The High Court
Case Details
- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.1274 OF 2016 CRIMINAL REVISION PETITION NO.1273 OF 2016 C/W IN CRL.RP NO.1274/2016 BETWEEN: SRI THIMMAIAH.H.E @ ANANDA, S/O ERAPPA AGED ABOUT 32 YEARS, R/O NO.53, 3RD MAIN ROAD, KASHINAGARA, YELACHENAHALLI, BANGALORE-560078 (BY SRI.ADINARAYAN, ADVOCATE) AND: SRI B RAVINDRA SINGH S/O BALAJI SINGH , AGED ABOUT 40 YEARS, R/O NO.274, 80 FEET ROAD SRINIVASANAGARA MAIN ROAD SRINIVASANAGARA BANGALORE-50 ...PETITIONER …RESPONDENT (BY SMT.USHA.M.S, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT, CONVICTION AND SENTENCE PASSED BY THE XXII A.C.M.M., BANGALORE PASSED IN C.C.NO.1046/2012 DATED - 2 - 18.11.2015 CONVICTING THE APPELLANT FOR AN OFFENCE P/U/S 138 OF N.I. ACT AND SENTENCING HIM TO PAY A FINE OF RS.2,55,000/- AND IN DEFAULT TO UNDERGO S.I. FOR 1 YEAR AND WHICH WAS CONFIRMED BY LXII ADDL. SESSIONS JUDGE, IN CRL.A.NO.1496/2015 BY ALLOWING THE ABOVE CRL.RP AND PLEASED TO ACQTUIT THE PETITIONER. IN CRL.RP NO.1273/2016 BETWEEN: SRI THIMMAIAH.H.E @ ANANDA , S/O ERAPPA AGED ABOUT 32 YEARS, R/O NO.53, 3RD MAIN ROAD KASHINAGARA, YELACHENAHALLI, BANGALORE-560078
Legal Reasoning
(BY SRI.ADINARAYAN, ADVOCATE) AND: SRI B MANJUNATH S/O LATE BORAIAH, AGED ABOUT 36 YEARS, R/O NO.211, SRI RAMA ROAD, THYAGARAJANAGARA BANGALORE-28 (BY SMT.USHA.M.S, ADVOCATE) ...PETITIONER …RESPONDENT THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT, CONVICTION AND SENTENCE PASSED BY THE XXII A.C.M.M., BANGALORE PASSED IN C.C.NO.6771/2012 DATED 18.11.2015 CONVICTING THE APPELLANT FOR AN OFFENCE P/U/S 138 OF N.I. ACT AND SENTENCING HIM TO PAY A FINE OF RS.3,00,000/- AND IN DEFAULT TO UNDERGO S.I. FOR 1 YEAR AND WHICH WAS CONFIRMED BY THE LEARNED LXII IN CRL.A.NO.1497/2015 BY ADDL. SESSIONS ALLOWING THE ABOVE CRL.RP AND PLEASED TO ACQUIT THE PETITIONER. JUDGE, - 3 - THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 02.04.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI CAV COMMON ORDER These two petitions filed under Section 397 r/w 401 Cr.P.C are by the accused, wherein he has challenged the concurrent findings of the trial Court and Sessions Court convicting him for the offence punishable under Section 138 of Negotiable Instrument Act. 2. These two petitions are arising out of C.C.No.1046/2012 and C.C.No.6771/2012. Though in these cases, complainant are different, accused is common and the transaction through which liability of the accused has arisen is the same and in these petitions there are common discussions, they are clubbed together and decided by a common order. 3. For the sake of convenience, petitioner is referred to as complainant with suffix of his name and respondent is referred to as accused. - 4 - 4. It is the case of complainant Manjunath that he is the owner of Innova car bearing registration No.KA-05– MH–5774 ('Innova' for short). Accused is known to him since several years. During the first week of September 2010, accused requested the complainant to lend him Innova to shift his relative to hospital for delivery and that he will return it after one week. However, after one week, accused not only failed to return the same, but also give its whereabouts. From reliable sources complainant Manjunath came to know that accused has pledged the Innova with one Vijay by forging his signature in the transfer format and fraudulently received ₹4.5 lakhs. 4.1 Therefore, he approached the Thyagarajnagar police to file complaint. Since the concerned police did not respond to him, he filed PCR.No.4663/2011 against the accused for the offence punishable under Sections 406, 415, 416, 420, 453, 465, 467, 468 and 471 of IPC. It was referred to the concerned police for investigation by the Court and case was registered in Cr.No.26/2011. However, on the intervention by the elder and well wishers, on 05.06.2011, the matter was settled and accused agreed to - 5 - pay a sum of ₹1,50,000/- within three months and issued cheque dated 05.09.2011 for ₹1,50,000/-. However, on due date when it was presented for realisation, it was dishonoured for want of sufficient funds and after issuing legal notice dated 26.09.2011 and on the failure of accused to comply with the same complaint is filed. 5. So far as the case of complainant B.Ravindra Singh who is a secondhand car dealer is concerned, it is alleged that accused brought the Innova to him for sale and with regard to the same accused was due in a sum of ₹2.5 lakhs and promised to repay the same within 2-3 months. After the said period when accused failed to pay the said amount, on his repeated request and demand issued cheque dated 05.09.2011 for ₹2,50,000/- and ultimately it was dishonoured giving rise to the cause of action for filing the complaint. 6. In both cases, accused appeared and defended by pleading not guilty. - 6 - 7. In C.C.No.1046/2012, complainant examined himself as PW-1 and got marked Exs.P1 to 7. 8. In C.C.No.6771 of 2012, complainant is examined as PW-1 and Exs.P1 to 9. 9. In both cases, during the course of his statement under Section 313 Cr.P.C accused has denied the incriminating evidence led by the complainant. 10. In both cases, accused as examined himself as DW-1. No documents are marked on behalf of the accused. 11. The trial Court convicted the accused in both cases and sentenced him to pay fine with default sentence of imprisonment. Out of the fine amount, compensation is ordered to be paid to the complainant. 12. Aggrieved by the same, the accused approached the Sessions Court by two separate appeals. However, both appeals came to be dismissed by confirming the judgment and order of the trial Court. - 7 - 13. Against the concurrent findings of the trial Court and Sessions Court, accused has come up with these petitions, contending that the same are perverse, illegal, unlawful and bad in law and as such liable to be set aside. The impugned judgment and order are contrary to facts, material, evidence placed on record. The Courts below have placed reliance upon the evidence of complainant, which is totally unbelievable, unacceptable and throws doubt upon its credibility and reliability. When the accused has disputed the issue of cheque, the evidence of PW-1 requires corroboration. In the absence of the same, no reliance can be placed on his evidence. 13.1 The demand notice is not served on the accused and false Shara is made in collusion with the Postal staff. During the cross-examination, the complainants have admitted that accused was summoned to the police station and blank signed cheques were taken. They have failed to consider the admissions extracted during the cross- examination of complainant. The trial Court as well as the Sessions Court have failed to appreciate the evidence in right perspective and as such, the findings given by them - 8 - are perverse and they call for interference by this Court and hence the petitions. 14. On the other hand, learned counsel for complainants supporting the impugned judgments and orders, would submit that complainant Manjunath is the registered owner of Innova. Under the guise of using it for period of one week, accused sold it through complainant Ravindra Singh and collected ₹4 lakhs. After complaint came to be filed, he agreed to pay ₹1,50,000/- to complnaint Manjunatha and ₹2,50,000 to complainant Ravindra Singh and issued the subject cheques. On their dishonour, the complainant have rightly filed the complaints. Though the accused claimed that he is the real owner of the Innova, but failed to establish the said fact. On appreciation of oral and documentary evidence placed on record, the trial Court and Sessions Court have rightly held the accused guilty and convicted and sentenced him. There is no perversity in the conclusions arrived and findings given by the trial Court and therefore no grounds - 9 - to interfere with the same and sought for dismissal of the petitions. 15. Heard arguments and perused the record. 16. Thus, the dispute between complainant and accused move around the ownership of Innova. Accused claim that he is the owner of the said vehicle, but he got it purchased in the name of complainant B Manjunath, as loan could not be raised in his name. On the other hand, complainant B. Manjunath has claimed that he is the owner of the said vehicle and in fact the registration certificate is standing in his name, which fact is not in dispute. During the course of his evidence he has deposed that when he purchased the said vehicle, he invested ₹4 lakhs and for the remaining amount loan was taken. He had paid 8 to 10 EMIs. He has also deposed that after the dispute arose it was settled to sell the Innova for ₹5 lakhs. Out of it, accused paid ₹3.5 lakhs and for the remaining 1.5 lakhs issued the cheque in question. Ex.P3 is the letter given by the accused admitting that the Innova belongs to complainant B. Manjunath and he has sold it to one Vinay - 10 - and received ₹4.5 lakhs and after repaying the said amount to Vinay, he would get back the Innova return it to B. Manjunath. Ex.P4 is the letter given by complainant B. Manjunatha stating that after he receives ₹1.5 lakhs from the accused, he would take back the complaint filed against him. 17. Even though during the course of his evidence, the accused has claimed that he is the registered owner of Innova, except his self-serving statement there is nothing on record to establish the said fact. During his cross examination, he has denied that in the Panchayat, he agreed to pay ₹5,00,000/- and out of it paid ₹3.5 lakhs and for the remaining sum of ₹1.5 lakhs he issued the subject cheque. 18. In this regard, complainant B. Ravindra Singh has deposed that the Innova in question was of 2010 model. It was agreed to be sold for ₹9 lakhs. Out of it, he paid ₹2.5 lakhs to the accused and before the remaining ₹6,50,000/- could be paid, the RC owner i.e, complainant B. Manjunath gave complaint and therefore he requested - 11 - accused to return ₹2.5 lakhs paid by him and accordingly, accused issued the subject cheque. After it's dishonour, he filed the complaint. Ex.P7 is the letter dated 05.06.2011 given by accused to complainant B. Ravindra Singh, acknowledging his liability to pay ₹2.5 lakhs. 19. In the light of the above circumstances, it is to be examined whether the allegation against accused for the offence punishable under Section 138 of N.I Act is established. Having regard to the fact that the cheques in question are drawn on the account of the accused maintained with his banker and they bare his signature, presumption under Section 139 of N.I Act comes into play, placing the initial burden on the accused to prove that the cheques were not issued towards repayment of any legally recoverable debt or liability and the circumstances in which they came to reach the hands of complainant. As discussed earlier, the accused has failed to rebut the presumption. On the other hand, the evidence led by the complainants prove that the cheques were issued towards repayment of the legally recoverable debt or liability. - 12 - 20. Despite service of legal notice, the accused has failed to send any reply spelling out his defence at the earliest available opportunity. If the cheques were taken by the complainant under the threat from the concerned police, there was no impediment for the accused to instruct bank to stop payment, assigning the reasons. Accused has also not availed this option. In the light of the above facts and circumstances, the trial Court as well as the Sessions Court are justified in holding that the allegation against accused are proved and he has failed to rebut the presumption. The conclusions arrived at and findings given by the trial Court are consistent with the evidence placed on record and this Court finds no perversity calling for interference in exercise of the powers under Section 397 r/w 401 Cr.P.C.
Decision
21. In the result both petitions filed by the accused fail and accordingly the following: ORDER 1. Petitions filed by the accused under Section 397 r/w 401 Cr.P.C are dismissed. - 13 - 2. The impugned judgment and order dated 18.11.2015 in C.C.Nos.6771/2012 and 1046/2012 on the file of XXII ACMM, Bengaluru and judgment and order dated 01.08.2016 and 05.08.2016 in Crl.A.Nos.1497/2015 and 1496/2015 on the file of LXII Addl.City Civil and Sessions Judge, Bengaluru are confirmed. 3. The Registry is directed to send back the trial Court as well as Sessions Court records along with copy of this order forthwith. Sd/- (J.M.KHAZI) JUDGE RR