Narasimharaju H vs R. Govindegowda
2023 Latest Caselaw 6006 Kant

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                                                       NC: 2023:KHC:30819
                                                   CRL.RP No. 367 of 2015




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 29TH DAY OF AUGUST, 2023

                                       BEFORE
                   THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                   CRIMINAL REVISION PETITION NO. 367 OF 2015
                BETWEEN:

                NARASIMHARAJU .H,
                S/O LATE HARLYANNACHAR,
                AGED ABOUT 57 YEARS,
                WORKING AT M/S L.G. BALAKRISHNA,
                AND BROTHERS LTD.,
                MYSORE SOUTH,
                MYSORE-577 001.
                                                            ...PETITIONER
                (BY SMT. MOHANA KUMARI .B.V, ADVOCATE FOR
                    SRI. ABUBACKER SHAFI, ADOVATE)

                AND:

                R. GOVINDEGOWDA,
                S/O LATE RAMEGOWDA,
                AGED ABOUT 55 YEARS,
                OPERATOR, M/S. L.G. BALAKRISHNA
Digitally       AND BROTHERS LTD.,
signed by       MYSORE SOUTH,
RENUKAMBA       MSYORE-577 001.
KG                                                         ...RESPONDENT
Location:       (BY SRI. S.A. MARUTHI PRASAD, ADVOCATE)
High Court of        THIS CRL.RP IS FILED U/S.397 AND 401 OF CR.P.C
Karnataka       PRAYING TO SET ASIDE THE JUDGMENT/ORDER DATED
                28.1.2015 PASSED BY THE V ADDL. DIST. AND S.J., MYSORE
                IN CRL.A.NO.143/2013 AND JUDGMENT AND ORDER DATED
                24.4.2013 PASSED BY THE IV ADDL. I C.J. AND J.M.F.C.,
                MYSORE IN C.C.NO.1617/2010 BY ALLOWING THE ABOVE R.P.
                AND ACQUIT THE PETITIONER.
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                                               NC: 2023:KHC:30819
                                         CRL.RP No. 367 of 2015




     THIS PETITION COMING ON FOR DICTATING ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
                           ORDER

This revision is filed by the revision

petitioner/accused challenging the judgment of conviction

and order of sentence passed by IV Additional I Civil Judge

& J.M.F.C., Mysore in CC.No.1617/2010 dated 24.04.2013

and confirmed by V Additional Sessions Judge, Mysore in

Crl.A.No.143/2013 vide judgment dated 28.01.2015.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case are

that the accused being the friend of the complainant has

approached him on 10.08.2009 and borrowed a sum of

Rs.75,000/- for his legal necessity agreeing to repay the

same in three months. However, he did not repaid the said

debt and when complainant has insisted, the accused has

issued a cheque dated 01.03.2010 and when the said

cheque was presented, it dishonoured for insufficient of

NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

funds. A legal notice came to be issued and in spite of

service of legal notice accused has not paid the cheque

amount and hence, complaint came to be lodged.

4. The learned Magistrate has taken cognizance

and in pursuance of the summons, accused has appeared

and was enlarged on bail. He has also denied accusation

under Section 138 of the Negotiable Instruments Act,

1881 (for short "N.I. Act). The complainant was examined

as PW1 and one witness was examined as PW2 and

complainant has placed reliance on nine documents

marked at Exs.P1 to P9. Thereafter, the statement of

accused under Section 313 Cr.P.C. was recorded and case

of the accused is of total denial. The accused also got

examined himself as DW1. However, he has not produced

any documentary evidence in support of his contention.

5. After having heard the arguments and after

appreciating the oral as well as documentary evidence, the

learned Magistrate has convicted the accused for the

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

NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

imposing a sentence of fine of Rs.77,000/- with default

sentence.

6. Being aggrieved by this judgment of conviction

and order of sentence, the accused has filed the appeal

before the V Additional Sessions Judge, Mysore, in

Crl.A.No.143/2013. The learned Sessions Judge after re-

appreciating the oral and documentary evidence, has

dismissed the appeal by confirming the judgment of

conviction and order of sentence passed by learned

Magistrate. Being aggrieved by these concurrent findings,

the accused is before this Court by way of this revision.

7. Heard the arguments advanced by the learned

counsel for revision petitioner and the learned counsel for

respondent. Perused the records.

8. The learned counsel for the revision petitioner

would contend that both the Courts below have failed to

appreciate the oral and documentary evidence in proper

perspective and have committed an error in convicting the

accused. Hence, he would seek for allowing the revision.

NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

9. Per contra, the learned counsel for the

respondent would support the judgment of conviction and

order of sentence passed by trial Court and confirmed by

the appellate Court. He would contend that the cheque

and signature have been admitted and presumption is in

favour of the complainant which is not rebutted and

hence, he would sought for dismissal of the revision.

10. Having heard the arguments and after

appreciating the oral and documentary evidence, now the

following point would arise for my consideration:

"Whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court are perverse, erroneous and arbitrary so as to call for any interference by this Court?"

11. It is the specific contention of the petitioner

that accused has availed a hand loan of Rs.75,000/- from

him assuring him of repayment within three months and

when he failed to do so, he has issued cheque under

NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

Ex.P1. The accused has taken the defense that the cheque

does not belong to his account. But to substantiate this

case accused has not produced any documents. The

signature on the cheque admittedly belongs to the accused

which is not under serious dispute. The simple dispute

raised by the accused is that cheque does not belongs to

him, but he did not disclose how this cheque came in

possession of the complainant. The accused in his 313

statement simply asserted that he has not issued the

cheque to complainant and did not availed the loan but

there is no explanation how the cheque belonging to

accused came in possession of the complainant. He is not

prepared to explain any of these aspects. The accused

though disputes his signature on the cheque when the

signature available on vakalath is compared under

Section 73 of the Evidence Act it is one and the same. The

accused has not taken any steps to dispute that Ex.P1

does not bear his signature. Both the Courts below have

appreciated the oral and documentary evidence in proper

perspective and have rightly convicted the accused.

NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

Further, PW2 who is the Manager has specifically deposed

that while opening the account accused has given a model

signature and the signature on the cheque tallies with

model signature. Hence, it is prima facie establish that the

cheque belongs to accused and it bears his signature. No

cogent and acceptable rebuttal evidence is produced by

the accused so as to draw a probable defense and so as to

rebut the presumption. Under such circumstances, both

the Courts below have rightly convicted the accused by

imposing a reasonable sentence. The judgment of

conviction and order of sentence passed by both the

Courts below cannot be said to be erroneous or arbitrary

so as to call for any interference. Accordingly point under

consideration is answered in negative. Hence, revision

petition being devoid of any merits, does not survive for

consideration. Accordingly, I proceed to pass the

following:

NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

ORDER

The revision petition stands dismissed.

Sd/-

JUDGE

DS