Manjegowda.G.V vs B.M.Yashodha
2021 Latest Caselaw 2608 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 5TH DAY OF JULY, 2021

                       BEFORE

  THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.1309 OF 2015


BETWEEN:


MANJEGOWDA.G.V
S/O VEERE GOWDA,
AGED ABOUT 47 YEARS,
LANDLORD & EX-MEMBER OF
TALUK PANCHAYATH,
MUNIYAPPA COMPOUND,
VEERABHADRESHWARA TEMPLE ROAD,
FORT EXTENSION,
CHICKMAGALUR-577 101.
                                           :PETITIONER

(BY SRI. S.G. RAJENDRA REDDY, ADVOCATE)

AND:


B.M.YASHODHA
D/O LATE B.S. MALAPPA,
AGED ABOUT 55 YEARS,
SECRETARY, CO-OPERATIVE SOCIETY,
BENNUR, BELUR TALUK,
HASSAN DISTRICT-573 115.

                                          :RESPONDENT

(BY SRI. K.G. SADASHIVAIAH, ADVOCATE)
                                                 Crl.RP 1309/2015
                                   2



      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING
TO SET ASIDE THE ORDER DATED 23.09.2013 PASSED IN C.C.
NO.1465/2006 BY LEARNED I ADDL. CIVIL JUDGE AND JMFC,
CHIKKAMAGALURU AND ALSO THE JUDGMENT AND ORDER
PASSED     IN    CRL.A.    NO.334/2013    DATED     17.11.2015    BY
LEARNED I ADDL. SESSIONS JUDGE, CHIKKAMAGALURU AND
ACQUIT THE PETITIONER OF THE OFFENCE UNDER SECTION
138 OF THE N.I. ACT, IN THE INTEREST OF JUSTICE.

      THIS      CRIMINAL    REVISION     PETITION   HAVING   BEEN
HEARD THROUGH PHYSICAL / VIDEO CONFERENCING HEARING
AND RESERVED FOR ORDERS ON 01.07.2021 COMING ON FOR
PRONOUNCEMENT THROUGH PHYSICAL/ VIDEO CONFERENCING
HEARING      THIS    DAY,    THE       COURT   PRONOUNCED        THE
FOLLOWING:
                              ORDER

The petitioner was the accused in the Court of

learned I Addl. Civil Judge and JMFC, Chikkamagaluru

(hereinafter referred to as 'the Trial Court) in C.C.

No.1465/2006 who was tried for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881

(for brevity, hereinafter referred to as 'the N.I. Act').

2. Summary of the case of the complainant in the

Trial Court is that on 10.10.2005, the accused in order to Crl.RP 1309/2015

purchase some land availed a loan of `1,50,000/- from the

complainant. Towards the repayment of the said loan

amount he issued a cheque bearing No.46900 dated

15.02.2006 for a sum of `1,50,000/-, drawn on

Chikmagalur Pattana Sahakara Bank Niyamita,

Chikmagalur, in favour of the complainant. The said

cheque when presented for its realisation by the

complainant through her banker returned with the banker's

endorsement as " not arranged for ". Thereafter the

complainant got issued a legal notice to the accused

demanding the payment of the cheque amount. However,

the accused did not pay the cheque amount which

constrained the complainant to institute a criminal case

against him in the Trial Court for the offence punishable

under Section 138 of the N.I. Act.

Since the accused pleaded not guilty, the trial was

held wherein the complainant got herself examined as

PW-1 and got marked documents from Exs.P1 to P5. The

accused got himself examined as D.W.1 and also examined

one Sri Siddegowda as D.W.2 but did not produce any Crl.RP 1309/2015

documentary evidence on his behalf. The Trial Court, after

hearing arguments from both side and considering the

material on record, by its impugned Judgment of

conviction and Order on sentence, convicted the accused

for the offence punishable under Section 138 of the N.I.

Act and sentenced him accordingly.

3. Aggrieved by the Judgment of the Trial Court,

the accused preferred an appeal in the Court of learned I

Addl. Sessions Judge at Chikkamagaluru (for brevity,

hereinafter referred to as 'Sessions Judge's Court') in

Crl.A. No.334/2013. Learned Sessions Judge, by Judgment

dated 17.11.2015 while confirming the Judgment of

conviction passed by the Trial Court, dismissed the appeal.

Aggrieved by the same, the accused has preferred this

revision petition.

4. The Trial Court and the Sessions Judge's Court

records were called for and the same are placed before the

Court.

Perused the materials placed on record.

Crl.RP 1309/2015

5. Respondent is being represented by her

learned counsel.

6. Heard submissions from both side learned

counsels.

7. The point that arises for my consideration is,

"whether the Judgment of conviction and Order on

sentence passed by the Trial Court and confirmed by the

Session Judge's Court is incorrect and suffers with any

illegality or perversity, warranting interference at the

hands of this Court?"

8. Learned counsel for the petitioner in his

arguments submitted that both the Trial Court as well the

Sessions Judge's Court have not appreciated the evidence

led by the parties in their proper perspective.

Per contra, learned counsel for the respondent

submitted that issuance of cheque as per Ex.P1 and its

dishonour as per Ex.P2, issuance of notice as per Ex.P3 are

not in dispute, hence the presumption about the existence Crl.RP 1309/2015

of legally enforceable debt in favour of the complainant

has been formed. He further submitted that the accused

failed to rebut the said presumption, as such, the Trial

Court as well the Sessions Judge's Court have rightly held

him guilty of the alleged offence.

9. It is not in dispute that the complainant and

the accused were known to each other. It is also not in

dispute that cheque at Ex.P1 is drawn by the accused and

the same came to be returned unpaid when presented for

its realisation by the complainant with the banker's

endorsement as per Ex.P2 which shows the reason as " not

arranged for". It is also not in dispute that after dishonour

of the cheque, the complainant got issued a legal notice to

the accused as per Ex.P3 demanding the payment of the

cheque amount.

10. The accused who got himself examined as

D.W.1, in his cross examination has admitted that he

received the notice issued to him by the complainant and

also acknowledged his signature on the postal Crl.RP 1309/2015

acknowledgement card which is at Ex.P4. Thus a

presumption about the existence of a legally enforceable

debt forms in favour of the complainant. However, the

said presumption is rebuttable.

In order to rebut the presumption formed in favour

of the complainant, the accused in the cross examination

of P.W.1 as well by himself examining as D.W.1 and also

examining one Sri Siddegowda as D.W.2 has taken a

contention in the form of defence that at the time of

purchasing the timbers of mango tree from the

complainant, he had issued the cheque in question as a

security. However, the sale transaction could not

materialise. But the complainant failed to return the said

cheque in spite of oral request made to her. The

suggestions made to P.W.1 in her cross examination on

these lines were not admitted as true by the said witness.

Similarly, the statement made by the accused as D.W.1

reiterating the same defence was denied in the cross

examination of the said witness. Therefore, it was upon Crl.RP 1309/2015

the accused to make out a case at least by preponderance

of probabilities in his favour to rebut the presumption that

was formed in favour of the complainant.

11. In his further attempt to rebut the presumption

formed in favour of the complainant under Section 139

of the N.I. Act, the accused also got examined one

Sri Siddegowda as D.W.2 who admittedly is a common

person known to both the complainant and the accused.

Said D.W.2 in his examination-in-chief has stated that

complainant had given some timbers of mango tree to the

accused under a sale. At that time, the accused had given

a cheque to the complainant. Except the said transaction,

there was no other transaction between the complainant

and the accused.

12. The evidence of D.W.2 when analysed in the

light of the evidence of P.W.1 it can be noticed that the

complainant as P.W.1 in her cross examination has

specifically stated that one week prior to the date of loan,

the accused along with Sri Siddegowda (D.W.2) had Crl.RP 1309/2015

approached her for a loan. However, on the date of giving

the loan to the accused, it was the accused alone who had

gone to her (complainant) and taken the loan amount.

The said statement of P.W.1 has remained undenied. That

makes it clear that on the date of receiving the loan

amount in cash by the accused from the complainant,

D.W.2 had not accompanied the accused. As such, D.W.2

was not aware of the said transaction. It is for said reason

he must have stated in his examination-in-chief that

except the transaction related to timbers no other

transaction had taken place between the accused and the

complainant. Therefore, the said evidence of D.W.2 would

not strengthen the defence of the accused. On the other

hand, as observed above, the accused has admitted that

the cheque at Ex.P1 was drawn by him and same came to

be dishonoured when presented for its realisation by the

complainant in which regard the complainant had also

issued a notice to the accused demanding the cheque

amount. The said evidence of P.W.1 could not be shaken

by the accused though he has cross examined P.W.1 and Crl.RP 1309/2015

led evidence from his side, as such, the presumption

formed in favour of the complainant crystalises.

13. It is after due analysis of the evidence since

the Trial Court has convicted the accused for the alleged

offence and passed the Order on sentence which is

proportionate to the gravity of the proven guilt and the

same was confirmed by Sessions Judge's Court, I do not

find any illegality or perversity in it warranting interference

at the hands of this Court. Accordingly, I proceed to pass

the following:

ORDER

The revision petition is dismissed as devoid of merit.

Registry to transmit copies of this order along with

Trial Court and Sessions Judge's Court records to the

concerned Courts, forthwith.

Sd/-

JUDGE

sac*