Smt Jayamma vs Smt Jayamma @ Nagamma
2023 Latest Caselaw 1165 Kant

                            1
                                                            R
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF FEBRUARY, 2023

                         BEFORE

 THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

       CRIMINAL REVISION PETITION NO.6 OF 2014

BETWEEN:

SMT. JAYAMMA,
W/O NARASAPPA,
AGED ABOUT 50 YEARS,
HOSTEL COOK,
R/O BEHIND VETERINARY HOSPITAL,
SUBASH NAGAR, KADUR TOWN,
KADUR TALUK,
CHIKMAGALUR DIST-577 548.
                                            ...PETITIONER

(BY SRI. K.S.GANESHA, ADVOCATE)

AND:

SMT.JAYAMMA @ NAGAMMA,
W/O DODDARANGAIAH, AGED ABOUT
60 YEARS, R/O SUBASH NAGAR,
KADUR TOWN, KADUR TALUK,
CHIKMAGALUR DISTRICT-577 548.

                                          ...RESPONDENT

(BY SRI. SHAHNAWAZ M. MAMADAPUR, ADVOCATE)

       THIS CRL.RP IS FILED UNDER SECTION 397 AND 401 OF
Cr.P.C. PRAYING TO SET ASIDE THE JUDGEMENT DATED
                                 2


13/11/2013 PASSED BY THE 2ND ADDL. DIST & SESSIONS
JUDGE, CHIKMAGALUR IN CRL. APPEAL NO.152/2013 AND ALSO
SET ASIDE THE JUDGMENT DATED 05.03.2013 PASSED BY THE
PRL.CIVIL JUDGE AND JMFC, KADUR IN C.C.NO.401/2008 AND
DIRECT   THAT    THE   PETITIONER     BE   ACQUITTED,    IN   THE
INTEREST OF JUSTICE AND EQUITY.


      THIS CRL.RP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 27.01.2023, POSTED FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:


                            ORDER

1. The Revision Petitioner being aggrieved by the Judgment

dated 13.11.2013 passed by the II Addl. Dist. & Sessions Judge,

Chikkamagalur in Crl. A. No.152/2013 dismissing her appeal

against the Judgment of conviction and sentence passed by the

Prl. Civil Judge & JMFC, Kadur, in C.C. No.401/2008 dated

05.03.2013 has preferred this Revision Petition.

2. The parties to this Revision Petition are referred to as per

their rank before the Trial Court, for convenience.

3. The brief facts leading up to this revision petition are as

under:

That The complainant and accused are known to each

other. It is alleged that, accused approached the complainant

for financial assistance for her family necessities and benefits.

Accordingly, complainant advanced a loan of Rs.1,00,000/- in

the first week of October, 2007 to the accused. In discharge of

the said legal liability, it is alleged that, accused issued a cheque

bearing No.0775854 dated 30.10.2007 for Rs.1,00,000/- drawn

on Chikmagalur-Kodagu Grameena Bank, Kadur. It is further

alleged that, when the said cheque was presented for

encashment through the banker of the complainant i.e., Canara

Bank on 21.01.2008, the said cheque came to be dishonoured as

per the endorsement dated 29.01.2008 as "funds insufficient".

The complainant has intimated the same to the accused on

03.02.2008. Thereafter, she got issued the legal notice to the

accused on 08.02.2008 demanding the repayment of the cheque

amount. But accused failed to pay the demanded amount.

Thereafter, the complainant filed a complaint under Section 200

Cr.P.C. before the Trial Court alleging offence under Section 138

of the Negotiable Instruments Act against the accused.

4. On filing the complaint, the learned Trial Court took

cognizance of the offence, recorded sworn statement of the

complainant, issued process against accused and secured her

presence. She was enlarged on bail. The Trial Court recorded

the substance of accusation, accused pleaded not guilty and

claimed to be tried.

5. To substantiate the case of the complainant, she herself

examined as P.W.1 and marked documents on her behalf as

Exs.P1 to P6. After closure of the evidence of the complainant,

accused was questioned under Section 313 Cr.P.C. so as enable

her to answer the incriminating circumstances appearing in the

evidence of the prosecution. She denied her complicity in the

crime. She submitted before the Trial Court that, she wants to

lead defence evidence. Accordingly, by way of defence evidence,

she entered witness box as D.W.1. She also examined one more

person as D.W.2 on her behalf and marked documents at Exs.D1

to D10 and closed her evidence.

6. The learned Trial Court after hearing arguments of both

sides, passed the impugned Judgment of conviction and

sentence for the offence punishable under Section 138 of the

N.I. Act and directed the accused to pay a fine of Rs.2,00,000/-

and in default of payment of fine, she shall undergo simple

imprisonment for a period of four months. It is further ordered

that, out of the fine amount, a sum of Rs.1,95,000/- be paid to

the complainant as compensation amount. Being aggrieved by

the said Judgment of conviction and sentence, accused preferred

Crl.A. No.152/2013 before the II Addl. Dist. and Sessions Judge,

Chikmagalur, being the First Appellate Court.

7. The learned First Appellate Court, after hearing both sides,

dismissed the said appeal on 13.11.2013 confirming the

Judgment of conviction and sentence passed by Principal JMFC,

Kadur in C.C. No. 104/2008, dated 05.03.2013. This is how,

being aggrieved by the concurrent findings of the Trial Court as

well as the First Appellate Court, the revision petitioner being

accused has preferred this revision petition on the following

grounds:

8. That the Trial Court and First Appellate Court have passed

the Judgment which is against the law and facts. Therefore, the

said Judgments are liable to be set aside. It is further stated

that, the First Appellate Court in the absence of a cogent

evidence, erred in holding that the Revision Petitioner - accused

has received cheque i.e., Ex.P1 for a consideration from the

complainant which is erroneous. The complainant has not placed

any material before the Trial Court to show that, she has paid

Rs.1,00,000/- to the accused -Revision Petitioner. Even then, the

Trial Court and First Appellate Court have believed the testimony

of P.W.1 and convicted the Revision Petitioner - accused.

Though it is stated by the Revision Petitioner alleging that, the

income she derives is sufficient for her livelihood and she is not

having any amount, even then, the Trial Court has convicted the

accused - Revision Petitioner. It is very much clear from the

evidence of complainant - respondent that she had no capacity

to pay such huge amount of Rs.1,00,000/- to the Revision

Petitioner.

9. It is further stated that, Ex.P1 has been issued to one

Jayamma. Admittedly, name of respondent is Nagamma.

Though the respondent says that she is called as Jayamma, but

no document is produced to substantiate the same. The

Revision Petitioner has produced documents to show that, her

name is Nagamma. It is further stated that, the respondent is

not the holder of Ex.P1 cheque. As such, the provisions of

Section 139 of the N.I. Act cannot be extended so to benefit the

respondent i.e. the complainant. The findings of the Trial Court

and First Appellate Court are not proper and such findings are

without proper appreciation of the evidence so led by the

accused. Even there is an admission by P.W.1 that, there are no

financial transactions between complainant and accused. This

itself is sufficient to dismiss the complaint. Amongst other

grounds, it is prayed to set aside the impugned Judgment of

conviction and sentence passed by the Trial Court, affirmed by

the First Appellate Court.

10. After filing this Revision Petition, notice came to be issued

and respondent appeared before the Court through her counsel.

The Trial Court records are secured.

11. Heard the arguments of learned counsel for both sides.

Meticulously perused the records.

12. Before adverting to other aspects of the case, let me

analyse certain factual features that emerge from the facts of

this case.

13. It is the allegation of the complainant that this revision

petitioner being accused, issued a cheque for Rs.1,00,000/-,

bearing No.0775854 dated 30.10.2007 drawn on Chikmagalur-

Kodagu Grameena Bank, Kadur, in discharge of a legal debt for

having received the amount from the complainant to meet her

financial necessities. The said cheque was presented by the

complainant on 21.01.2008 before the banker of the

complainant i.e. Canara Bank. The said cheque was returned

with an endorsement "funds insufficient" on 29.01.2008. On

03.02.2008, an intimation was issued by the complainant to the

accused that cheque issued by the accused was dishonoured.

Thereafter, within the statutory period, she issued a demand

notice on 08.02.2008. The said notice was not served and the

accused managed to return the same. The said notice was also

sent through Certificate of Posting. Thereafter, accused did not

pay the amount. Then the complainant filed a private complaint

under Section 200 Cr.P.C. against the accused for the offence

punishable under Section 138 of the N.I. Act. The said complaint

was registered after recording sworn statement. Trial was

conducted against the accused. The learned Trial Court passed

the Judgment of conviction and sentence as stated supra. Being

aggrieved, the accused preferred Crl.A. No.152/2013 before the

II Addl. Dist. and Sessions Judge, Chikmagalur. The said appeal

came to be dismissed on 13.11.2008. These are the calendar of

events that have taken place in this case.

14. Law with regard to offence under Section 138 of the N.I.

Act is very much laid down. Before appreciation of the position

of law, and facts of this case, one must read the provisions of

Sections 138 and 139 of the N.I. Act. They read as under:

"Section 138:

Dishonour of cheque for insufficiency, etc., of funds in the account:

[Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either

because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless--

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.-- For the purposes of this section, debt of other liability means a legally enforceable debt or other liability.

Section 139. Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."

15. Thus, after reading the settled line of precedents so to say,

a meaningful reading of the provisions of the N.I. Act including in

particular, Sections 20, 87 and 139 make it amply clear that, a

person who signs a cheque and makes it over to a payee

remains liable unless he adduces evidence to rebut the

presumption that the cheque had been issued for payment of a

debt or in discharge of a liability as held by the Hon'ble Supreme

Court of India in Bir Singh Vs. Mukesh Kumar, reported in

(2019) 4 SCC 197. It is further held in the said Judgment that,

it is immaterial that the cheque may have been filled in by any

person other than the drawer, if the cheque is duly signed by the

drawer, If the cheque is otherwise valid, penal provisions of

Section 138 would be attracted. In para 34 of the said Judgment

the Hon'ble Supreme Court of India has held as under:

"34. If signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque was not in discharge of a debt or liability by adducing evidence."

16. It is held by the Hon'ble Supreme Court of India in Crl.A.

No.1260/2022 (arising from SLP (Crl) No.9836 of 2019)

disposed of on 16.08.2022 as under:

"15. A drawer who signs a cheque and hands it over to

the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under Section 139.

16. In Anss rajashekar v. Augustus Jeba Ananth[ (2020) 15 SCC 348] a two Judge Bench of this court, of which one of us (D.Y. Chandrachud J.) was a part, reiterated the decision of the three-Judge Bench of this Court in Rangappa v. Sri Mohan [ (2010) 11 SCC 441]

on the presumption under Section 139 of the NI Act. The court held:

12. Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability. the expression "unless the contrary is proved"

indicates that the presumption under Section 139 of the Act is rebuttable. Terming this as an example of a "reverse onus clause" the three- Judge Bench of this Court in Rangappa held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by preponderance of probabilities. This court held thus:

"28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under section 139, the standard of proof for doing so is that of "preponderance of probabilities".

Therefore, if the accused is able to raise existence of a legally enforceable debt of

liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."

17. Thus, the object of Section 138 of the N.I. Act is to infuse

credibility to negotiable instruments including cheques and to

encourage and promote the use of negotiable instruments

including cheques in financial transactions. The penal provision

of Section 138 of the N.I. Act is intended to be a deterrent to

callous issuance of negotiable instruments such as cheques

without serious intention to honour the promise implicit in the

issuance of the same.

18. Keeping in mind the aforesaid legal position, now let me

analyse that, whether the Trial Court is right in convicting and

sentencing the accused and the First Appellate Court is justified

in affirming the Judgment of Principal JMFC, Kadur?

19. P.W.1 being the complainant has given evidence on par

with the allegations made in the complaint. She relies upon a

cheque Ex.P1, memos, Exs.P2 and P3, legal notice Ex.P4, UCP

receipt Ex.P5 and returned cover Ex.P6. She has been

intensively cross-examined by the counsel for the accused before

the Trial Court.

20. So far as issuance of statutory notice is concerned, there is

a suggestion to P.W.1 in the cross-examination that, notice was

issued by the complainant to the accused. It is also suggested

that, a notice is being sent by her. That means, this suggestion

goes to establish that, a statutory notice is being issued by the

complainant and it is being known to the accused.

21. It is the specific defence of the accused that, this

complainant is not Nagamma but Jayamma. So taking advantage

of these two names of this complainant, it is suggested to P.W.1

that, whether she is called as Jayamma also. She has deposed

that she is also called as Jayamma. So far as the name of

complainant as Nagamma or Jayamma is concerned, though it is

highlighted by the counsel for the accused that this Nagamma is

not Jayamma etc. but both complainant and accused adduced

the evidence identifying the complainant as Nagamma and

Jayamma. That means she is called as Nagamma as well as

Jayamma. Therefore, there is no substance in the submission of

the counsel for the accused that, the said cheque was misused

etc. by the complainant.

22. So far as capacity of the complainant to advance the loan

to the accused is concerned, she has stated categorically in her

cross-examination that, after retirement of her husband, she has

received the money. The said money was kept in the house.

When there was a demand by the accused to advance loan to

her to meet her legal necessities, she took Rs.1,00,000/- from

the said amount and advanced loan to the accused. It is further

stated that except this transaction, no other transaction has

taken place. There is no further denial of this aspect in the cross-

examination by the accused. That means, throughout the cross-

examination, the transaction between the complainant and

accused have been admitted. Suggestions so directed to P.W.1

are flatly denied by her. When suggestions are denied, they have

no evidentiary value. It is further suggested to P.W.1 that,

during the year 2002, accused took a loan of Rs.30,000/- from

the complainant and her husband. But the suggestion is denied.

It is further suggested that for the due amount, a promissory

note was executed. At that time two blank cheques were signed

and were taken by the complainant. But this suggestion is

denied.

23. On a scrupulous reading of the cross-examination, a

suggestion with regard to the taking two blank cheques being

signed by the accused is being admitted by this accused. So,

when there is issuance of blank cheque, the burden lies on the

accused to disprove the case of the complainant. That means

initially the burden is on the complainant. Once the burden is

discharged by the complainant, then the onus lies on the

accused to disprove the case of the complainant.

24. Now, let me come to the evidence of D.W.1. It is her

specific defence that, name of complainant is not Nagamma but

Jayamma. To that effect, she has produced various documents

from Exs.D1 to D10. She states that she has not received any

amount from the complainant as a loan and the complainant has

no financial capacity. The cross-examination directed D.W.1 is

worth reading. She admits that she knew complainant right from

the year 1995 onwards. Even she does not know what was the

profession of the husband of the complainant. She says that she

is working in B.C.M. hostel as a Cook since 1998. She admits

that the account with regard to cheque Ex.P1 is standing in her

name. The said cheque Ex.P1 bears her signature. She

volunteers that she has signed the blank cheque and gave it to

this complainant. She also admits that after 29.01.2008, the

complainant demanded the accused to pay the money. She

admits that on 08.02.2008 complainant issued a legal notice to

her through her counsel but she has not replied to the said

notice. She also admits that there was no necessity for her to

issue reply to the said notice.

25. It is the defence of the accused that there was an

agreement between the complainant and accused on 19.12.2007

as per Ex.D10. In that agreement, complainant remembers the

old transaction etc. But in the cross-examination she admits that

Ex.D1 bears the signature of the complainant. She denies the

suggestion that this cheque was written by her.

26. To prove the contents of Ex.D10, she has examined DW2

Shivappa who is the scribe of the said document. But the cross-

examination reflects that he was not well conversant with the

transaction between the complainant and the accused and he is

not a licensed scribe.

27. Thus, on scrupulous reading of the entire evidence led by

the parties, so also the Judgments of the Trial Court as well as

the First Appellate Court, it is evident that, the Revision

Petitioner - accused has duly issued the cheque in question for

Rs.1,00,000/- in favour of the complainant, in discharge of a

debt or liability, the cheque was presented to the banker for

payment. However the cheque returned unpaid for want of

sufficient funds in the account of the revision petitioner -

accused. Statutory notice of dishonour was duly issued to her.

There was no response from the revision petitioner - accused.

28. With regard to the defence so taken by the accused that

Ex.D10 is a document which is being signed by the complainant

therefore it is duly put up in accordance with law. The Trial Court

records would show that, Ex.D10 was referred for an expert

opinion. The expert has given the opinion that, specimen

signature of the complainant did not tally with the disputed

signature of Ex.D10. There is no further challenge of this finding

of the hand-writing expert by the revision petitioner - accused

before any forum. That means the said finding of the expert

opinion has reached finality. That means Ex.D10 so relied on by

the accused is not a valid document as per the argument of the

learned counsel for the complainant. Thus, the Trial Court and

First Appellate Court arrived at the specific concurrent factual

finding that Ex.D10 admittedly was not signed by the

Complainant.

29. The learned Trial Court and the First Appellate Court

rejected the plea of the accused that the complainant had

misused the blank signed cheque made over by the accused to

the complainant. In view of the admissions of the accused in the

cross-examination, it can be said that, the Trial Court and First

Appellate Court are right in making such a factual finding based

on the evidence placed on record.

30. The provisions of Section 139 of the N.I. Act mandates

that unless the contrary is proved, it is to be presumed that the

holder of the cheque received the cheque of the nature referred

to in Section 138 of the N.I. Act in discharge of any whole or any

part of any debt or other liability.

31. Needless to mention that the presumption contemplated

under Section 139 of the N.I. Act is rebuttable presumption.

However, the onus of proving that the cheque was not in

discharge of any debt or other liability is on the accused, drawer

of the cheque.

32. In a Judgment reported in Hiten P Dalal Vs.

Batindranath Banerjee, reported in (2001) 6 SCC 16, the

Hon'ble Supreme Court of India has held that, both Section 138

and 139 require that the Court shall presume the liability of the

drawer of the cheques for the amounts for which the cheques

are drawn. In the said Judgment, a Judgment in State of

Madras Vs. Vaidyanath Iyer reported in AIR 1958 SC 61

has been followed, wherein it was held that, it was obligatory on

the court to raise this presumption.

33. Section 139 introduces an exception to the general rule as

to the burden of proof and shifts the onus on the accused. The

presumption under Section 139 of the N.I. Act is a presumption

of law as distinguished from presumption of facts. Presumptions

are rules of evidence and do not conflict with the presumption of

innocence, which requires the prosecution to prove the case

against the accused beyond reasonable doubt. The obligation on

the prosecution may be discharged with the help of

presumptions of law and presumptions of fact unless the accused

adduces evidence showing the reasonable possibility of the non

existence of the presumed fact.

34. It is said that presumption of innocence is undoubtedly a

human right as contended on behalf of the Revision Petitioner -

accused. However the guilt may be established by recourse to

presumptions in law and presumptions of facts as observed by

the Hon'ble Supreme Court of India in various Judgments.

35. The Hon'ble Supreme Court of India in Lakshmi Dyechem

Vs. State of Gujarat and others reported in (2012) 13 SCC

375 reiterated that, in view of Section 139, it has to be

presumed that a cheque was issued in discharge of a debt or

other liability but the presumption could be rebutted by adducing

evidence. The burden of proof was however on the person who

wanted to rebut the presumption.

36. If these principles laid down by the Hon'ble Supreme Court

of India are applied to the present facts of the case, in view of

the provisions of Section 139 of the N.I. Act read with Section

118 thereof, the Court had to presume that the cheque had been

issued discharging a debt or liability. The said presumption was

rebuttable and could be rebutted by the accused by proving

contrary. In this case, there is just a denial. But mere denial or

rebuttal by the accused is not enough. The accused has to prove

by cogent evidence that there was no debt or liability.

37. As observed above, the Trial Court, on analysis of the

evidence adduced by the respective parties arrived at the factual

finding that the petitioner - accused had duly issued the cheque

Ex.P1 for Rs.1,00,000/- in favour of respondent - complainant, in

discharge of a debt or a liability, the cheque was presented to

the bank for payment within the period of its validity, but the

cheque had been returned unpaid for want of sufficient funds in

the account of the petitioner - accused in the bank on which the

cheque was drawn. Statutory notice of dishonour was duly

issued to which there was no response from the petitioner -

accused.

38. The Appellate Court affirmed the aforesaid factual findings.

The learned Trial Court and the Appellate Court arrived at the

specific concurrent and factual finding that the cheque had

admittedly been signed by the Revision Petitioner - accused.

The learned Trial Court and the Appellate Court rejected the

plea of the petitioner - accused that the complainant -

respondent had misused the blank signed cheque made over by

the petitioner - accused to her.

39. It is settled that, even a blank cheque leaf, validly signed

and handed over by the accused, which is towards some

payment, would attract presumption under Section 139 of the

N.I. Act, in the absence of any cogent evidence to show that, the

cheque was not issued in discharge of a debt. Thus, in the

absence of any finding that the cheque in question was not

signed by the petitioner - accused or not voluntarily made over

to the payee and in the absence of any evidence with regard to

the circumstances in which a blank signed cheque had been

given to the complainant, it may reasonably be presumed that

the cheque was filled in by the complainant being the payee. In

my considered opinion, the Trial Court and the Appellate Court

have rightly appreciated the evidence placed on record by both

the parties.

40. There is no acceptable grounds to interfere with the

concurrent findings of both the Courts. More so, the powers the

Revisional Court are well settled. Now the question that comes is

whether the Revisional Court has got the jurisdiction to interfere

with the finding of the Trial Court and First Appellate Court. It is

well settled that in exercise of revision jurisdiction under Section

397 Cr.P.C., the High Court, does not in the absence of

perversity, interfere in the concurrent factual findings. It is not

for the Revisional Court to analyse and re-appreciate the

evidence on record.

41. It is held by the Hon'ble Supreme Court of India in a

Judgment reported in (2008) 14 SCC 457 in Southern Sales

and Services and others Vs. Sauermilch Design and

Handles GmbH, it is well established principle of law that, the

Revisional Court will not interfere even if a wrong order is passed

by a Court having jurisdiction, in the absence of a jurisdictional

error.

42. It is well settled that in exercise of revisional jurisdiction

under Section 397 of code of Criminal procedure, the High Court

does not, in the absence of perversity, upset concurrent factual

findings. It is not for the Revisional Court to re-analyse and re-

interpret the evidence on record. That means, interference by

the High Court in exercise of revisional jurisdiction is limited to

the exceptional cases. viz.(i) When it is found that order under

revision suffers from glaring illegality or has caused miscarriage

of justice, (2) When it is found that Trial Court has no

jurisdiction to try the case. (3) When Trial Court has illegally

shut out the evidence which otherwise ought to have been

considered and (4) Where material evidence which clinches the

issue has been overlooked.

43. It is held by the Hon'ble Supreme Court in State of

Gujarat Vs Afroz Mohammad Hasanfatta, reported in 2019

CRL. L.J. 3366, 338(SC) that "while hearing revision under

section 397 of Cr.P.C., the High court does not sit as an

Appellate Court and will not re-appreciate the evidence unless

the judgment of the trial court suffers from perversity".

44. Therefore the conviction of the petitioner - accused for the

offence punishable under Section 138 of the N.I. Act is to be

confirmed.

45. At the time of admission 25% was deposited. The balance

amount shall be deposited in the Trial Court within four weeks

from today, failing which, the default sentence follows as

imposed by the Trial Court.

46. Resultantly, I pass the following:

ORDER

Criminal Revision Petition so filed is dismissed. Judgment

of conviction and sentence dated 05.03.2013 passed by Principal

Civil Judge & JMFC, Kadur in C.C No.401/2008 affirmed by II

Addl. Dist.& Session Judge Chikkamagalur in Crl. A.

No.152/2013, by Judgment dated 13.11.2013 are hereby

confirmed.

Revision Petitioner is directed to deposit the fine amount

before the Trial Court within four weeks from today. On such

deposit, Trial Court is directed to release the compensation

amount so awarded to the complainant.

Send back the Trial Court and Sessions Court records,

forthwith.

sd/-

JUDGE sac*