Srinivasa vs Krishna
2022 Latest Caselaw 5261 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 23RD DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.46/2020

BETWEEN:

SRINIVASA
S/O SRI VARADAIAH
AGED ABOUT 52 YEARS
R/AT MANGALAPURA
NEW DIPLOMA COLLEGE
OPPOSITE PETROL BUNK
CHENNARAYAPATTANA ROAD
MUDALAHIPPE POST
HOLENARASIPURA - 573 211
HASSAN DISTRICT.                          ... PETITIONER

        (BY SRI MUDUKANAGOUDA R. PATIL, ADVOCATE)
AND:

KRISHNA
S/O SRI SANJIVAIAH
AGED ABOUT 41 YEARS
R/AT ODANAHALLI VILLAGE
NIDUVANI POST, HALLI MYSURU TALUK,
HOLENARASIPURA TOWN
HASSAN DISTRICT-573 210.                 ... RESPONDENT

         (BY SRI VASUDEVA MURTHY N.S., ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C., PRAYING TO SET
ASIDE THE JUDGMENT OF CONFIRMING CONVICTION AND
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SENTENCE DATED 16.11.2019 PASSED BY THE III ADDITIONAL
DISTRICT    AND     SESSIONS       JUDGE, HASSAN    IN
CRL.A.NO.313/2018 AND SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 01.10.2018 PASSED BY
THE CIVIL JUDGE AND J.M.F.C., HOLENARASIPURA IN
C.C.NO.18/2014 BY CONVICTING THE PETITIONER FOR AN
OFFENCE P/U/S.138 OF THE N.I. ACT.

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

                                ORDER

This matter is listed for admission.

2. Heard the learned counsel appearing for the

petitioner and the learned Counsel appearing for the respondent.

3. This petition is filed under Section 397(1) read with

Section 401 of Cr.P.C., praying to call for the records and set

aside the judgment of confirming the conviction and sentence

dated 16.11.2019 in Crl.A.No.313/2018 passed by the III

Additional District and Sessions Judge, Hassan, and the

judgment of conviction and sentence dated 01.10.2018 in

C.C.No.18/2014 passed by the Civil Judge and JMFC.,

Holenarasipura and pass such other orders as deems fit in the

facts and circumstances of the case.

4. The factual matrix of the case of the

respondent/complainant before the Trial Court is that this

petitioner has approached him for financial assistance of

Rs.2,50,000/- for his business purpose. Accordingly, the

complainant/respondent has lent the amount and the

accused/petitioner has agreed to repay the amount within a

month and in that regard, he issued a cheque-Ex.P1. But he

failed to repay the amount. Hence, the cheque was presented

and the same was returned with an endorsement as 'Insufficient

Funds'. A legal notice was issued against him by way of UCP and

registered post, the same was duly served and he did not

comply with the demand. Hence, a complaint was filed and the

Trial Court took the cognizance and thereafter secured the

petitioner.

5. The complainant in order to prove his case examined

himself as P.W.1 and got marked the documents as Exs.P1 to

P5. Though P.W.1 was cross-examined, the petitioner did not

choose to lead any rebuttal evidence before the Trial Court.

6. The Trial Court after considering both oral and

documentary evidence and also drawing presumption under

Section 139 of the N.I.Act, convicted the petitioner. Hence, an

appeal is filed in Crl.A.No.313/2018 before the Appellate Court.

The Appellate Court on re-appreciation of both oral and

documentary evidence placed on record, dismissed the appeal.

Hence, the present revision petition is filed before this Court.

7. The main contention of the learned counsel for the

petitioner before this Court is that the orders passed by both the

Courts are perverse, capricious and not given sufficient

opportunity to the petitioner to subject the complainant to the

test of cross-examination in length. The other contention is that

drawing of presumption is also erroneous. Ex.P1 does not have

the character of the cheque. Hence, he seeks an interference of

this Court.

8. Per contra, the learned counsel appearing for the

respondent would submit that though P.W.1 was cross-

examined, nothing is suggested in the cross-examination of

P.W.1. The theory now set-forth before the Court. Apart from

that, notice was issued and the same was acknowledged and no

reply was given. The petitioner also not rebutted the evidence

by examining himself and there is no effective cross-examination

of P.W.1. In the absence of rebuttal evidence, the Trial Court

rightly convicted the petitioner herein. The Appellate Court also

on re-appreciation of the material taken note of both oral and

documentary evidence placed on record and also the

presumption under Sections 118 and 113 of the N.I.Act and

admittedly the cheque was issued by the petitioner herein and

rightly confirmed the judgment.

9. Having heard the respective counsel and also on

perusal of the material available on record, the complainant

mainly relied upon the document - Ex.P1, cheque and also the

legal notice - Ex.P3. Exs.P4 and P5 are the postal receipt and

postal acknowledgement, respectively. It is not the case of the

petitioner that the notice was not issued against him. Ex.P5

confirms the postal acknowledgement that the notice was duly

served on him and no defense was set up by giving any reply.

Now, the learned counsel for the petitioner would submit that

there was a dispute between the husband and wife i.e., this

petitioner and his wife. The wife of this petitioner had given the

cheque to the complainant and in order to substantiate the

contention while cross-examining P.W.1, nothing is suggested to

P.W.1 with regard to the contentions, which have been raised

before this Court.

10. It is also important to note that in the cross-

examination of P.W.1, nothing is elicited with regard to the

cheque is concerned. Only the defense was taken that he was

not having any source of income to make the payment and not

disputed the cheque. It is also the suggestion that this

petitioner is not having any acquaintance with the complainant

and the same has been denied. In order to prove the said fact

the petitioner did not choose to appear and give any evidence

before the Trial Court. However, the learned counsel brought to

the notice of this Court that cross-examination was completed on

24.08.2018. The order sheet reveals that after cross-

examination on 24.08.2018, a case was adjourned for defense

evidence and the date was fixed to 29.08.2018 and the accused

was absent and not led any evidence. Hence, posted the matter

for arguments. The records reveal that P.W.1 was examined

long back, considering the sworn statement, posted the matter

for cross-examination of P.W.1, fixing the date as 28.03.2018.

P.W.1 was present on that day. The accused was absent. Again

adjourned for cross-examination of P.W.1. P.W.1 was absent on

the next day and posted again for cross-examination and

thereafter stage was closed. Subsequently, P.W.1 is also

recalled on cost. P.W.1 was not cross-examined on several

occasions. Thereafter, finally listed to cross-examination of

P.W.1. On several occasions, time was given for cross-

examination of P.W.1, as a last chance; the same was taken as

NIL. Thereafter, an application was filed and again P.W.1 was

recalled and cross-examined on 24.08.2018. Hence, it is clear

that the very submission of no opportunity was given, cannot be

accepted. 313 statement was also recorded on 23.07.2018.

Thereafter, an application was filed for recalling of P.W.1 and

subsequently P.W.1 was recalled and cross-examined after 313

statement recorded. When such being the factual aspects, the

very contention that no opportunity was given, cannot be

accepted.

11. The learned counsel for the respondent brought to

the notice of this Court and the Appellate Court also, the learned

counsel for the petitioner did not choose to appear either before

this Court or before the Appellate Court. The Appellate Court

also taken note of the material available on record, confirmed

the order. Having taken note of though P.W.1 was cross-

examined nothing is elicited to disbelieve the case of the

complainant. First of all, no reply was given to the legal notice,

which was served on the petitioner herein and no defense

evidence also led before the Trial Court. The very new theory

set up before this Court is not supported by any evidence that

the cheque was given by the petitioner's wife in favour of the

complainant has not been substantiated and no cross-

examination to that effect. Only the cross-examination was

made with regard to the source of income is concerned, but not

disputed the signature available on cheque. When such being

the case, it is not a fit case to admit the revision petition. Hence,

the Revision Petition is dismissed.

Sd/-

JUDGE

cp*