The High Court · 2018
Case Details
- 1 - NC: 2025:KHC:21515 CRL.RP No. 437 of 2021 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO. 437 OF 2021 (397(Cr.PC) / 438(BNSS)) BETWEEN: SHASHIDHAR M AGED ABOUT 47 YEARS, S/O MARALASIDDAPPA, K M SONNAPPA LAYOUT MAIN ROAD, KAREGUDDADAHALLI, BENGALURU 560090
Legal Reasoning
(BY SRI. PRABHUGOUDA B. TUMBIGI., ADVOCATE) …PETITIONER AND: NATARAJ AGED ABOUT 48 YEARS, S/O LATE MARKONDA MUDHALIYAR, R/AT NO 3, 3RD MAIN, MATHIKERE, BENGALURU - 560054. Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA …RESPONDENT (BY SRI. B.L. KUMAR, ADVOCATE - ABSENT.) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 17.03.2020 PASSED BY THE HON'BLE LXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN CRL.A. NO.372/2018 AND ALSO BE PLEASED TO SET ASIDE THE JUDGMENT DATED 07.02.2018 PASSED BY THE HON'BLE JUDGE COURT OF SMALL CAUSES AND XXVI ACMM, BANGALORE IN C.C.NO.27611/2016 AND - 2 - NC: 2025:KHC:21515 CRL.RP No. 437 of 2021 HC-KAR CONSEQUENTLY BE PLEASED TO ACQUIT THE PETITIONER FROM THE ALLEGED OFFENCE. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE G BASAVARAJA ORAL ORDER This revision petition is preferred by the accused, challenging the judgment of conviction and order on sentence order dated 07th February 2018 passed in CC No.27611 of 2016 by the Judge, Court of Small Causes & XXVI ACMM at Bengaluru (for short hereinafter referred to as the "trial Court") which is confirmed by judgment and order dated 17th March, 2020 passed in Criminal Appeal No.372 of 2018 by the LXI Additional City Civil & Sessions Judge, Bengaluru (for short hereinafter referred to as the "appellate Court"). 2. 3. Heard the arguments on both sides. Sri Prabhugoud B Thumbigi, learned Counsel appearing for the revision petitioner submits that the impugned judgment of conviction passed by both the Courts below are arbitrary, illegal and without application of mind and are contrary to Sections 138 and 142 of Negotiable Instruments Act - 3 - NC: 2025:KHC:21515 CRL.RP No. 437 of 2021 HC-KAR and hence are liable to be set aside. He would submit that the alleged date of hand loan by way of cash and the alleged date of repayment clearly shows that the complainant is not free from malafide and the same is made for illegal gain to the accused and to cause illegal loss to the revision petitioner. He would further submit that the complainant does not show that the respondent has the capacity to pay the alleged amount by way of cash to the revision petitioner, but the courts below failed to consider this aspect of the matter and have arrived at a wrong conclusion. Further, he would submit that the blank cheques were issued for security for transaction between one Sajesh and the respondent. The respondent, subsequently, had difference with the said Sajesh and misused the blank security cheques of revision petitioner, and had falsely claimed the cheque amount and, in fact, there is no legally recoverable debt existing between the accused-revision petitioner and the complainant-respondent. However both the Courts below have failed to appreciate the evidence on record in its proper perspective, and there is no corroboration of the oral evidence with documentary evidence to prove the issuance of cheques to the respondent. Hence, he would submit that both the Courts - 4 - NC: 2025:KHC:21515 CRL.RP No. 437 of 2021 HC-KAR below have erred in passing the judgment and orders, and on all these grounds, sought to allow the appeal. To buttress his argument, he has relied on the decisions of Hon'ble Supreme Court in the case of ANSS RAJASHEKAR v. AUGUSTUS JEBA ANANTH reported in AIR 2019 SC 94 and K. SUBRAMANI v. K. DAMODARA NAIDU reported in (2015)1 SCC 99. 4. Having heard the learned Counsel appearing for the revision petitioner, I have examined the materials placed before me. The complainant has produced two cheques vide No.510722 dated 02nd November, 2016 for sum of Rs.5,50,000/- and No.510736 dated 04th November 2016 for sum of Rs.4,00,000/- totally amounting to Rs.9,50,000/- and when the cheques were presented to the Bank for encashment, both were returned with endorsement “Account closed”. Within the prescribed time, the complainant has issued demand notice to the accused to pay the cheque amount of Rs.9,50,000/-. The same was duly served to the accused. Accused has not only not sent any reply, but also failed to pay the cheque amount within the statutory period. Later, the complainant has lodged complaint under Section 200 of Code of Criminal - 5 - NC: 2025:KHC:21515 CRL.RP No. 437 of 2021 HC-KAR Procedure. To substantiate this, PW1 has adduced his evidence and produced necessary documents. 5. To rebut the statutory presumption under Section 138 of the Negotiable Instruments Act, the accused has not adduced any evidence. Only during the course of cross- examination of PW1, it was suggested to PW1 that the complainant has no financial capacity to lend loan of Rs.9,50,000/-. In this regard, the accused has not made any reply to the legal notice issued by the complainant, despite due service of notice. Hence, the defence set up by the accused cannot be accepted. It is settled law that the accused has to rebut the presumption under Section 139 of Negotiable Instruments Act, to discharge the burden which is cast upon him. Even on re-appreciation, re-examination and re- consideration of the entire evidence on record, I do not find any error legal infirmity in the judgment of conviction and sentence passed by the trial court, which is affirmed by the Court. In the result, I proceed to pause the following:
Decision
O R D E R (i) Revision petition is dismissed; - 6 - NC: 2025:KHC:21515 CRL.RP No. 437 of 2021 HC-KAR (ii) Judgment of conviction and order of sentence dated 7th February 2018 passed in CC No.27611 of 2016 by Judge, Court of Small Causes & XXVI ACMM at Bengaluru which is confirmed by judgment and order dated 17th March 2020 passed in Criminal Appeal No.372 of 2018 by the LXI Additional City Civil & Sessions Judge, Bengaluru, are confirmed. Sd/- (G BASAVARAJA) JUDGE lnn List No.: 1 Sl No.: 4