The High Court
Case Details
- 1 - NC: 2025:KHC:13223 CRL.RP No. 961 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 961 OF 2017 BETWEEN: H.J. NAVEEN KUMAR S/O JOYAPPA AGED ABOUT 32 YEARS R/AT THOLURSHETTALLI VILLAGE & POST SOMWARPET TALUK KODAGU DISTRICT (BY MR. RAKSHAN M.K FOR MR. ABIJITH M.M, ADVOCATE) AND: S.B.NAGENDRAPRASAD S/O LATE BASAPPA AGED ABOUT 45 YEARS R/AT THOLURSHETTALLI VILLAGE & POST SOMWARPET TALUK KODAGU DISTRICT …PETITIONER (BY MR. G.B SHARATH GOWDA, ADVOCATE) …RESPONDENT THIS CRL.RP IS FILED U/S.397 AND 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 08.10.2015 PASSED IN C.C.NO.816/2013 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, SOMWARPET. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAJESH RAI K Digitally signed by MAYAGAIAH VINUTHA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13223 CRL.RP No. 961 of 2017 ORAL ORDER This criminal revision petition is directed against the judgment passed in Crl.A.No.70/2015 dated 09.06.2017 by the Principal Sessions Judge, Kodagu, Madikeri (hereinafter referred to as 'the learned Sessions Judge'), whereby the
Legal Reasoning
learned Sessions Judge confirmed the judgment of conviction and the order of sentence passed in C.C.No.816/2013 dated 08.10.2015 by the Principal Civil Judge & JMFC, Somwarpet (hereinafter referred to as 'the Trial Court'). 2. Parties are referred to as per their ranking before the Trial Court 3. The factual matrix of the prosecution case is that: The revision petitioner/accused and the complainant/respondent known to each other. It is the case of the complainant that, the accused borrowed a hand loan of Rs.60,000/- from the respondent/complainant for the purpose of vehicle repair. For repayment of the said loan amount, the accused has issued a post dated cheque bearing No.82741 dated 08.01.2013 drawn on State Bank of India, Somwarpet - 3 - NC: 2025:KHC:13223 CRL.RP No. 961 of 2017 Branch. The said cheque was presented by the complainant for encashment, however, the same was returned with an endorsement 'funds insufficient'. The said aspect was informed by the complainant to accused, however, he failed to repay the same. As such, the complainant issued a legal notice to the accused on 06.02.2013, calling upon him to repay the cheque amount. Though the said notice served to the accused, neither he replied to the legal notice nor repay the loan amount. As such, the complainant filed the private complaint before the trial Court under Section 200 of Cr.P.C against the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act'). Thereafter, the accused appeared before the trial Court and his plea was recorded. 4. In order to prove the case of the complainant, he examined himself as PW.1 and marked 5 documents as Exs.P1 to P5. The respondent/accused neither examined any witnesses nor got marked any documents. 5. After assessment of oral and documentary evidence placed before the trial Court, the trial Court passed the - 4 - NC: 2025:KHC:13223 CRL.RP No. 961 of 2017 judgment by convicting the accused for the offence punishable under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for a period of one year and fine of Rs.71,000/-. In default of payment of fine, further directed him to undergo simple imprisonment for a period of six months and out of the amount so realised, he was further directed to pay a sum of Rs.66,000/- to the complainant as compensation under Section 357 of Cr.P.C. 6. Aggrieved by the above judgment, the accused preferred the criminal appeal before the learned Session Judge in Crl.A.No.70/2015. On reassessment of the oral and documentary evidence and documents on record, learned Session Judge dismissed the criminal appeal and confirmed the judgment of conviction and the order of sentence passed by the trial Court. Challenge to the same is lis before this Court. 7.
Legal Reasoning
I have heard the learned counsel, Sri Rakshan M.F., for Sri Abijith M.M., learned counsel for the revision petitioner and Sri. G.B.Sharath Gowda, learned counsel for the respondent. - 5 - NC: 2025:KHC:13223 CRL.RP No. 961 of 2017 8. The primary contention of the learned counsel for the revision petitioner is that the trial Court and the Session Court grossly erred while passing the impugned judgment by convicting the accused without appreciating the evidence on record in the right perspective. He would contend that the trial Court and the Session Court totally failed to appreciate the defence put forth by the accused that the cheque in question robbed by the complainant while he was proceeding on his motorbike. The complainant also failed to prove the lending capacity. Alternatively, he would contend that the judgment of the trial Court, which is confirmed by the Session Court, may be modified to the extent by setting aside the sentence of imprisonment imposed by the trial Court by confirming the fine amount. Accordingly, he prays to allow the revision petition. 9. Per contra, learned counsel for the respondent would contend that both the trial Court and the Session Court after meticulously examining the entire evidence and documents available on record, passed well reasoned judgments, which do not call for any interference at the hands of this Court. He would further contend that the accused totally failed to rebut the initial presumption under Sections 118 and - 6 - NC: 2025:KHC:13223 CRL.RP No. 961 of 2017 139 of NI Act either by examining any witnesses or by placing any documents to that effect. Though the defence was raised in the cross examination that the cheque in question was robbed by the complainant, there is no such complaint or any other documents placed before the trial Court. Accordingly, he prays to dismiss the revision petition. 10. Having heard the learned counsel for the respective parties so also perused the documents, the only point that would arise for my consideration is: "Whether the Session Court is justified in dismissing the appeal in Crl.A.No.70/2015 dated 09.06.2017 thereby confirming the judgment of conviction and the order of sentence passed by the trial Court in C.C.No.816/2013 dated 08.10.2015? 11. I have given my anxious consideration on the arguments advanced by the learned counsel for the respective parties and also carefully perused the entire materials on record placed before me. 12. As could be gathered from the records, it is the specific case of the complainant that the accused availed hand loan of Rs.60,000/- for the purpose of his vehicle repair and thereafter, he failed to repay the said amount. Accordingly, he - 7 - NC: 2025:KHC:13223 CRL.RP No. 961 of 2017 issued the cheque in question as per Ex.P1. After dishonouring the said cheque, though the complainant brought to the knowledge of the accused by issuing legal notice, the accused failed to reply the same. The defence of the accused was that cheque in question was robbed by the complainant while he was travelling. Admittedly, the accused has failed to cause any reply notice to the complainant. Further he has also not examined himself and not placed any such reliable documents to substantiate his contention that the cheque in question was robbed by the complainant. No doubt, the initial presumption arises under Sections 118 and 139 of NI Act, is a rebuttable presumption. However, it is settled position of law that such defence of the accused must be a probable one. In the case on hand the accused has failed to rebut the initial presumption by placing a probable defence. In such circumstances, both the trial Court and the Session Court are justified in holding that the accused is guilty under Section 138 of NI Act. Albeit, the trial Court after imposing fine amount of Rs.71,000/-, additionally convicted the accused for a period of one year for the offence punishable under Section 138 of NI Act. - 8 - NC: 2025:KHC:13223 CRL.RP No. 961 of 2017 13. In my considered view, there is a substantial force in the contention of the learned counsel for the revision petitioner that the imprisonment imposed by the trial Court requires interference by this Court. In that view of the matter, the revision petition partly succeeds. Accordingly, I answer the point raised above as partly affirmative and proceed to pass the following: i) ii)
Decision
ORDER The Criminal Revision petition is allowed-in-part; The judgment of conviction and the order of the sentence passed by the Prl. Civil Judge and JMFC, Somwarpet in C.C.No.816/2013 dated 08.10.2015, which was confirmed by the Prl. Sessions Judge, Kodagu, Madikeri in Crl.A.No.70/2015 dated 09.06.2017, is hereby modified by setting aside the imprisonment imposed by the trial Court for the offence punishable under section 138 of NI Act. iii) The revision petitioner/accused is sentenced to pay a fine of Rs.71,000/- to the respondent/complainant and in default of - 9 - NC: 2025:KHC:13223 CRL.RP No. 961 of 2017 payment of fine, he shall undergo simple imprisonment for a period of six months. iv) The fine amount shall be deposited within four weeks from the date of receipt of the certified copy of this order. v) If the fine amount is deposited, out of the fine amount, a sum of Rs.70,000/- shall be paid as compensation to the complainant/respondent under Section 357 of Cr.P.C. Balance amount shall be submitted to the State Treasury. Sd/- (RAJESH RAI K) JUDGE KTY List No.: 1 Sl No.: 16