Murali vs B V Ravikumar
2023 Latest Caselaw 1417 Kant

                                                -1-
                                                          CRL.RP No. 67 of 2014




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                          DATED THIS THE 20TH DAY OF FEBRUARY, 2023
                                             BEFORE
                        THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                                     CRL.R.P. NO. 67 OF 2014
                 BETWEEN:
                 MURALI
                 S/O MELEGOWDA
                 AGED ABOUT 32 YEARS
                 RESIDING AT EMPLOYEE
                 OF BSNL BINDIGANAVILE
                 BRANCH, BINDIGANAVILE
                 HOBLI, NAGAMANGALA TALUK
                 MANDYA DISTRICT.
                                                                    ...PETITIONER
                 (BY MR. H. MALATESH, AMICUS CURIEA)
Digitally
signed by B A
KRISHNA          AND:
KUMAR
Location: High
Court of
                 B.V. RAVIKUMAR
Karnataka        S/O VENKATESH K
                 AGED ABOUT 29 YEARS
                 R/A BADRI KOPPAL VILLAGE
                 KASABA HOBLI, NAGAMANGALA
                 TALUK, MANDYA DISTRICT.
                                                                   ...RESPONDENT
                 (BY SRI V.N. MADHAVAREDDY., ADV.)


                        THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C PRAYING TO
                 SET ASIDE THE ORDER DATED:6.07.12 PASSED BY THE SENIOR
                 CIVIL JUDGE AND JMFC, NAGAMANGALA IN C.C.NO.624/10          AND
                 ALSO JUDGMENT DATED:16.11.13 PASSED BY THE II ADDL. DIST.
                 AND S.J., MANDYA IN CRL.A.NO.74/12.


                        THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
                 COURT MADE THE FOLLOWING:
                                -2-
                                          CRL.RP No. 67 of 2014




                            ORDER

This Criminal Revision Petition under Section 397 of Code

of Criminal Procedure, 1973 (for short 'Cr.P.C') has been filed

by the petitioner challenging the judgment and order dated

06.07.2012 passed by the Senior Civil Judge and JMFC,

Nagamangala (for short the 'Trial Court') in C.C.No.624/2010

and the judgment and order dated 16.11.2013 passed by the II

Additional District & Sessions Judge, Mandya (for short the

'Appellate Court') in Crl.A.No.74/2012.

2. Learned counsel for the petitioner was throughout

absent on various dates and therefore this Court had appointed

Sri H Malatesh as Amicus Curiae by order dated 14.02.2023.

3. Heard the Amicus Curiae on behalf of the petitioner

and learned counsel appearing for the respondent.

4. Brief facts of the case as revealed from the records

that my be necessary for the purpose of disposal of this petition

are that, the petitioner borrowed a sum of Rs.2,50,000/- from

the respondent-complainant on 01.09.2008 and towards

repayment of the same had issued a cheque dated 03.10.2008

drawn on Canara Bank, Nagamangala Branch in favour of the

CRL.RP No. 67 of 2014

complainant for a sum of Rs.2,50,000/-. On presentation of

said cheque for realization the same was dishonoured on the

ground "Funds insufficient". On receipt of such a bank memo,

the complainant had got issued a legal notice to the accused.

The said notice dated 21.10.2008 was served on the petitioner

on 31.10.2008. In spite of such notice, the petitioner did not

pay the amount nor did he reply to the said notice. It is under

this circumstance, the respondent - complainant had filed a

private complaint under Section 200 of Cr.P.C., against the

petitioner for the offences punishable under Section 138 of

Negotiable Instruments Act, 1881 (for short 'N.I. Act') and in

the said proceedings, after service of summons, the petitioner

had entered appearance and claimed to be tried.

5. In order to substantiate his case, the respondent -

Accused had got himself examined as PW.1 and also got

marked 8 documents as Exs.P1 to P.8. On behalf of the

petitioner - complainant, he got himself examined as DW.1 and

got marked 1 document as Ex.D1. The Trial Court after hearing

both sides by its judgment and order dated 06.07.2012

convicted the petitioner herein for the offence punishable under

Section 138 of N.I. Act and sentenced him to undergo simple

CRL.RP No. 67 of 2014

imprisonment for a period of six months and also to pay fine of

Rs.2,75,000/- and in default to pay fine, the petitioner was

directed to undergo simple Imprisonment for further period of

three months. Being aggrieved by the said judgment and order

of conviction and sentence, the petitioner had filed

Crl.A.No.74/2012 before the II Addl. District & Sessions Judge,

Mandya and the said appeal was dismissed on 16.11.2013. It is

under these circumstances, the petitioner is before this Court in

this criminal revision petition.

6. Learned counsel for the petitioner submits that the

Courts below were not justified in convicting the petitioner for

the alleged offence. He submits that the petitioner has proved

before the Trial Court by producing Ex.D1 that amount

borrowed from the complainant was repaid. He submits that

the cheque in question which was issued to one Smt. Lakshmi,

advocate was handed over to the respondent as security for the

loan borrowed by her and the said cheque was misused by the

respondent. He accordingly, prays to allow the petition.

7. Per contra, learned counsel for the respondent

argued in support of the impugned judgment and order passed

by the Courts below and he submits that the petitioner has

CRL.RP No. 67 of 2014

failed to rebut the presumption arising him. He submits that

the signature found in the cheque and handwriting found in the

cheque have not been disputed by the petitioner and he also

submits that Ex.D1 does not have signature of the complainant

and accordingly, he prays to dismiss the petition.

8. I have carefully considered the arguments

addressed on both the sides and also perused the material

available on record.

9. The respondent who has been examined as PW1

has reiterated before the Trial Court the averments made

against the petitioner in his complaint and also has produced

cheque in question as Ex.P1 and legal notice issued by him to

the petitioner as Ex.P5. The petitioner has not seriously

disputed the cheque in question. On the other hand, he has

admitted the signature found in the cheque in question. The

only defence is that the said cheque was issued by him to Smt.

Lakshmi, Advocate, who in turn had handed over the said

cheque to the respondent as security for the loan borrowed by

her for the purpose of her marriage. The said defence has not

been proved by the petitioner. He has not examined the

aforesaid Lakshmi before the Trial Court. It is his further case

CRL.RP No. 67 of 2014

that during pendency of the trial, the entire payment that was

due by Smt. Lakshmi to the respondent was paid under Ex.D1

and in spite of the same, the cheque in question was misused

by the respondent. A perusal of Ex.D1 would go to show that in

the said document signature of the respondent is in Kannada.

Whereas the respondent has throughout signed before the Trial

Court on all documents including the complaint as well as the

deposition in English and the handwriting found in Ex.D1 also

prima-facie does not appears to be of the respondent.

10. The respondent had got issued a legal notice to the

petitioner prior to filing of the complaint. The complainant has

not given any reply to the same. Having regard to silence

maintained by the petitioner an adverse inference is required to

be drawn against him. The defence set up by the petitioner is

not established by him. On the other hand, the document at

ExD1 which is produced in support of his defence prima-face

appears to be concocted document. The Trial Court as well as

the Appellate Court having appreciated the material on record

have rightly convicted the petitioner for the alleged offence and

the petitioner has not made out any case before this Court so

as to interfere with the concurrent findings recorded by the

CRL.RP No. 67 of 2014

Courts below holding the petitioner guilty of the offence

punishable under Section 138 of N.I. Act. The petitioner has not

been able to establish before this Court that the impugned

judgment and order is either perverse or illegal and therefore,

interference by this Court in exercise of its revisional

jurisdiction is not called for. Accordingly, I pass the following:-

::ORDER::

Criminal Revision Petition is dismissed.

The service of Sri H. Malatesh. who was appointed as

Amicus Curiae is appreciated and placed on record and the fee

of Amicus Curiae is fixed as Rs.7,500/- (Rupees Seven

Thousand Five Hundred only).

SD/-

JUDGE

NMS