Shri N.A.Vasantha vs Shri K.S.Chandrashekar
2023 Latest Caselaw 2210 Kant

                                       -1-
                                             CRL.RP No. 1345 of 2019




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 13TH DAY OF APRIL, 2023

                                    BEFORE
                THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                CRIMINAL REVISION PETITION NO. 1345 OF 2019
             BETWEEN:

             SHRI N.A.VASANTHA,
             S/O LATE ANANDRAM BAHT,
             AGED ABOUT 59 YEARS,
             R/AT THYAGARAJA ROAD,
             KOPPA-577 126,
             CHIKKAMAGALURU DIST.
                                                        ...PETITIONER
             (BY SRI. NAGENDRA SHETTY, ADVOCATE)

Digitally    AND:
signed by
GAYATHRI
PG           SHRI K.S.CHANDRASHEKAR,
Location:    S/O LATE SUBBANNA,
High Court
of           AGED ABOUT 56 YEARS,
Karnataka
             MERCHANT,
             R/AT THYAGARAJA ROAD,
             KOPPA-577 216,
             CHICKMAGALURU DIST.
                                                      ...RESPONDENT
             (BY SRI. GIREESHA KODGI., ADVOCATE)

                  THIS CRL.RP FILED U/S.397 R/W 401 OF CR.P.C BY THE
             ADVOCATE FOR THE PETITIOENR PRAYING THAT THIS HONBLE
             COURT MAY BE PLEASED TO (a) SET ASIDE THE JUDGMENT
             AND ORDER OF CONVICTION CONFIRMED IN CRIMIANL
             APPEAL NO.190/2018 PASSED BY THE HONBLE II ADDITIONAL
             DISTRICT AND SESSIONS JUDGE, AT CHICKMAGALURU DATED
             31.08.2019 AND (b) ALSO FURTHER THE JUDGMENT AND
             ORDER OF CONVICTION PASSED BY THE HONBLE CIVIL JUDGE
             AND JMFC, KOPPA, IN C.C.NO.349/2015 DATED 17.11.2018
             AND (c) ACQUIT THE PETITIONER/ACCUSED FROM THE
             CHARGES U/S.138 OF NI ACT.
                                -2-
                                     CRL.RP No. 1345 of 2019




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

                           ORDER

This criminal revision petition by the accused under

Section 397 of Cr.P.C. is filed challenging the judgment

and order of conviction and sentence passed by the Court

of Civil Judge & JMFC, Koppa in C.C.No.349/2015 dated

17.11.2018 and the judgment and order dated 31.08.2019

passed by the Court of II Addl. District & Sessions Judge,

at Chikkamagaluru in Crl.A.No.190/2018.

2. Heard the learned counsel for the parties.

3. Facts leading to filing of this criminal revision

petition narrated briefly are:

The respondent/complainant had filed a complaint

under Section 200 of Cr.P.C. against the petitioner for the

offence punishable under Section 138 of N.I. Act

contending that the petitioner had borrowed a sum of

Rs.1,90,000/- from him on 02.01.2015 for his urgent

necessities and towards repayment of the said amount the

CRL.RP No. 1345 of 2019

petitioner had issued a cheque bearing No.017111 dated

15.03.2015 drawn in his favour for a sum of Rs.1,90,000/-

The said cheque on presentation for realization was

dishonoured with a banker's endorsement 'funds

insufficient'.

4. The complainant thereafterwords issued a legal

notice in compliance of statutory requirement as provided

under Section 138(b) of N.I. Act. The said notice was duly

served on the petitioner on 07.04.2015. Inspite of service

of the legal notice, the petitioner had not paid the amount

covered under the cheque in question nor had he replied

to the said notice. It is under these circumstances, the

respondent had filed a complaint against the petitioner.

5. In the said proceedings, the petitioner had

appeared before the trial Court and pleaded not guilty and

the respondent/complainant in order to prove his case had

examined himself as PW.1 and got marked five documents

as Exs.P1 to P5. The petitioner had denied the

incriminating circumstances available on record during the

CRL.RP No. 1345 of 2019

course of his Section 313 Cr.P.C. statement. He also

examined himself as DW.1 in support of his defence. The

trial Court thereafter heard the arguments addressed on

both sides and by its judgment and order dated

17.11.2018 convicted the petitioner for the offence

punishable under Section 138 of N.I. Act and sentenced

him to pay fine of Rs.2,05,000/-.

6. The appeal filed by the petitioner against the

said judgment and order of conviction and sentence

passed by the trial Court was dismissed by the Appellate

Court on 31.08.2019. It is under these factual

background, the petitioner is before this Court.

7. Learned counsel for the petitioner submits that

the petitioner had borrowed only a sum of Rs.22,500/-

from the respondent and the entire borrowed amount was

paid with interest to the respondent and the cheque in

question which was issued as a security for the said

transaction was misused by the respondent. He submits

that there is no proof that the petitioner had borrowed a

CRL.RP No. 1345 of 2019

sum of Rs.1,90,000/- from the respondent and therefore

the Courts below are not justified in convicting the

petitioner for the offence punishable under Section 138 of

N.I. Act.

8. Per contra, learned counsel for the respondent

has argued in support of the impugned judgment and

order of conviction and sentence and submits that the

defence raised by the petitioner has not been proved by

him by producing any evidence before the Courts below

and therefore, the Courts below are justified in convicting

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

Act.

9. I have given my anxious consideration to the

arguments addressed by both sides and also perused the

material available on record.

10. The complainant in order to substantiate his

case had examined himself as PW.1 and also got marked

five documents as Exs.P1 to P5. Ex.P1 is the original

CRL.RP No. 1345 of 2019

cheque issued by the petitioner in favour of the

respondent drawn on Karnataka Bank, Narve Branch,

Koppa. The signature found in the said cheque is not

seriously disputed by the petitioner and it is also not in

dispute that the cheque is drawn on the bank account

maintained by the petitioner in Karnataka Bank, Narve

Branch. Having regard to the same, there is a

presumption available against the petitioner under Section

139 of N.I. Act that the cheque in question has been

issued by the petitioner to the respondent towards

discharge of his legally recoverable debt. The petitioner

had taken a defence before the trial Court that he had only

borrowed a sum of Rs.22,500/- from the respondent and

he had repaid the entire amount borrowed by him with

interest to the respondent. It is also his case that the

cheque in question was issued as a security for the

aforesaid transaction and the same was misused by the

respondent. However, this defence raised by the

petitioner has not been probabalized by him by producing

necessary evidence before the trial Court. Though the

CRL.RP No. 1345 of 2019

petitioner was served with a statutory notice as provided

under Section 138 (b) of N.I. Act, he had not replied to the

same. The complaint filed by the respondent is in

compliance of the requirement of law. The presumption

that arose against the petitioner that the cheque in

question was issued towards discharge of his legally

recoverable debt was not successfully rebutted by him by

raising a probable defence.

11. Under the circumstances, the Courts below

were fully justified in convicting the petitioner for the

offence punishable under Section 138 of N.I. Act. Even the

sentence imposed by the Courts below against the

petitioner is just and proper and therefore, I find no good

reasons to interfere with the concurrent findings recorded

by the Courts below against the petitioner.

The revision petition is devoid of merit and therefore,

the same is dismissed. The amount in deposit, if any,

either before the Appellate Court or before the trial Court

is permitted to be withdrawn by the respondent.

CRL.RP No. 1345 of 2019

Registry is directed to return the trial Court records

forthwith.

Sd/-

JUDGE PGG