Sri. K. B. Ananda vs Sri. K. S. Nagaraju
2023 Latest Caselaw 1527 Kant

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                                                          CRL.RP No. 1436 of 2018




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 23RD DAY OF FEBRUARY, 2023

                                               BEFORE
                       THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                      CRIMINAL REVISION PETITION NO. 1436 OF 2018


                   Between:

                   Sri K.B.Ananda
                   S/o. Late Sri Basavaiah,
                   Aged about 59 years,
                   R/at No. 327, 3rd Main Road,
                   A and B Block, Ramakrishnanagara,
                   Mysuru-570006.
                                                                        ...Petitioner
                   (By Sri V.R.Balaraj, Advocate)

                   And:

                   Sri K.S.Nagaraju
                   S/o. Sri K.C.Somegowda,
Digitally signed   Aged about 48 years,
by SRIDEVI S       R/at No. 621, 7th Cross,
Location: HIGH     Anikethana Road, Kuvempunagara,
COURT OF           Mysuru-570006.
KARNATAKA                                                             ...Respondent
                   (By Sri Narendra D.V. Gowda, Advocate)

                         This Crl.RP. filed u/s.397 r/w 401 Cr.P.C., praying to set
                   aside the impugned judgment dated 08.06.2018 passed by the
                   Learned III-JMFC, Mysuru in C.C.No.948/2015 produced at
                   Annexure-A and the judgment dated 07.11.2018 passed by the
                   III Additional Sessions Judge, Mysuru in Crl.A.No.137/2018
                   produced at Annexure-B.

                         This petition coming on for dictating orders, this day, the
                   court made the following:
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                                   CRL.RP No. 1436 of 2018




                         ORDER

This criminal revision petition under section 397

Cr.P.C. is filed challenging the judgment and order of

conviction and sentence passed by the court of JMFC (III

Court), Mysuru in C.C.No.948/2015 dated 8.6.2018 and

the judgment and order dated 7.11.2018 passed by the

Court of III Addl. District and Sessions Judge, Mysuru in

Crl.A.No.137/2018.

2. Heard the learned counsel for the parties and also

perused the material available on record.

3. Brief facts of the case as revealed from records

that may be necessary for the purpose of disposal of this

revision petition are

The complainant had filed a private complaint under

section 200 Cr.P.C. before the Court of Judicial Magistrate

First Class, (III Court), Mysuru against the petitioner

herein for the offence punishable under section 138 of

N.I.Act contending that the petitioner had borrowed a sum

of Rs.5 lakhs and a sum of Rs.4 lakhs respectively from

CRL.RP No. 1436 of 2018

the complainant for the purpose of his family necessities

and he had agreed to repay the same with interest. The

petitioner had thereafter issued two cheques dated

2.12.2014 and 10.12.2014 respectively for a sum of

Rs.6,72,500/- and Rs.4,66,000/- in favour of the

respondent-complainant towards repayment of the loan

amount borrowed by him. The said cheques on

presentation for realization were dishonoured with the

banker's endorsement "Funds Insufficient". After receipt

of said bankers endorsement, the respondent -

complainant got issued a statutory notice to the petitioner

through RPAD, which was not claimed by the petitioner.

Thereafter the respondent had filed a private complaint

before the trial court.

4. In the said proceedings, the petitioner had

appeared before the trial court and claimed to be tried.

During the course of trial, the respondent examined

himself as PW.1 and got marked 14 documents as per

Ex.P.1 to P.14. The petitioner denied the incriminating

CRL.RP No. 1436 of 2018

circumstances available against him during the course of

his section 313 Cr.P.C. statement. However he did not

lead any defence evidence nor did he get any documents

marked in support of his defence.

5. The trial court heard the arguments on both sides

and by its judgment and order dated 8.6.2018 convicted

the petitioner for the offence under section 138 of N.I.Act

and sentenced him to pay fine of Rs.9,00,000/- and in

default to undergo simple imprisonment for a period of

one year. Being aggrieved by the said judgment and

order, the petitioner had filed Crl.Appeal.No.137/2018

before the Court of III Addl. District and Sessions Judge,

Mysuru and the said appeal was disposed of by judgment

and order dated 7.11.2018 wherein the Appellate Court

reduced the default sentence from simple imprisonment of

one year to simple imprisonment for six months and in all

other respects, the judgment and order passed by the trial

court was confirmed. It is in this factual background the

petitioner is before this court.

CRL.RP No. 1436 of 2018

6. Learned counsel for the petitioner submits that the

courts below are not justified in convicting the petitioner

for the offence punishable under section 138 of N.I.Act.

He submits that the cheques in question were issued

towards security and the petitioner was not liable to pay

any amount to the respondent which was illegally

recovarable from him. He submits that even if the

issuance of cheques is admitted, the fact remains that the

petitioner is not due to pay the respondent the amount

covered under the cheques and therefore the court were

not justified in convicting the petitioner. Learned counsel

for the respondent has argued in support of the impugned

judgment and order and prays to dismiss the petition.

7. The petitioner has not disputed the issuance of

cheques to the respondent. He has also not disputed the

writing and the signature on the cheques. Therefore in

view of section 139 of N.I.Act, presumption arises as

against the petitioner that the cheques in question are

issued by him towards discharge of legally recoverable

CRL.RP No. 1436 of 2018

debt. Unless the petitioner rebuts the said presumption,

he is liable to be convicted for the offence under section

138 of N.I.Act. The petitioner has taken multiple defence

before the trial court. However he has failed to prove any

one of his defence as probable. He has also denied that

he had borrowed money from the respondent. The

respondent by producing Ex.P.9 and P.11 had proved that

he has lent money to the petitioner as alleged by him in

the complaint. Further by producing Ex.P.9 to P.13, the

respondent has shown his capacity to lend the amount.

The respondent has produced the two cheques issued by

the petitioner in his favour and he has also produced the

copy of the legal notice issued by him in compliance of the

statutory requirements. The petitioner has also produced

his income tax returns and bank pass book in addition to

the aforesaid documents in support of his case.

8. The trial court and the appellate court having

appreciated the oral and documentary evidence available

on record have recorded a concurrent finding of guilt

CRL.RP No. 1436 of 2018

against the petitioner and unless only the petitioner is able

to demonstrate before this court that such a finding

recorded by the courts below are either perverse or illegal,

the same cannot be interfered with by this court in

exercise of its revisional powers. I do not find any

illegality or irregularity in the impugned judgment and

order passed by the courts below and therefore I find no

merit in this revision petition. Accordingly the same is

dismissed.

The amount in deposit, if any, is permitted to be

withdrawn by the respondent/complainant.

Sd/-

JUDGE

SD