Karnataka High Court

Sri C Lingaiah vs S Nanjundaiah on 1 December, 2021

Bench: V Srishananda

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 1ST DAY OF DECEMBER, 2021

                      BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO.1525 OF 2019

BETWEEN:

SRI. C. LINGAIAH
S/O LATE GURUMALLAPPA,
AGED ABOUT 73 YEARS
RETIRED COURT OFFICIAL
R/O MUDDURANGANAHALLI
(UNNEKATTE GATE)
MULUKUNTE POST
KASABA HOBLI, SIRA TALUK.
                                     ...PETITIONER
(BY SRI. MOHAN S, ADVOCATE)

AND:

SRI. S. NANJUNDAIAH
S/O LATE SIDDALINGAPPA
AGED ABOUT 83 YEARS
R/O. NEAR LAKSHMI TALKIES,
BEHIND CHETHANA SCHOOL,
BATAWADI, TUMAKURU CITY.
                                   ...RESPONDENT
(BY SRI. LAKSHMIKANTH K, ADVOCATE)(ABSENT)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
                              2

PASSED IN C.C.NO.252/2009 DATED 03.01.2019 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC 1
AT TUMAKURU AND THE JUDGMENT AND ORDER DATED
30.11.2019 PASSED IN CRL.A.NO.5/2019 ON THE FILE
OF THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE AT TUMAKURU AND DIRECT THE PETITIONER BE
ACQUITTED OF THE OFFENCE ALLEGED AND CHARGED
AGAINST HIM.

     THIS CRIMINAL REVISION PETITION COMING FOR
ADMISSION, THIS DAY, THE COURT MADE THE
FOLLOWING:-

                         ORDER

Heard Sri. Mohan S, learned counsel appearing for

revision petitioner.

2. This revision petition is filed by the revision

petitioner/accused challenging the order dated

03.01.2019 passed in C.C. No.252/2009 on the file of

the Court of the Principal Civil Judge and JMFC at

Tumakuru, which was confirmed in Crl.A.No.5/2019

dated 30.11.2019 passed by the III Additional District

and Sessions Judge, Tumakuru.

3. The accused, who suffered the order of

conviction under the provisions of Section 138 of the

Negotiable Instruments Act, 1881 (for short N.I. Act)

and ordered to pay Rs.2,10,000/- to the complainant

and Rs.2,000/- to the State as fine, whereby the

accused came to be convicted and sentenced as under:

Accused is sentenced to pay fine of Rs.2,10,000/- (Rupees Two Lakhs Ten Thousands only) to the complainant and in default of payment of fine, to undergo S.I. for 3 months.

Out of the fine amount, Rs.2,08,000/- (Rupees Two Lakhs Eight Thousands only) shall be paid to the complainant as compensation under Section 357 Cr.P.C., and balance fine amount of Rs.2,000/- shall be remitted to the State Government.

which was confirmed in Crl.A.No.5/2019 is in this

revision.

4. The brief facts of the case are as under:-

A complaint came to be filed against the revision

petitioner contending that respondent has lent a hand

loan in a sum of Rs.2,00,000/- on 26.06.2008. To re-

pay the said sum, the accused issued a cheque bearing

No.027277 in a sum of Rs.2,00,000/- drawn on Vijaya

Bank, Sankey Road Branch, Bengaluru dated

25.08.2008, which on presentation came to be

dishonored. Statutory notice was issued to the

complainant and the same is served on the accused and

despite the same, there is no compliance of the notice,

calling of notice or any reply sent. Thereafter, learned

Magistrate took cognizance of the offence and after

completing formalities, plea was recorded. Accused

pleaded not guilty. In order to prove the case of the

prosecution, the complainant got examined himself as

P.W-1 and another witness by name Santhoshkumar as

PW-2 and relied on seven documents which were

exhibited and marked as Exs.P1 to P7. To rebut the said

presumption in favour of the accused, the accused got

himself examined as D.W1 and the cheque in fact is

forcibly taken by son-in-law of the complainant,

therefore he is not liable to pay the amount. In the

accused statement also the accused denied all the

incriminatory circumstances. The learned Magistrate

after considering the oral and documentary evidence on

record convicted the accused holding that the accused

failed to repay the amount of Rs.2,00,000/- covered by

Ex.P1- Cheque, which was issued for the repayment of

hand loan issued by the complainant. Placing reliance

on the oral evidence of PW.1 and PW.2 passed an order

of sentence as referred to supra.

5. Being aggrieved by the same, the accused

preferred an appeal before District Court in

Crl.A.No.5/2019. The learned Sessions Judge at

Tumakuru secured the trial Court records and after

hearing the parties in detail dismissed the appeal of the

accused and confirmed the order of the trial Court.

Being aggrieved by the same, the accused is before this

Court.

6. Learned counsel for the revision petitioner

has raised the following grounds in the revision petition.

• The impugned judgment of the learned Appellate Court dismissing the appeal filed by the petitioner, confirming the judgment and order of the trial Court is improper and illegal and the same is liable to be set aside. • The order of conviction passed by the learned trial judge is not based on proper evidence. The learned trial Judge has lost its sight in appreciating the evidence of the parties in proper perspective, as such the same leads to pass the impugned judgment and order.

• The learned trial Judge without applying his mind properly into the records and the pleadings, the impugned order has been passed, as such the same is liable to be set aside.

• The learned trial Judge did not applied his mind properly in appreciating the fact and circumstances of the case. The complainant has not produced any document to show that, he has financial transaction with the accused, in the absence of such document, it cannot be observed that, it is legally recoverable debt. Though, the learned trial Judge convicted the accused. Upon appeal filed, the Appellate Court has also confirmed the same. In the circumstances stated above, the order of conviction is liable to be set-aside.

• The learned trial Judge has failed to appreciate the records properly and rendered judgment erroneously, the same opposed to

law facts and circumstances of the case. Even in appeal also the learned Appellate Judge did not noticed the same, totally failed in appreciating the same.

• The complainant has failed to prove that, the amount involved is legally recoverable debt and no documents have been placed, this legal aspect did not noticed by the trial Judge and the appellate Court while passing the impugned judgment and order. On this ground alone the impugned judgments are liable to be set aside. • The accused has no contact with the complainant in any manner, the accused has adduced evidence to the said effect, and the same has not been properly appreciated by the trial Court and as well as the Appellate Court, as such the impugned judgments are liable to be set aside.

• There is lacuna and infirmities on the part of the trial Court and as well as on the part of the appellate Court in appreciating the evidence of the accused, the same requires to be re-appreciated at the hands of this Hon'ble Court.

• During the course of cross examined of PW-1, deposed that, at the time of leading money on the accused, Sri. Renukaradhya, who is the son-in-law of the complainant, was present, though, the complainant has not opted to examine him, as such it is very clear that, no transaction has been took place between the complainant and the accused. Hence the impugned orders are liable to be set-aside.

• The signature appeared on exhibit P-1 is not the signature of the accused, such

suggestion has been made to the complainant during the course of cross examination of PW-1 and the same is compared with his other signatures, the same does not tallied, such aspect has not been considered by the trial Court while passing the impugned order.

• The accused has taken contention that, he has not received the notice and the signature appeared on the postal acknowledgment is not belongs to him. The complainant has failed to prove the said fact in the manner known to law. On such ground the complaint filed is not maintainable and is lack of compliance on the part of the complainant.

• Viewed from any angle, the impugned orders are not sustainable either in law or on facts and the petitioner ought to have been held not guilty by the courts below and ought to have acquitted.

• The impugned order is not maintainable either in law or on facts; the same is liable to be set aside.

• The impugned judgments are oppose to law facts and circumstances of the case. The very interference at the hands of this Hon'ble Court is required to re-appreciate the evidence properly.

• The petitioner has not filed any other proceedings concerning to the subject matter of this revision petition before any other court either past or present.

7. Sri. Mohan. S, learned counsel for the

revision petitioner reiterating the grounds urged in the

revision petition contended that both the Courts have

wrongly convicted the accused resulting in miscarriage

of justice and sought for allowing the revision petition.

8. There is no representation today before this

Court on behalf of the respondent.

9. In the light of the arguments put forth by the

counsel for the revision petitioner, this Court perused

the records. The matter is yet to be admitted. On

perusal of the impugned judgments and the records, this

Court is of the considered opinion that no case is made