Sri Raju H B vs Sri B Shivarajaiah
2023 Latest Caselaw 1411 Kant

                                        -1-
                                                   CRL.RP No. 359 of 2019




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 20TH DAY OF FEBRUARY, 2023

                                       BEFORE
                      THE HON'BLE MR JUSTICE R. NATARAJ
                CRIMINAL REVISION PETITION NO. 359 OF 2019
            BETWEEN:

            SRI. RAJU H.B.
            S/O. GATAPPA,
            AGED ABOUT 30 YEARS,
            R/AT C/O. JANI BASAPPA,
            AKKUR VILLAGE AND POST,
            KOOTAGAL HOBLI,
            RAMANAGARAM TALUK,
            RAMANAGARA DISTRICT- 571 511

                                                             ...PETITIONER
            (BY SRI. LAKSHMIKANTH K., ADVOCATE )

            AND:

            SRI. B. SHIVARAJAIAH
            S/O. BYALAIAH,
            AGED ABOUT 33 YEARS,
Digitally   R/AT. NO. 42, 5TH CROSS,
signed by
SUMA        SRINIVAS NAGAR,
Location:   BANGALORE-560072.
HIGH
COURT OF                                                    ...RESPONDENT
KARNATAKA
            (BY SRI. NAGARAJ DAMODAR, ADVOCATE (THROUGH VC))

                   THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
            SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
            PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
            19.07.2016 PASSED IN C.C.NO.6658/2011 BY THE LEARNED XVI
            A.C.M.M., BANGALORE AND CONFIRMED IN CRL.A.NO.932/2016
            DATED 11.02.2019 BY THE LEARNED LXIV ADDITIONAL CITY CIVIL
            AND SESSIONS JUDGE, BANGALORE (CCH-65).
                                     -2-
                                                 CRL.RP No. 359 of 2019




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

                                 ORDER

The petitioner has challenged the judgment of conviction

dated 19.07.2016 passed by the XVI Additional Chief

Metropolitan Magistrate, Bengaluru City (henceforth referred to

as 'Trial Court' for short) in C.C.No.6658/2011 for the offence

punishable under Section 138 of the Negotiable Instruments

Act, 1881 and consequent sentence to pay fine of

Rs.2,25,000/-. The petitioner has also called in question the

judgment dated 11.02.2019 passed by the LXIV Addl. City Civil

and Sessions Judge, Bengaluru (CCH - 65) (henceforth referred

to as 'Appellate Court' for short), in Crl.A.No.932/2016 by

which, the judgment of conviction passed by the Trial Court

was upheld.

2. The parties shall henceforth be referred to as they

were arraigned before the Trial Court. The petitioner was the

accused and the respondent was the complainant.

3. The records disclose that the accused and the

complainant were friends and belonged to the same village. The

CRL.RP No. 359 of 2019

accused is stated to have sought financial assistance from the

complainant to meet his family necessities. The complainant

paid a sum of Rs.1,85,000/- to the accused, who promised to

repay the same within six months. However, even after six

months, the accused failed to pay the money and after

pursuing him, he finally handed over the cheque bearing

No.580657 dated 05.08.2010 for a sum of Rs.1,85,000/- drawn

on the State Bank of India, Bengaluru. The said cheque was

dishonoured due to insufficient funds. The complainant caused

a notice of demand, which returned unserved, while notice sent

through certificate of posting was served upon the accused.

However, the accused neither replied to the notice nor paid the

amount payable under the cheque in question. Hence, the

complainant launched prosecution against the accused for the

offence punishable under Section 138 of the Negotiable

Instruments Act.

4. The sworn statement of the complainant was

recorded and C.C.No.6658/2011 was registered and process

was issued to the accused, who appeared and was released on

bail. The substance of the accusation was read over to the

accused who pleaded not guilty and claimed to be tried. The

CRL.RP No. 359 of 2019

complainant was examined as PW.1 and he marked Exs.P1 to

P7. The statement of the accused under Section 313 of Cr.P.C.

was recorded, who denied the incriminating evidence against

him and examined himself as DW.1 and two other witnesses

were examined as DW.2 and DW.3 and marked Exs.D1 to D6.

5. Based on the oral and documentary evidence, the

Trial Court held that the complainant had proved that the

accused had committed an offence punishable under Section

138 of the Negotiable Instruments Act and consequently

convicted him for the said offence and sentenced him to pay

fine of Rs.2,25,000/-.

6. Being aggrieved by the said judgment of conviction

passed by the Trial Court, the accused filed Crl.A.No.932/2016

before the Appellate Court. The Appellate Court secured the

records of the Trial Court, heard the counsel for the accused as

well as the complainant and after framing points for

consideration, re-appreciated the evidence and dismissed the

appeal.

CRL.RP No. 359 of 2019

7. Being aggrieved by the judgments of both the

Courts, the present revision petition is filed.

8. The learned counsel for the petitioner/accused

contended that there was no lawful debt payable by the

accused to the complainant on the date of drawing up of the

cheque and therefore, the Trial Court and the Appellate Court

committed an error in convicting the accused based on the

presumption under Section 139 of the Negotiable Instruments

Act. He also contended that the Trial Court as well as the

Appellate Court did not apply their mind to the evidence on

record. Further he claimed that the Trial Court and Appellate

Court turned blind eye to the requirements of Section 138 of

the Negotiable Instruments Act and that both the Courts failed

to apply mandatory provisions of law while deciding the case.

It is also contended that the complainant did not have financial

capacity to pay a sum of Rs.1,85,000/-.

9. Learned counsel for the respondent/complainant

submits that though it was claimed by the accused before the

Trial Court that the cheque in question was given by him to a

person named, Hanumaiah, who is the cousin brother of the

CRL.RP No. 359 of 2019

complainant, no evidence in that regard was produced. He also

contended that the documents produced by the accused as

Exs.D1 to D5 did not have any bearing on the facts of this case

and therefore, the Trial Court and the Appellate Court were

justified in convicting the accused for the offence punishable

under Section 138 of the Negotiable Instruments Act.

10. I have considered the submissions made by the

learned counsel for the petitioner/accused as well as the

learned counsel for the respondent/complainant. I have also

perused the records of the Trial Court, its judgment as well as

the judgment of the Appellate Court.

11. The fact that the accused and the complainant

belong to the same village and were known to each other is not

seriously disputed. The Trial Court has considered the defence

of the accused that the cheque in question was given to a

person named, Hanumaiah, who is the cousin brother of the

complainant and held that though the complainant had

launched the prosecution of the accused in the year 2011, a

belated complaint was filed in the year 2014 accusing the

complainant and Hanumaiah of launching a false prosecution

CRL.RP No. 359 of 2019

based on a cheque that was drawn in favour of Hanumaiah,

who had then organized a chit fund. Except this self-serving

statement, the accused did not adduce any evidence to

establish that the cheque in question was not drawn towards

discharge of any lawful debt. The evidence of DW.2 and DW.3

are also inconsequential, as these persons claim that the cousin

brother of the complainant was running a chit and that they

were handing over blank cheques to the cousin brother of the

complainant to be retained as security. These witnesses

admitted that after conclusion of the chit, the cheques given by

them were returned to them. However, in so far as the present

case is concerned, there is no material to establish that the

instant cheque was one of the cheques given to the cousin

brother of the complainant, which was not returned.

12. In that view of the matter, the Trial Court and the

Appellate Court have rightly assessed the evidence on record

and have rightly come to the conclusion that the cheque in

question was issued towards discharge of a lawful debt. There

is no error apparent on the face of the record warranting

interference of this Court in a revision petition under Section

397 of Cr.P.C.

CRL.RP No. 359 of 2019

Hence, this revision petition lacks merit and is

dismissed.

The Registry is directed to forthwith return the Trial Court

as well as the Appellate Court records.

Sd/-

JUDGE

PMR