Karnataka High Court
Nagesh Y N vs Yelahanka Merchants Finance Company on 3 July, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:23878
CRL.RP No. 799 of 2015
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL REVISION PETITION No. 799 OF 2015
BETWEEN:
NAGESH Y N
S/O NANJE GOWDA
AGED ABOUT 35 YEARS
SHAKTHI TRADERS
R/AT No.51/C, 2ND MAIN ROAD
A.P.M.C. YARD, YESWANTHPUR
BANGALORE - 560 022.
...PETITIONER
Digitally signed by
LAKSHMINARAYANA (BY SRI M V PARAMESHWARAPPA, ADVOCATE)
MURTHY RAJASHRI
Location: HIGH AND:
COURT OF
KARNATAKA
YELAHANKA MERCHANTS
FINANCE COMPANY
HEMKUMAR NAGAR
BYPASS, B.B.ROAD, YELHANKA
BANGALORE - 64.
...RESPONDENT
(BY SRI M SUBRAMANI, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT
ORDER DATED 29.04.2015 PASSED BY THE LI ADDL. CITY
CIVIL JUDGE AND S.J., BANGALORE CITY IN
CRL.A.No.517/2013 IN CONFIRMING THE JUDGMENT AND
SENTENCE DATED 12.09.2013 PASSED BY THE XII A.C.M.M.,
BANGALORE IN C.C.No.2701/2007 AND ACQUIT THE
PETITIONER IN THE ABOVE CASE AND ETC.,
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NC: 2025:KHC:23878
CRL.RP No. 799 of 2015
HC-KAR
THIS PETITION COMING ON FOR FURTHER HEARING
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
This revision petition is directed against the judgment dated 29.04.2015 passed in Crl.A.No.517/2013 by LI Addl.City Civil and Sessions Judge, Bangalore City where under the judgment of conviction dated 12.09.2013 passed in C.C.No.2701/2007 by XII ACMM, Bangalore convicting the petitioner for the offence punishable under Section 138 of the N.I.Act and sentencing him to pay fine of Rs.1,60,000/- and in default, to undergo simple imprisonment for three months has been affirmed.
2. Heard learned counsel for the petitioner and learned counsel for respondent.
3. The case of the complainant before the trial Court was that the petitioner - accused approached respondent - complainant on 28.05.2005 and availed loan of Rs.2 lakhs with a condition to repay the same with interest within a -3- NC: 2025:KHC:23878 CRL.RP No. 799 of 2015 HC-KAR short period. When the respondent - complainant insisted the petitioner - accused to repay the amount borrowed he issued a cheque bearing No.472009 dated 03.11.2005 for Rs.1,07,990/- towards discharge of loan. The respondent presented the said cheque for encashment and it came to be dishonoured for the reason 'insufficient funds.' The complainant got issued legal notice to the petitioner and it has been served on him. Inspite of service of notice, the petitioner has not made payment of cheque amount and therefore, respondent - complainant has initiated proceedings against the petitioner for the offence punishable under Section 138 of N.I.Act.
4. The complainant has examined its Manager as PW.1 and got marked Exs.P1 to P12. The petitioner - accused inspite of giving opportunity has not cross- examined PW.1. The statement of the accused has been recorded under Section 313 of Cr.P.C. The accused has not lead any defence evidence. Learned Magistrate after hearing arguments on both sides and appreciating the -4- NC: 2025:KHC:23878 CRL.RP No. 799 of 2015 HC-KAR evidence on record has convicted the petitioner for the offence punishable under Section 138 of the N.I.Act. The said judgment of conviction has been challenged by the petitioner - accused before the Sessions Court in Crl.A.No.517/2013 and it came to dismissed on merits affirming the judgment of conviction.
5. Learned counsel for the petitioner would contend that petitioner has not been given sufficient opportunity for cross-examination of PW.1. Petitioner was unwell at the relevant time and therefore, he could not appear before the Court. The petitioner has not been given sufficient opportunity to lead defence evidence. With this learned counsel for the petitioner prayed to set-aside the impugned judgment and remand of the matter.
6. Learned counsel for respondent would contend that petitioner has been given sufficient opportunity for cross-examination of PW.1, but inspite of that he has not cross-examined PW.1. Petitioner remained absent for -5- NC: 2025:KHC:23878 CRL.RP No. 799 of 2015 HC-KAR nearly about two years after chief-examination of PW.1 and when the matter was posted for cross-examination of PW.1. The trial Court has given opportunity to the petitioner to lead defence evidence but he has not lead defence evidence. The petitioner has not produced any document to show regarding his ill-health. Even the petitioner has not sought for remand of the matter in the appellate Court and before this Court. With this he prayed for dismissal of revision petition.
7. Having heard learned counsels this Court has perused the impugned judgments and trial Court records.
8. It is the specific case of respondent - complainant that the petitioner has availed loan of Rs.2 lakhs and with a condition to repay the same within a short period. The petitioner in order to repay the amount borrowed has issued cheque - Ex.P1 and it has been dishonoured for want of funds. The Manager and GPA holder of the respondent - complainant has been examined as PW.1 on -6- NC: 2025:KHC:23878 CRL.RP No. 799 of 2015 HC-KAR 25.05.2011 and got marked Exs.P1 to P12. Thereafter the case has been posted for cross-examination on 25.06.2011 and 25.07.2011. The petitioner - accused has not chosen to cross-examine PW.1 and he remained absent on 25.07.2011. On 25.07.2011, cross-examination of PW.1 has been taken as nil. The trial Court has issued NBW against him. Petitioner - accused appeared before the trial Court on 19.07.2013 and filed application seeking recall of NBW issued against him and it has been recalled. His statement under Section 313 of Cr.P.C. has been recorded. The petitioner - accused remained absent from 25.07.2011 to 19.07.2013 for a period of nearly two years. Thereafter also the petitioner has not filed application seeking recall of PW.1 for cross-examination. The petitioner has been given opportunity to lead defence evidence on 20.08.2013 and he has not lead the defence evidence. Considering the said aspect sufficient opportunity has been given to the petitioner - accused for cross-examination of PW.1 and to lead defence evidence. -7-
NC: 2025:KHC:23878 CRL.RP No. 799 of 2015 HC-KAR Even though it is stated by learned counsel for the petitioner that petitioner was unwell during that period but no documents are produced in that regard. As the issuance of cheque Ex.P1 has not been disputed by cross- examining PW.1, presumption has to be drawn under Section 139 of N.I.Act that the cheque is issued for discharge of debt. The said presumption has not been rebutted by the petitioner. Considering the said aspect, learned Magistrate has rightly convicted the petitioner for the offence under Section 138 of the N.I.Act as other ingredients of Section 138 of the N.I.Act has been complied. Even before the appellate Court, the petitioner has not produced any medical documents to show his ill- health. Even he has not sought for remand of the matter in the appeal preferred by him in Crl.A.No.517/2013. Even in the present revision petition the petitioner has not sought for remand of the matter and he has not produced any medical documents to show his ill-health during the relevant period. Considering all these aspects, no grounds -8- NC: 2025:KHC:23878 CRL.RP No. 799 of 2015 HC-KAR are made out to allow this revision petition. In the result, this revision petition is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR) JUDGE DKB List No.: 1 Sl No.: 33