Sri. Narasimhappa vs Sri. K.N. Malla Reddy
2021 Latest Caselaw 1330 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF JANUARY, 2021

                           BEFORE

           THE HON'BLE MRS.JUSTICE M.G.UMA


    CRIMINAL REVISION PETITION NO.179 OF 2015

BETWEEN:

SRI.NARASIMHAPPA
SON OF CHIKKA PATTABHI
AGED ABOUT 54 YEARS
RESIDING AT KUNDAIAHALLI
MARATHAHALLI POST
BENGALURU-560 337.
                                       ... PETITIONER
(BY SRI:A.G.BALLOLLI, ADVOCATE (PH))


AND:

SRI.K.N.MALLA REDDY
SON OF NARAYANA REDDY
AGED ABOUT 53 YEARS
RESIDING AT NO.395,
CHOWDESWARI NILAYA
KUNDALAHALLI
MARATHAHALLI POST
BENGALURU-560 337.
                                       ...RESPONDENT
(BY SRI: P.N.NANJA REDDY, ADVOCATE (VC))

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 CR.P.C. BY THE ADVOCATE FOR
THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE IMPUGNED JUDGMENT DATED
17.10.2014 PASSED BY THE PRESIDING OFFICER AND
ADDL.SESSIONS JUDGE, FAST TRACK COURT-III MAYO HALL,
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BANGALORE CITY IN CRL.A NO.25030 OF 2013 AND ALSO THE
JUDGMENT AND CONVICTION ORDER DATED 17.01.2013
PASSED BY THE XIV-ACMM COURT, BANGALORE IN
C.C.NO.35395 OF 2010 AND CONSEQUENTLY DISMISS THE
COMPLAINT OF THE RESPONDENT AND ALLOW THIS REVISION
PETITION WITH COST.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT PASSED THE
FOLLOWING:

                             ORDER

The accused has preferred this revision petition

aggrieved by the impugned judgment of conviction and

order of sentence dated 17.01.2013 passed in

C.C.No.35395 of 2010 by the learned XIV Additional Chief

Metropolitan Magistrate, Bengaluru, (for short 'the Trial

Court'), convicting him for the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881 (for

short 'NI Act') and sentencing him to pay a fine of

Rs.4,15,000/-, failing which, to undergo simple

imprisonment for a period of one year, which was

confirmed by the judgment dated 17.10.2014 passed in

Criminal Appeal No.25030 of 2013 by the Fast Track Court-

III, Mayohall, Bengaluru (for short 'the First Appellate

Court').

2. Brief facts of the case are that, the respondent

herein is the complainant. He filed the private complaint

against the revision petitioner-accused for the offence

punishable under Section 138 read with 142 of NI Act,

contending that the accused had borrowed the loan of

Rs.4,00,000/- to meet his domestic requirements during

December, 2009. The accused had promised to repay the

same within three months. But, however, he had not

repaid the same. On 07.04.2010, the accused issued

cheque bearing No.808630 for a sum of Rs.4,00,000/-

drawn on Indian Overseas Bank Limited, Brookefield

Branch, Bengaluru, with a promise to arrange for sufficient

amount in his account. The cheques were presented for

encashment through his banker i.e., State Bank of India.

But the said cheque was dishonored as there was

'insufficient funds' in the account of the accused on

presentation for encashment. Immediately, after receiving

intimation about dishonor of cheque, the complainant

issued the legal notice as per Ex.P3 informing the accused

regarding the same and calling upon him to repay the

cheque amount. The said notice was served on the

accused as per the postal acknowledgment Ex.P6 and in

spite of that, the accused neither repaid the cheque

amount nor sent any reply. Thereby, he has committed the

offence punishable under Section 138 of the NI Act and

prayed for convicting the accused for the offence

punishable under Section 138 of the NI Act.

3. The Trial Court after taking cognizance of the

offence, summoned the accused. His plea was recorded.

The accused pleaded not guilty for the offence punishable

under Section 138 of the NI act. The complainant

examined himself as PW1 and got marked Exs.P1 to P7 in

support of his contention. The accused denied all the

incriminating materials available on record in the

statement recorded under Section 313 of Cr.P.C and

examined himself as DW1 and also examined DW2 and got

marked Exs.D1 to D12 in support of his defence. The Trial

Court after taking into consideration all these materials on

record, came to the conclusion that the complainant has

proved the existence of legally recoverable debt, issuance

of cheque and its dishonor and thereby proved the guilt of

the accused beyond reasonable doubt. Therefore,

convicted the accused as aforesaid.

4. Aggrieved by the said judgment of conviction

and order of sentence, the accused had preferred Criminal

Appeal No.25030 of 2013 before the First Appellate Court.

The First Appellate Court also considered the material on

record and came to the conclusion that there are no merits

in the appeal and confirmed the judgment of conviction

and order of sentence passed by the Trial Court. Now, the

accused is before this Court challenging the concurrent

finding of conviction recorded by the Trial Court as well as

by the First Appellate Court.

5. Heard Sri.A.G.Ballolli, learned Counsel for the

revision petitioner who is physically present before the

Court and Sri.P.N.Nanja Reddy, learned Counsel for the

respondent through video conference and perused the

materials including the Trial Court records.

6. It is the specific contention of the complainant

that he had lent an amount of Rs.4,00,000/- to the

accused during December 2009 and towards repayment of

the said amount, the accused had issued Ex.P1. On going

through the cross examination of PW1 - the complaint and

also the evidence of the accused examined as DW1, it is

clear that the accused has never disputed the issuance of

cheque - Ex.P1. It is his contention that DW2 had

borrowed the amount from the complainant and as a

guarantor, he has issued the cheque in question. The

issuance of the cheque and his signature found thereon is

admitted in clear terms. Even DW2 does not dispute the

issuance of cheque - Ex.P1 by the accused in favour of the

complainant.

7. It is the contention of the learned counsel for

the revision petitioner that the legal notice Ex.P3 was

never served on the accused. The postal receipt and postal

acknowledgment are as per Exs.P3 and 6. The

complainant has deposed regarding Exs.P3 and 6. But

strangely there is absolutely no cross examination to PW1

on these documents. Even when the accused is examined

as DW1, he has not stated anything regarding these

documents.

8. When the accused has admitted issuance of

the cheque with his signature found on it, the presumption

under Section 139 of the NI Act arises and it is for the

accused to rebut the said presumption. In the present

case, even though the accused has stepped into the

witness box and deposed as DW1 and examined DW2,

presumption under Section 139 is not rebutted. The

defence taken by the accused that he is only a guarantor

for the loan transaction between the complainant and DW2

does not absolve him from liability under Section 138 of NI

Act.

9. I have gone through the impugned judgments

passed by the Trial Court and also by the First Appellate

Court. Both the Courts have considered the materials that

are available and recorded the finding that the complainant

has proved the guilt of the accused for the offence

punishable under Section 138 of NI Act beyond reasonable

doubt. I do not find any reason to interfere with the said

judgment. Hence, I am of the opinion that criminal

revision petition is devoid of merits and liable to be

dismissed.

Accordingly, the Criminal Revision Petition is

dismissed.

Sd/-

JUDGE

*bgn/-