borrower, the guarantor is

held liable for the amount which the principal borrower has

borrowed. Therefore, the Trial Court and the Appellate Court

rightly convicted the accused and the concurrent findings of the

conviction do not require interferen