C N Suresha vs H S Rukmangadha
2023 Latest Caselaw 6087 Kant

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                                                      NC: 2023:KHC:31725
                                                 CRL.RP No. 325 of 2016




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 30TH DAY OF AUGUST, 2023

                                       BEFORE
                   THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                   CRIMINAL REVISION PETITION NO. 325 OF 2016
                BETWEEN:

                C.N. SURESHA,
                S/O H. NANJEGOWDA,
                AGED ABOUT 54 YEARS,
                NO.5424, RAVINDRA NAGAR,
                HASSAN CITY,
                HASSAN-572 112.
                                                           ...PETITIONER
                (BY SRI. NARENDRA GOWDA, ADVOCATE)
                AND:

                H.S. RUKMANGADHA,
                S/O SANJEEVAIAH .H.R,
                AGED ABOUT 51 YEARS,
                RESIDENT OF HALASINGAHALLI VILLAGE,
                KADAGA POST,
                SALAGAME HOBLI,
                HASSAN TALUK,
Digitally       HASSAN DISTRICT-572 112.
signed by                                                 ...RESPONDENT
RENUKAMBA       (BY SRI. M.N. MADHUSUDAN, ADVOCATE)
KG
                     THIS CRL.RP IS FILED U/S.397(1) R/W 401 OF CR.P.C
Location:       PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
High Court of   20.10.2012 PASSED BY THE ADDL. CIVIL JUDGE AND J.M.F.C.
Karnataka       AT HASSAN IN C.C.NO.319/2005 AND THE JUDGMENT AND
                ORDER DATED 11.11.2015 BY THE III ADDL. DISTRICT AND
                S.J. AT HASSAN, IN CRL.A.NO.151/2012 CONFIRMING THE
                JUDGMENT AND ORDER OF THE TRIAL COURT ON THE
                GROUND OF NON REBUTTAL BY THE APPELLANT AND NO
                ACTION TAKEN BY THE APPELLANT FOR RECEIVING BACK THE
                CHEQUE WITHOUT CONSIDERING THE FACTS AND MERITS OF
                THE CASE. AND PASS AN ORDER OF ACQUITTAL, ACQUITTING
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                                         NC: 2023:KHC:31725
                                    CRL.RP No. 325 of 2016




THE PETITIONER HEREIN OF THE CHARGE LEVELLED AGAINST
HIM.

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

This revision is filed under Section 397 r/w 401 of

Cr.P.C., challenging the judgment of conviction and order

of sentence passed by the Additional Civil Judge J.M.F.C.,

Hassan, in C.C.No.319/2005 vide judgment dated

20.10.2012 and confirmed by III Additional Sessions

Judge, Hassan, in Crl.A.No.151/2012 vide judgment dated

11.11.2015.

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 complainant and accused are friends and on

13.12.2003, the accused approached the complainant for

hand loan of Rs.2,25,000/- to meet his exigencies and

complainant advanced a hand loan on 23.12.2003. On the

same day accused issued a cheque dated 23.01.2004

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stating that the cheque will be honoured and when the

cheque was presented, it was returned with an

endorsement that account was closed. Thereafter, the

complainant has issued a legal notice to the accused and

accused in spite of service, did not repay the cheque

amount and hence, the complaint came to be lodged.

4. The learned magistrate has taken cognizance of

the offence and issued process against the accused.

Accused has appeared through his counsel and was

enlarged on bail. He has also denied the accusation.

5. The complainant has got examined himself as

PW1 and he placed reliance on Ex.P1 to Ex.P7. Thereafter

the statement of accused under Section 313 Cr.P.C. is

recorded to enable the accused to explain the

incriminating evidence appearing against him in the case

of the complainant. The case of the accused is of total

denial.

6. Accused has also got examined himself as DW1

and one witness was examined on his behalf as DW2.

After hearing the arguments and after appreciating the

NC: 2023:KHC:31725 CRL.RP No. 325 of 2016

oral and documentary evidence, the learned Magistrate

has convicted the accused by imposing the sentence of

fine of Rs.2,30,000/- with a default clause.

7. Against this judgment of conviction and order of

sentence, the accused has approached III Additional

Sessions Judge, Hassan in Crl.A.No.151/2012 and the

learned Sessions Judge after appreciating the oral and

documentary evidence, dismissed the appeal. Against

these concurrent findings, this revision is filed.

8. Heard the arguments advanced by the learned

counsel for the petitioner and learned counsel for the

respondent. Perused the records.

9. Learned counsel for the petitioner would

contend that both the Courts below have failed to

appreciate the oral and documentary evidence and have

given much importance to receipt of Rs.40,000/- and

drawn presumption in favour of the complainant which has

resulted in miscarriage of justice. He would also contend

that both the courts below have failed to appreciate the

evidence of DW1, regarding repayment of Rs.40,000/- and

NC: 2023:KHC:31725 CRL.RP No. 325 of 2016

hence, he would contend that the judgment of conviction

and order of sentence are not sustainable. As such, he

would seek for allowing the revision petition.

10. Per contra, learned counsel for the respondent

would support the judgment of conviction and order of

sentence. He would contend that this cheque and

signature on the cheque have been admitted and accused

has set up defence that he has only availed a loan of

Rs.40,000/- and repaid it, but to substantiate his defence,

he has not produced any material evidence and hence, he

would seek for dismissal of the revision petition.

11. It is undisputed fact that the cheque Ex.P1

belongs to the account of the accused and it bears his

signature. The accused has set up defence that about

eight years back he has taken Rs.40,000/- from

complainant and Ex.P1 was given to complainant as a

security and about four years back he has repaid the said

amount. By leading evidence the accused has virtually

admitted the financial transaction and the initial

presumption is in favour of the complainant under Section

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139 of the N.I. Act and accused is required to rebut the

said presumption

12. When accused is taking specific contention that

he has issued cheques as a security for Rs.40,000/- loan

and he has repaid it, the burden is on him to substantiate

his contention. The accused tried to rely on the evidence

of DW2, but his evidence again disclose that Rs.40,000/-

is paid but to substantiate the same no material evidence

is placed on record and in his 313 statement, no such

defence is forthcoming. The accused has not rebutted the

presumption and when he admits the issuance of cheque

as a security, in view of the presumption under Section

139 of the N.I. Act ,it has to be presumed that cheque is

issued towards legally enforceable debt and burden shifts

on accused to rebut the same. But except formal

assertion, the accused has not lead any material cogent

acceptable evidence. He has not even bothered to issue

reply notice to the complainant in this regard.

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13. Both the Courts below have appreciated the

oral and documentary evidence in proper perspective and

have rightly convicted the accused. The judgment of

conviction and order of sentence passed by both the

courts below does not suffer from perversity so as to call

for any interference. As such, the revision petition being

devoid of merits, does not survive for consideration and

accordingly, the revision petition stands dismissed.

Sd/-

JUDGE

DS