K.K.Pradeepkumar vs K. Prem Kumar
2022 Latest Caselaw 3932 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 8TH DAY OF MARCH, 2022

                           BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          CRIMINAL REVISION PETITION NO.640/2013

BETWEEN:

K.K. PRADEEPKUMAR,
S/O K.E. KRISHNAIAH,
AGED ABOUT 37 YEARS,
R/O KOKERI VILLAGE,
CHAINDANE POST,
KODAGU DISTRICT-571 231.                     ...PETITIONER

           (BY SRI SANATH KUMARA K.M., ADVOCATE)

AND:

K. PREM KUMAR,
S/O KEMPAIAH.B,
AGED ABOUT 41 YEARS,
R/AT NO.2584/2, KALIDASA ROAD,
V.V. MOHALLA, MYSORE CITY.                  ...RESPONDENT

           (SRI K. PREMKUMAR, RESPONDENT SERVED)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTIONS 397 READ WITH 401 OF CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER PASSED IN CRL.A.NO.159/12 DATED
02.05.2013 PASSED BY THE II ADDL. SESSIONS JUDGE, MYSORE.
SET    ASIDE  THE   JUDGMENT    AND   ORDER   PASSED    IN
C.C.NO.1523/2008 DATED 23.08.12 PASSED BY THE PRL. I CIVIL
JUDGE     AND    JMFC,    MYSORE     AND    ACQUIT    THE
PETITIONER/ACCUSED.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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                              ORDER

Heard the learned counsel for the petitioner. The

respondent though served with notice, unrepresented.

2. The factual matrix of the case is that the

complainant had advanced an amount of Rs.2 lakhs in favour of

the petitioner herein on 01.06.2003 and the petitioner had

promised to repay the said amount within three months, but he

failed to repay the said amount and after repeated demands, he

issued a cheque dated 08.10.2003 for a sum of Rs.2 lakhs and

when the same was presented, it was returned with an

endorsement "funds insufficient". The complainant issued the

notice and the same was served on him on 21.11.2003 and he

failed to comply with the demand and also he did not choose to

give any reply. Hence, the complaint was filed and the

complainant examined himself as P.W.1 and also examined three

witnesses as P.W.2 to P.W.4 and the documents at Exs.P.1 to 9

were marked. The petitioner got examined himself as D.W.1

and got marked the document Ex.D.1 consideration receipt.

Before the Trial Court, the petitioner took the defence that he

availed the loan from Appacchu and not from the respondent and

the said Appacchu on receipt of the amount of Rs.50,000/- from

the petitioner, he had issued the consideration receipt. The said

defence of the petitioner herein was not accepted and the Trial

Court convicted the accused and sentenced him to undergo

simple imprisonment for a period of three months and to pay an

amount of Rs.3,10,000/- and in default, to undergo simple

imprisonment for a period of four months. Out of the fine

amount, a sum of Rs.3,05,000/- was payable to the complainant

and Rs.5,000/- to vest with the State. Being aggrieved by the

order of the Trial Court, the accused filed an appeal before the

Appellate Court in Crl.A.No.159/2012. The Appellate Court, on

reconsideration of the material available on record, confirmed

the judgment of the Trial Court relying upon the judgment of the

Hon'ble Apex Court in the case of RANGAPPA v. MOHAN

reported in 2010 AIR SCW 296 in coming to the conclusion

that there is a presumption in favour of the

complainant/respondent. Hence, the present revision petition is

filed before this Court.

3. The main contention of the learned counsel for the

petitioner before this Court is that the petitioner had borrowed

an amount of Rs.50,000/- from Appacchu @ Prakash and for the

security purpose, he had issued the cheque and the entire

amount was repaid on 15.04.2003 and in pursuance of the

same, the said Appacchu had issued the consideration receipt in

terms of Ex.D.1. Though the said Appacchu had stated that he

had misplaced the said cheque, the very same cheque is

presented by the respondent and the said security cheque was

misused by the respondent. Both the Courts failed to accept the

defence of the petitioner herein. Even the Appellate Court also

failed to consider the evidence adduced by the petitioner, who

has been examined as D.W.1 and not considered Ex.D.1. Hence,

it requires to exercise the revisional jurisdiction.

4. Having heard the learned counsel for the petitioner

and also on perusal of the material available on record, the

points that arise for the consideration of this Court are:

(i) Whether the Trial Court and the Appellate Court have committed an error in convicting and confirming the conviction and sentence and whether the orders suffer from any illegality, perversity or correctness?

(ii) What order?

Point No.(i):

5. Having heard the learned counsel for the petitioner

and on perusal of the material available on record, the subject

matter of the cheque Ex.P.2 is for an amount of Rs.2 lakhs. It is

important to note that the legal notice was issued to the

petitioner herein in terms of Ex.P.4 and the same is

acknowledged by the petitioner herein in terms of Ex.P.5. It is

important to note that when the notice was served on him, the

petitioner ought to have given reply that there was no any

transaction between him and the respondent and no such

attempt is made and only during the course of cross-

examination, the defence was set up that he borrowed the

amount from Appacchu and he repaid the amount and the said

Appacchu also given the consideration receipt in terms of Ex.D.1.

It is important to note that he relies upon Ex.D.1 and the same

is given by Appacchu and the learned counsel for the petitioner

submits that Appacchu was no more and hence he has not been

examined. But the fact is that when the notice was given

claiming the amount in the name of the respondent, no reply

was given and apart from that, the very contention that he

availed the loan from Appacchu and to prove the said fact also

not examined any witnesses, who comes and deposes before the

Court that there was a transaction between Appacchu and the

petitioner and no such effort is made. No doubt, Appacchu was

not there, but regarding transaction between Appacchu and the

petitioner, none of the witnesses have been examined and only

defence remains as defence and not proved. When such being

the factual aspects, the Trial Court and the Appellate Court have

considered the material available on record and I have already

pointed out that at the first instance, if the said defence was

raised by giving reply, there would have been force in the

contention of the learned counsel for the petitioner and only

after thought defence was taken and when the Appacchu is no

more, I do not find any error committed by the Trial Court and

the Appellate Court in convicting and sentencing the revision

petitioner.

6. Insofar as the contention regarding sentence is

concerned, the learned counsel for the petitioner would contend

that the cheque amount was Rs.2 lakhs and fine imposed by the

Trial Court is Rs.3,10,0000/- and apart from that, imposed the

sentence to undergo simple imprisonment for a period of three

months and in default of payment of fine, to undergo simple

imprisonment for a period of four months and hence this Court

has to modify the judgment of the Trial Court regarding sentence

is concerned. I have perused the material available on record

and according to the complainant, the transaction was taken

place in 2003 and an amount of Rs.2 lakhs was advanced and

the judgment was pronounced in 2012. While convicting the

petitioner, only a fine amount of Rs.3,10,000/- is imposed and

not the double the amount and instead of double the amount,

ordered to undergo simple imprisonment for a period of three

months and when such being the factual aspects, I am of the

opinion that there is no bar even for sentencing him for simple

imprisonment as well as fine. On that ground also, I do not find

any merit in the revision petition.

Point No.(ii):

7. In view of the discussions made above, I pass the

following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

MD