K Sunil Kumar vs S Manjunath
2022 Latest Caselaw 5752 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 30TH DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.407/2019

BETWEEN

K SUNIL KUMAR
S/O KRISHNA MURTHY
R/AT 49/E, 15TH MAIN
VIJAYANAGARA
BENGALURU-40

ALSO AT
BLUE STAR FAMILY RESTAURANT
B.M.ROAD, KUMBARA GATE
NEAR JANAPADA LOKA
RAMANAGAR TALUK
RAMANAGAR DISTRICT
                                            ...PETITIONER

(BY SRI B.M.LOKESH, ADVOCATE)

AND

S MANJUNATH
S/O SUBBAIAH
M/S SRI MANJUNATHA ENTERPRISES (P)
NO.205, 8TH MAIN ROAD
7TH 'A' CROSS, RPC LAYOUT
HAMPI NAGARA, VIJAYANAGARA
BENGALURU-560104
                                           ... RESPONDENT
(BY SRI RAGHAVENDRA H.S, ADVOCATE)
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      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION        397       R/W      401    CR.P.C      PRAYING      TO
SET    ASIDE       THE    JUDGMENT       DATED      13.10.2017     IN
C.C.NO.32860/2014 PASSED BY THE XXIII ADDITIONAL CHIEF
METROPOLITAN         MAGISTRATE     BENGALURU       (23RD    A.C.M.M)
BANGALORE AND ETC.



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



                               ORDER

This matter is listed for admission. Heard the learned

counsel appearing for the petitioner and the learned counsel

appearing for the respondent.

2. The factual matrix of the case of the

respondent/complainant before the Trial Court is that this

petitioner had approached the complainant for financial

assistance of Rs.5 lakh for the purpose of family necessity and

his personal needs and the said amount was paid by cash and

the petitioner was agreed to repay the same within five months.

When the complainant demanded money in the month of August

2014, the petitioner requested for one more month and he had

issued the post dated cheque dated 03.09.2014 and when the

cheque was presented, the same dishonoured with an

endorsement as 'funds 'insufficient' and notice was given to the

petitioner but he did not complied with the demand and hence,

the complaint was filed and Trial Court took the cognizance and

thereafter the petitioner was secured before the Trial Court and

the complainant/respondent examined himself as PW1 and got

marked the documents at Ex.P1 to P10. PW1 was not cross-

examined before the Trial Court by the counsel appearing for the

petitioner. The Trial Court after considering the material on

record and also considered the fact that the petitioner has not

disputed the issuance of cheque and signature and drawn the

presumption and also came to the conclusion that the petitioner

has not disputed the receipt of legal notice and thereby

committed an offence and hence, convicted him for the offence

punishable under Section 138 of N.I. Act. Being aggrieved by

the order of the Trial Court, an appeal was preferred in

Crl.A.No.599/2018. The Appellate Court also on reconsideration

of material on record particularly, Ex.P1 to P10, the documentary

evidence came to the conclusion that the documents supports

the case of the respondent and also came to the conclusion that

the cheque was not disputed and evidence of PW1 was also not

challenged and hence, dismissed the appeal. Hence, the present

revision petition is filed before this Court.

3. The learned counsel for the petitioner would submit

that the Trial Court has not given any opportunity to the

petitioner. On perusal of the judgment of the Trial Court, it

discloses that though the petitioner was represented through

counsel, PW1 was not cross-examined and in the 313 statement

of the petitioner, he totally denied the case of the respondent.

This petitioner has not led any defence evidence and also taken

note that the consent letter given by the petitioner in terms of

Ex.P10 and in paragraph 10 observed that PW1 was not cross-

examined and hence, taken as nil. When such being the case,

when there is no cross-examination and also no rebuttal

evidence, the question of exercising the revision and considering

the same on merits does not arise. The counsel has not made

out any grounds to admit the revision petition and the very

observation made in the order of the Trial Court is very clear

that inspite of the opportunity given to the counsel who was

appeared on behalf of the petitioner before the Trial Court, has

not cross-examined PW1 and even not led any defence evidence.

Hence, no merit to admit the revision petition. Accordingly, the

revision petition is dismissed.

Sd/-

JUDGE

SN