Karnataka High Court
Umesh R.S vs Bharathi on 27 February, 2023
Bench: S Vishwajith Shetty
-1-
CRL.RP No. 543 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRL.R.P. NO. 543 OF 2015
BETWEEN:
UMESH R.S
S/O SHIVAGANGAPPA
AGED ABOUT 43 YEARS
R/AT RAYASANDRA VILLAGE
DANDINASHIVARA HOBLI
TURUVEKERE TALUK
TUMKUR DISTRICT - 572 221.
...PETITIONER
(BY SRI MANJE GOWDA B.V, ADV., FOR
SRI CHANDRASHEKARA K.A, ADV.)
Digitally AND:
signed by B A
KRISHNA BHARATHI
KUMAR W/O BASAPPA
Location:
High Court of AGED ABOUT 45 YEARS
Karnataka R/AT SARASWATHIPURAM
TURUVEKERE TOWN
TURUVEKERE TALUK
TUMKUR DISTRICT - 572 221.
...RESPONDENT
(BY SRI N. MANJUNATH, ADV.)
THIS CRL.R.P. IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED
5.9.2014 PASSED BY THE CIVIL JUDGE & JMFC, TURUVEKERE, IN
C.C.NO.133/2012 AND MODIFIED BY THE V ADDL. DIST. &
SESSIONS JUDGE, TIPTUR BY THE JUDGMENT AND ORDER DATED
30.1.2015, VIDE CRL.ANO.10032/2014 FOR THE OFFENCE P/U/S 138
OF N.I. ACT AND TO ACQUIT THE PETR./ACCUSED.I.A.NO.1/2015
FOR C.D. IN FILING.I.A.NO.1/2015 FILED BY THE ADV. FOR THE
PETR. PRAYING TO CONDONE THE DELAY OF 17 DAYS IN FILING THE
ABOVE PETN. FOR THE REASONS STATED THEREIN.I.A.NO.2/2015
FOR SUSPENSION OF SENTENCE ON BAIL.I.A.NO.2/2015 FILED BY
THE ADV. FOR THE PETR. PRAYING TO SUSPEND THE ORDER OF
SENTENCE DATED 5.9.2014 PASSED BY THE LEARNED CIVIL JUDGE
& JMFC, TURUVEKERE, IN C.C.NO.133/2012 AND MODIFIED BY THE
V ADDL. DIST. & SESSIONS JDUGE, TIPUTUR BY THE JUDGMENT
-2-
CRL.RP No. 543 of 2015
AND ORDER DATED 30.1.2015 VIDE CRL.A.NO.10032/2014 FOR THE
OFFENCE P/U/S 138 N.I. ACT AND TO ACQUIT THE PETR./ACCUSED
AND ETC.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition under Section 397 read
with 401 of Cr.PC is filed challenging the judgment and order
dated 05.09.2014 passed by the Court of Civil Judge & JMFC,
Turuvekere, in C.C.No.133/2012 and the judgment and order
dated 30.01.2015 passed by the Court of V Addl. District &
Sessions Judge, Tiptur, in Crl.A.No.10032/2014.
2. Heard the learned Counsel for the petitioner and also
perused the material available on record.
3. Facts leading to filing of this revision petition as
revealed from the records are, the respondent-complainant had
filed a private complaint against the petitioner for the offence
punishable under Section 138 of the Negotiable Instruments
Act, 1881 (for short, 'the Act') before the Trial Court alleging
that the petitioner had borrowed a sum of Rs.50,000/- from her
and towards repayment of the said amount, he had issued a
cheque bearing No.003638 dated 29.08.2011 drawn on Tumkur
District Co-operative Central Bank Ltd., Tumkur, Turuvekere
CRL.RP No. 543 of 2015
Branch, in her favour, and on presentation of the said cheque,
the same was dishonoured with banker's endorsement 'funds
insufficient'. Thereafter, the complainant got issued a statutory
notice to the petitioner on 07.09.2011 through RPAD and speed
post and the notice sent through speed post was served on the
petitioner. However, the petitioner neither replied to the said
notice, nor complied with the demand made therein. It is under
these circumstances, the complainant had lodged the complaint
against the petitioner for the offence punishable under Section
138 of the Act.
4. In the said proceedings, the petitioner had appeared
before the Trial Court and pleaded not guilty. In order to
substantiate her case, the complainant had examined herself as
PW-1 and got marked 10 documents as Exs.P-1 to P-10. The
petitioner had denied all the incriminating circumstances
appearing against him in the evidence. However, he did not
lead any defence evidence nor did produce any document in
support of his case. The Trial Court thereafter heard the
arguments on both sides and by judgment and order dated
05.09.2014 convicted the petitioner for the offence under
Section 138 of the Act and sentenced him to undergo simple
CRL.RP No. 543 of 2015
imprisonment for a period of six months with fine of Rs.5,000/-
and in default of payment of fine, to undergo simple
imprisonment for a period of one month. The petitioner was
further directed to pay compensation of Rs.50,000/- to the
respondent under Section 357(3) of Cr.PC. The appeal filed by
the petitioner as against the said judgment and order of
conviction was partly allowed and the Appellate Court while
upholding the judgment and order of conviction modified the
sentence and directed the petitioner to pay fine of Rs.30,000/-
and also pay compensation of Rs.30,000/-. Being not satisfied
with the same, the petitioner has approached this Court in this
revision petition.
5. Learned Counsel for the petitioner submits that the
courts below have erred in convicting the petitioner under
Section 138 of the Act. He submits that the legal notice issued
to the petitioner was not served, and therefore, the complaint
was not at all maintainable. He also submits that the petitioner
has not borrowed any amount from the complainant and he
was not liable to pay any amount, and therefore, the courts
below have erred in convicting the petitioner.
CRL.RP No. 543 of 2015
6. The issuance of cheque, the writings found in the
cheque and the signature found in the cheque which is drawn
from the account maintained by the petitioner has not been
seriously disputed by the petitioner. Therefore, there is a
presumption under Section 139 of the Act that the said cheque
has been issued by the petitioner to the respondent towards
legally recoverable debt. Unless the petitioner rebuts the said
presumption by a probable defence, there shall be presumption
that the cheque issued is towards discharge of liability. Except
stating that he has not received any amount from the
respondent, the petitioner has not set up any particular
defence. Nothing has been elicited from the mouth of the
respondent during the course of her cross-examination to
disbelieve her version. Petitioner has not set up any probable
defence and mere denial of complainant's case will not be
sufficient to shift the burden which lies on the accused in view
of the presumption that arises against him under Section 139
of the Act. The petitioner has completely failed to discharge the
said presumption in the present case.
7. The argument addressed on behalf of the petitioner
that the legal notice was not served on the petitioner also is
CRL.RP No. 543 of 2015
liable to be rejected for the reason that the records would
reveal that the notice issued to the petitioner through speed
post was served on him. The complainant, in addition to her
oral evidence, has produced the cheque in question and also
the copy of the legal notice issued to the petitioner in
compliance of the statutory requirement and has made out a
prima facie case for the offence under Section 138 of the Act.
8. The Trial Court as well as the Appellate Court having
appreciated the oral and documentary evidence available on
record have recorded a concurrent finding of guilt against the
petitioner and have convicted him for the offence under Section
138 of the Act. No perversity or illegality is found in the said
concurrent findings recorded by the courts below, and
therefore, no interference is called for by this Court in exercise
of its revisional power. Under the circumstances, I see no merit
in this revision petition, and accordingly, the same is dismissed.
SD/-
JUDGE
KK
