The High Court
Case Details
- 1 - NC: 2025:KHC:14334 CRL.RP No. 1406 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 1406 OF 2016 BETWEEN: ABDUL WAZID S/O AMEERJAN, AGED ABOUT 58 YEARS, AGRICULTURIST AND REAL ESTATE AGENT, R/O 5TH CROSS, ILLIYASNAGAR, 100 FEET ROAD, NEW MANDLI, SHIVAMOGGA CITY-577 203. (BY SRI. UMESH MOOLIMANI, ADVOCATE FOR SRI. S.V PRAKASH, ADVOCATE) …PETITIONER AND: SMT. INDIRA W/O NANJUNDAPPA, AGED ABOUT 44 YEARS, R/O OLD BARLIN ROAD, SHIVAMOGGA CITY-577 201. (BY SRI. R.B DESHPANDE, ADVOCATE) …RESPONDENT Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA
Legal Reasoning
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 21.07.2016 PASSED BY THE III ADDL. S.J., SHIVAMOGGA IN CRL.A.NO.82/2014 CONFIRMING THE JUDGMENT AND ORDER J.M.F.C.-II COURT, OF CONVICTION PASSED BY THE SHIVAMOGGA DATED 03.05.2014 IN C.C.NO.3226/2009 FOR THE OFFENCE P/U/S 138 OF N.I.ACT AND DISMISS THE IN COMPLAINT COMPLAINANT FILED THE BY - 2 - NC: 2025:KHC:14334 CRL.RP No. 1406 of 2016 C.C.NO.3226/2009 ON THE FILE OF J.M.F.C.-II COURT, SHIVAMOGGA. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL ORDER In this revision petition, the revision petitioner/accused has assailed the judgment dated 21.07.2016 passed by the Court of III Addl. Sessions Judge at Shivamogga (hereinafter referred to as 'the First Appellate Court') in Crl.A.No.82/2014, wherein the First Appellate Court had dismissed the appeal filed by the revision petitioner and confirmed the judgment of conviction and order of sentence passed by the Court of JMFC- II Court at Shivamogga (for short 'the trial Court') in C.C.No.3226/2009 dated 03.05.2014. 2. Parties are referred to as per ranking before the trial Court. 3. The factual matrix of the prosecution case, in brief, is as follows: The accused is a dealer in marbles and tiles at Shivamogga and the complainant had approached the accused - 3 - NC: 2025:KHC:14334 CRL.RP No. 1406 of 2016 for supply of marbles and tiles to her house being constructed by her and the accused towards supply of marbles and tiles requested for payment of advance amount. The complainant agreed to pay an advance of Rs.75,000/-, and out of the said amount, a sum of Rs.40,000/- was paid by way of cheque on 06.03.2008 drawn on State Bank of Mysore, Ravindranagar Branch, Shivamogga and another cheque for Rs.10,000/- on the same day drawn on same Bank and the balance of Rs.25,000/- was paid in cash. Despite of payment of advance amount, the accused failed to supply the marbles and tiles as agreed and after repeated demands, the accused agreed to return the advance amount and accordingly, he issued a cheque bearing No.808827 dated 25.09.2008 for Rs.75,000/- drawn on D.C.C Bank, Shivamogga. When the complainant presented the said cheque, the same returned with an endorsement 'Insufficient funds'. The same was intimated to the accused by the complainant by issuing a legal notice dated 16.12.2008. The said notice was duly served upon the accused. Despite the accused failed to reply to the notice or to repay the hand loan. Hence, the complainant filed the private complaint under Section 200 of Cr.P.C against the accused for the offence - 4 - NC: 2025:KHC:14334 CRL.RP No. 1406 of 2016 punishable under Section 138 of the Negotiable Instrument Act (for short 'the N.I. Act') before the trial court. 4. In order to prove the case before the trial court, the complainant examined her husband as power of attorney holder as PW.1 and got marked 10 documents as Ex.P1 to P10. The accused examined himself as DW.1 and also examined one more witness as DW.2 on his behalf. 5. After assessment of oral and documentary evidence, the trial Court convicted the accused for the offence punishable under Section 138 of the N.I. Act, as under: "ORDER Acting U/sec. 255 (2) of Criminal procedure Code, the accused is convicted for the offence punishable U/sec.138 of Negotiable Instruments Act and he fine of Rs.1,15,000/- (Rupees one lakh fifteen thousand only). is sentenced to pay In default of pay fine, the accused shall undergo simple imprisonment for a period of one year. Further, acting under Section 357 (1) (b) of Cr.P.C., out of the fine amount, a sum of Rs.1,10,000/- (Rupees one lakh ten thousand only) on recovery, shall be paid as compensation to the complainant." - 5 - NC: 2025:KHC:14334 CRL.RP No. 1406 of 2016 6. Aggrieved by the said judgment, the accused approached the First Appellate Court in Crl.A.No.82/2014. The First Appellate Court after re-assessment of the entire evidence on record dismissed the appeal filed by the accused by confirming the judgment passed by the trial Court. Challenge to the same is lis before this Court. 7.
Legal Reasoning
I have heard Sri. Umesh Moolimani, the learned counsel for the revision petitioner and Sri. R.B Deshpande, learned counsel for the respondent. 8. The primary contention of the learned counsel for the revision petitioner/accused is that the trial Court and the First Appellate Court grossly erred while convicting the accused without appreciating the defence put forth by the accused that, at no point of time the accused availed hand loan from the complainant and issued the cheque in question to her. Per contra, the husband of the complainant one Nanjundappa i.e., PW.1, known to the accused since both of them were engaged in real estate business. In connection with a property, they dealt together; the accused and PW.1 delivered two cheques each to one developer. Later, the two cheques of the accused - 6 - NC: 2025:KHC:14334 CRL.RP No. 1406 of 2016 was received by PW.1 from the developer and misused the same by presenting in the name of his wife i.e., the complainant for unlawful gain. He further contended that, initially the complainant examined her husband as PW.1 as her power of attorney holder. Though the learned Magistrate convicted the accused, the said judgment was challenged by the accused before the Sessions Court in Crl.A.No.143/2012 and the learned Sessions Judge set-aside the judgment and remanded the matter with a direction to give an opportunity to the complainant either to prosecute the case personally or to seek permission of the Court to prosecute the case through GPA Holder. After remand the complainant has adopted evidence earlier adduced by him. However, the accused denied the opportunity to cross examine him. In such circumstance, the order of the Sessions Court is not complied. Hence he prays to set aside the impugned judgment. Accordingly, he prays to allow the revision petition. 9. Per contra, learned counsel for the respondent contended that the trial Court and the First Appellate Court after meticulously examining the entire evidence on record, passed a well-reasoned judgments which do not call for any - 7 - NC: 2025:KHC:14334 CRL.RP No. 1406 of 2016 interference at the hands of this Court. He further contended that, even after receiving the legal notice, the accused failed to reply the same and the defence put forth by the accused is not probable one to rebut the initial presumption. He additionally contended that, the accused failed to lodge any complaint against the complainant, either against the developer or the husband of the complainant for having misused the cheque as claimed by him. Hence, he prays to dismiss the revision petition. 10. As could be gathered from the records, the signature of the accused on the cheque-Ex.P2 is not in dispute. The defence put forth by the accused is that, the cheque in question was issued to a developer along with husband of the complainant and later, the husband of the complainant taken the cheque from the developer and presented the same through his wife i.e., the complainant for unlawful gain. However, the accused failed to place any such documents to prove the said defence. Even on perusal of the evidence of PW.1, he has categorically denied the said aspect. In such circumstances, the defence of the accused is not a probable one. The other contention of the learned counsel for the - 8 - NC: 2025:KHC:14334 CRL.RP No. 1406 of 2016 accused that the non compliance of the order passed in Crl.A.No.143/2012 and on perusal of the order sheet of the trial Court, the same depicts that sufficient opportunity has been granted to the accused to cross-examine the PW.1. In such circumstances, the said contention of the learned counsel for the accused does not holds good. No doubt, initial presumption under Sections 118 and 139 of the N.I. Act is rebuttal one. Nevertheless, it is a settled position of law that such initial presumption can be rebutted only by placing a probable defence. In the case on hand, the accused failed to put forth such probable defence. Such being the position, I am of the considered view that both the Courts below have rightly passed the judgments which do not call for any interference at the hands of this Court. Accordingly, I proceed to pass the following:
Decision
ORDER The Criminal Revision petition is dismissed. HKV List No.: 1 Sl No.: 26 SD/- (RAJESH RAI K) JUDGE