M.Venkobanna S/O Anandappa vs P.Manjunath Gouda S/O Bheeman ...
2021 Latest Caselaw 3222 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 25TH DAY OF AUGUST, 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                  CRL.RP.NO.2250/2013
BETWEEN:

M.VENKOBANNA S/O ANANDAPPA
AGE: 46 YEARS, OCC: CONTRACTOR and AGRICULTURE,
R/O: RAGHAVENDRA NILAYA,
13TH WARD, FORT AREA, KAMPLI, HOSPET TALUK
BELLARY DISTRICT
                                           ...PETITIONER
(BY SRI.K.L.PATIL & SRI.B.G.INDI, ADVS.)

AND:
P.MANJUNATH GOUDA S/O BHEEMAN GOUDA
AGE: 42 YEARS, OCC: BUSINESS and AGRICULTURE,
R/O.NEAR BULL TEMPLE, 5/11TH WARD, KAMPLI, HOSPET
TALUK, BELLARY DISTRICT
                                          ...RESPONDENT
(BY SRI.SURESH P.HUDEDAGADDI, ADV.)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. SEEKING TO ALLOW THIS
CRIMINAL REVISION PETITION BY SETTING ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 12.07.2013 PASSED IN CRL.A.NO.4/2013 BY THE III-
ADDL. DIST. & SESSIONS JUDGE, BELLARY SITTING AT
HOSPET, THEREBY DISMISSING THE APPEAL FILED BY THE
PETITIONER AND CONFIRMING THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 17.11.2012 PASSED IN
C.C.NO.477/2012 BY THE ADDL. SENIOR CIVIL JUDGEJ & JMFC,
HOSPET, THEREBY CONVICTING THE PETITIONER FOR THE
OFFENCES P/U/S 138 OF NI ACT.
      THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
                                     2




                              ORDER

This criminal revision petition is filed by the

accused/revision petitioner for setting aside the judgment

of conviction and order of sentence dated 12.07.2013

passed by the III Additional District and Sessions Judge,

Bellary sitting at Hospet in Crl.A.No.4/2013 confirming the

judgment of conviction and order of sentence dated

17.11.2012 passed by the Additional Senior Civil Judge

and JMFC, Hospet in C.C.No.477/2012 and sought for

allowing the revision petition by acquitting the revision

petitioner/accused for the offence punishable under

Section 138 of Negotiable Instruments Act.

2. For the sake of convenience, the parties herein

are referred with the original rank occupied by them before

the trial court.

3. The factual matrix leading to the case are that,

complainant and accused are conversant to each other and

accused borrowed a sum of Rs.3,00,000/- from the

complainant as a hand loan and for security, he has issued

a cheque dated 26.11.2010 for Rs.3,00,000/-. When the

said cheque was presented, it was bounced for insufficient

of funds. Thereafter, the complainant has got issued a

legal notice to the accused, but in spite of service of

notice, the accused has neither replied nor repaid the

cheque amount. Hence, the complainant has lodged a

complaint under Section 200 of Cr.P.C before the

jurisdictional Magistrate for the offence punishable under

Section 138 of N.I.Act. The learned Magistrate after taking

cognizance recorded the sworn statement of the

complainant and after perusing the records issued process

against the accused.

4. The accusation under Section 138 of N.I.Act

was framed against the accused and the same is read over

and explained to the accused. He pleaded not guilty. Then

the complainant was got examined himself as P.W.1 and

he placed reliance on 7 documents as Exs.P1 to P7. After

conclusion of the evidence of the complainant, the

statement of the accused under Section 313 of Cr.P.C was

recorded by the learned Magistrate to enable the accused

to explain the incriminating evidence appearing against

him in the case of the prosecution. The case of the accused

is of total denial and he submitted his written say stating

that the cheque was issued as a security for credit

transaction only and he has cleared the credit balance and

the complainant has not returned the cheque. He has also

examined himself as D.W.1 and one witness was examined

as D.W.2. However, he did not choose to produce any

documentary evidence in support of his defence. Having

heard the arguments and perusing the records, the learned

Magistrate found that the complainant has proved the guilt

of the accused for the offence punishable under Section

138 of N.I.Act beyond all reasonable doubt and convicted

him for the said offence by imposing fine of Rs.3,05,000/-

with default sentence of simple imprisonment for a period

of three months.

5. Being aggrieved by the judgment of conviction

and order of sentence, the accused has filed an appeal in

Crl.A.No.4/2013 before the III Additional District and

Sessions Judge, Bellary sitting at Hospet. The learned

Sessions Judge by judgment dated 12.07.2013 dismissed

the appeal by confirming the judgment of conviction and

order of sentence. Hence, the revision petitioner/accused

has approached this court by filing this revision petition

against the concurrent findings of both the courts below.

6. Heard the arguments advanced by the learned

counsel for the revision petitioner and the learned counsel

for the respondent/complainant. Perused the records of the

trial court.

7. Having heard the arguments and perusing the

records, it is undisputed fact that the complainant is a

businessman. Further, it is also evident that accused is a

Class I contractor and he is not a layman. It is also evident

from the records that accused has admitted that Ex.P1

cheque was issued by him and bears his signature. Hence,

prima facie there is presumption under Section 118 of the

N.I.Act in favour of the complainant as he is holder of the

cheque in due course. Further, under Section 139 of

N.I.Act, there is a presumption in favour of the

complainant that cheque was issued towards discharge of

legally enforceable debt and the burden is on the accused

to rebut the statutory presumption.

8. The complainant himself examined as P.W.1

and he has reiterated the complaint allegations. He was

cross-examined and during the cross-examination it is

elicited that accused used to purchase materials from the

complainant, but however, the suggestion regarding credit

transaction was denied by the complainant.

9. The accused himself got examined as D.W.1

and all along he asserted that there was a credit

transaction and as a security he has issued the cheque.

But in his cross-examination he has admitted that he has

no documents to show that he had any credit transaction

with the complainant. Further, he admitted that after

alleged repayment of entire credit due, he has not issued

any legal notice. The evidence of D.W.2 is relied by the

accused and D.W.2 has deposed that accused paid

Rs.1,25,000/- in his presence, but he pleads ignorance

regarding transaction between the parties. Very

interestingly, the D.W.1-accused himself has stated that

Rs.1,25,000/- is paid in the presence of D.W.2. Hence, the

burden is on the accused to rebut the presumption and

mere denial is not a proof. The rebuttal presumption shall

be on the basis of the principles of preponderance of

probabilities and except formal denial, the accused has not

lead any evidence in this regard. Under these

circumstances, it is evident that the accused has not

rebutted the presumption available under Section 139 of

N.I.Act. The learned Magistrate having appreciated the oral

and documentary evidence has come to a just conclusion

that the accused has committed an offence punishable

under Section 138 of N.I.Act.

10. When the legal notice was served on the

accused, he could have replied to the legal notice

disclosing his stand at the first instance, but that was also

not done. Now during the course of the trial, a after

thought story was put forward, which was not supported

by any other corroborative evidence. The learned

Magistrate was justified in convicting the accused and he

has imposed very meager sentence by way of fine of

Rs.3,05,000/- though the cheque amount itself is

Rs.3,00,000/-. Admittedly, the complainant has not

challenged the sentence part. Under these circumstances,

question of interfering with the order does not arise at all.

The appellate court after re-appreciating the evidence has

arrived at a just decision. Both the courts below have

analyzed oral and documentary evidence in detail and have

come to a proper conclusion regarding proving the guilt of

the accused for the offence punishable under Section 138

of N.I.Act. Hence, the impugned judgment of conviction

does not call for any interference, as it is neither capricious

nor illegal. Hence, the criminal revision petition devoid of

any merits needs to be rejected. Accordingly, I proceed to

pass the following:

ORDER

The criminal revision petition is rejected.

The amount if any deposited before the trial

court shall be refunded to the complainant after

deducting Rs.5,000/- towards fine to be credited to

the State as per the order of the learned Magistrate.

Sd/-

JUDGE

MBS/-