L Ramakrishnappa vs B Rajashekara
2023 Latest Caselaw 5115 Kant

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                                     CRL.RP No. 1011 of 2015



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 01ST DAY OF AUGUST, 2023
                         BEFORE
         THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 1011 OF 2015


BETWEEN:
L RAMAKRISHNAPPA
S/O. CHANNARAYAPPA
AGED ABOUT 55 YEARS
R/AT NO.561/20, GOKULA, 9TH CROSS
TRIVENI ROAD, YESHWANTHAPURA II STAGE
BANGALORE

AND ALSO AT:
HEAD MASTER, H.P.S.KARTHIKEYA VIDYALAYA
MAHADESHWARA NAGAR, SUNKADAKATTE,
BANGALORE.
                                                ...PETITIONER
(BY SRI. SIDDESWARA N K, ADVOCATE)

AND:
B RAJASHEKARA
S/O. BASAPPA
AGED ABOUT 65 YEARS
R/AT NO.204, 1ST CROSS
II STAGE, BRINDAVANA EXTENSION
MYSORE CITY.
                                               ...RESPONDENT
(BY SRI. S K SHIVAKUMAR, ADVOCATE)


     THIS CRL.RP IS FILED UNDER SECTION 397 R/W SECTION 401
OF CR.P.C., PRAYING TO SET ASIDE JUDGMENT DATED 24.06.2015
PASSED BY THE LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE CITY (CCH-66) IN CRL.A.NO.992/2014 AND ASLO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER DATED
18/08/2014 PASSED BY XII ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BANGALORE IN C.C.NO.7477/2012 AND ETC.,

      THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 28.06.2023, COMING ON FOR PRONOUNCEMENT
OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:
                                       -2-
                                               CRL.RP No. 1011 of 2015



                                     ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 18.08.2014 in C.C.No.7477/2012 on

the file of the Court of the XII Additional Chief Metropolitan

Magistrate, Bangalore and its confirmation judgment and order

dated 24.06.2015 in Crl.A.No.992/2014 on the file of the Court

of LXV Additional City Civil and Sessions Judge, Bangalore City

(CCH.No.66), seeking to set aside the concurrent findings

recorded by the Courts below, wherein the petitioner / accused

is convicted for the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 (for short "N.I Act").

Brief facts of the case are as under:

2. It is the case of the complainant that, the petitioner

/ accused is stated to be his friend and both were working in

the Education Department. Due to the said acquaintance, it is

stated that the petitioner approached the respondent /

complainant for financial assistance and for domestic

necessities and stated to have borrowed a sum of

Rs.1,70,000/-. It is stated that, the respondent paid the said

amount by way of cash. It was assured that the amount would

CRL.RP No. 1011 of 2015

be repaid to the respondent within a period of two to three

months. It is further stated that, after the lapse of three

months, when the respondent demanded the petitioner to

repay the amount, he had issued two post-dated cheques

bearing No.069997 dated 25.08.2011 and No.069998 dated

25.09.2011 for Rs.85,000/- each, drawn on Canara Bank,

Malleshwaram Branch, Bangalore, in favour of the complainant.

When those cheques were presented for encashment, the

respondent received a shara as "account dormant" and it was

intimated to the petitioner. On following the procedure, a

complaint was filed before the Magistrate having jurisdiction.

The Magistrate took cognizance of the said offence and

proceeded further in the case.

3. To prove the case, the complainant examined

himself as PW.1 and got marked Exhibits P1 to P16. On the

other hand, the petitioner herein examined himself as DW.1.

The Trial Court after appreciating the oral and documentary

evidence on record, convicted the petitioner for the offence

stated supra and sentenced him to pay fine of Rs.2,20,000/-.

Being aggrieved by the same, the petitioner preferred an

appeal before the Appellate Court, the Appellate Court

dismissed the appeal and confirmed the judgment of conviction

CRL.RP No. 1011 of 2015

rendered by the Trial Court. Being aggrieved by the same, the

petitioner has preferred this revision petition seeking to set

aside the concurrent findings.

4. Heard Shri Siddeswara N.K., learned counsel for the

petitioner and Shri S.K.Shivakumar, learned counsel for the

respondent.

5. It is the submission of the learned counsel for the

petitioner that, the Courts below failed to consider the

contradiction and omission and passed the impugned

judgments which are opposed to the facts and evidence on

record, hence the same is liable to be set aside.

6. It is the further submission of learned counsel for

the petitioner that, the Courts below while considering the

evidence of PW.1, has failed to notice the admission of PW.1

made during the cross-examination. According to PW.1,

cheques were given by Channappa to the respondent. Even

the lending of Rs.1,70,000/- to the petitioner has not been

proved. Such being the fact, convicting the petitioner for the

offence under Section 138 of NI Act, even though, the

ingredients of the provision has not been proved would

amounts to perversity and illegal. Hence, the learned counsel

CRL.RP No. 1011 of 2015

for the petitioner seeks indulgence of this Court to rectify the

error by exercising the Revisional jurisdiction.

7. Per contra, learned counsel for the respondent

vehemently justified the concurrent findings of the Courts

below and submits that, the acquaintance of the petitioner and

the respondent was narrated in the complaint and it was not

denied. Similarly, the cheque and its signature are also

admitted. However, the transaction and issuance of the cheque

through him was denied and the petitioner raised a defence

that there was no monetary transaction between himself and

the respondent was negatived by both the Courts and

concurrently held that, the petitioner found guilty of the offence

under Section 138 of N.I Act and he was sentenced to pay fine.

The findings recorded by the Courts below contained no

perversity or illegality. Hence, interference cannot be

warranted. Having submitted thus, learned counsel for the

respondent prays to dismiss the petition.

8. Having heard learned counsel for the respective

parties and also perused the findings of the Courts below, it is

necessary to have a re-look on the evidence of PW.1.

CRL.RP No. 1011 of 2015

9. It is stated in the evidence of PW.1 that, he had

lent a sum of Rs.1,70,000/- to the petitioner, in lieu of the

same, the petitioner had issued two cheques for Rs.85,000/-

each. When those cheques were presented for encashment,

they were dishonoured with a shara as "account dormant".

After following the procedure, the complaint was filed by him

before the Magistrate. In the cross-examination, he has

admitted that, he came to know the petitioner through one

Channappa and Mohan. When the particular question was put

to him that, there was no monetary transaction between the

petitioner and himself, PW.1 denied the same. However, he

has admitted that the cheques were received through

Channappa, stated to have belonged to the petitioner. It is

further admitted in the cross-examination that, the respondent

had paid Rs.1,70,000/- to Channappa relating to transfer of

Sharada Vidyalaya.

10. The evidence of PW.1 contains contradictions and

omissions relating to the transaction between the petitioner and

himself. In the complaint, PW.1 states that, he paid hand loan

of Rs.1,70,000/- to the petitioner, in lieu of the same, the

accused had issued two post dated cheques to repay the said

amount. However, in the cross-examination, he has admitted

CRL.RP No. 1011 of 2015

that, he had paid Rs.1,70,000/- to Channappa. The said

amount was given in relation to transfer of School from

Bengaluru to Bagalkot. The said Channappa had issued two

cheques of the petitioner to the respondent. This contradictory

statements should have been considered by the Trial Court.

11. On careful reading of the evidence of PW.1, the

respondent failed to prove that, the cheques which are in

dispute were issued by the petitioner to the respondent for

discharge of legally enforceable debt or liability. Thus, the

findings recorded by the Courts below in convicting the

petitioner appears to be erroneous and illegal. Hence, the

same is required to be set aside.

12. In the light of the observations made above, I

proceed to pass the following:-

ORDER

(i) The Criminal Revision Petition is allowed.

     (ii)     The   judgment      of   conviction   and    order   of

              sentence     dated       18.08.2014     passed       in

              C.C.No.7477/2012 by the Court of the XII

                                       CRL.RP No. 1011 of 2015



              Additional   Chief    Metropolitan      Magistrate     at

              Bangalore    and     judgment     and    order    dated

24.06.2015 passed in Crl.A.No.992/2014 by the

Court of LXV Additional City Civil and Sessions

Judge, Bangalore (CCH.No.66) are set aside.

(iii) The petitioner is acquitted for the offence under

Section 138 of Negotiable Instruments Act.

(iv) Bail bonds executed, if any, stand cancelled.

      (v)     The Trial Court is directed to refund the amount,

              if   any, deposited    by   the   petitioner     to   the

petitioner / accused, on proper identification.

Sd/-

JUDGE

BSS