Karnataka High Court
R Divakar vs H S Kamalakanth on 6 January, 2023
Bench: R. Nataraj
-1-
CRL.RP No. 1395 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL REVISION PETITION NO. 1395 OF 2018
BETWEEN:
R. DIVAKAR,
S/O LATE A G RAMAIAH,
AGED ABOUT 50 YEARS,
R/AT NO.18, 6TH CROSS,
J.S.NAGARA, SARASWATHIPURAM,
NANDINI LAYOUT,
BENGALURU - 560 085.
...PETITIONER
(BY SRI. RAJANNA., ADVOCATE)
AND:
H.S.KAMALAKANTH,
S/O LATE SIDDAPPA H T,
AGED ABOUT 48 YEARS,
R/AT NO.166, 10TH CROSS,
VISHVESWARAIAH ROAD,
BHEL EXTENSION LAYOUT,
Digitally RAJARAJESHWARI NAGARA,
signed by
SUMA BENGALURU - 560 098.
Location: ...RESPONDENT
HIGH
COURT OF (BY SRI.ANANTHAPADMANABHA G.N., ADVOCATE)
KARNATAKA
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
1.SET ASIDE THE JUDGMENT DATED 03.11.2018 PASSED IN
CRL.A.NO.785/2016, ON THE FIE OF THE LXIV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE (CCH-65) AT BANGALORE. 2.SET ASIDE
THE JUDGMENT DATED 10.06.2016, PASSED IN C.C.NO.21198/2015,
BY THE XXII ACMM, BANGALORE CITY BY ALLOWING THIS PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
-2-
CRL.RP No. 1395 of 2018
ORDER
The petitioner has challenged the concurrent judgment
convicting the petitioner for an offence punishable under
Section 138 of Negotiable Instruments Act, 1881 (hereinafter
referred to as 'NI Act, 1881' for short) as well as the
consequent sentence.
2. The facts as stated, in brief are that the petitioner
and respondent were known to each other as they were earlier
residents of Bhadravathi. The respondent claims to have paid a
sum of Rs.3,00,000/- to the petitioner as a hand loan during
the month of April-2015 in the presence of a common friend
named Sri.Prakash. Later, the petitioner handed over a cheque
dated 30.06.2015 for a sum of Rs.3,00,000/-. The said cheque
was dishonoured due to insufficient funds when it was
presented to bank. The respondent issued a notice that was
addressed to the business premises of the wife of the
petitioner. Though the petitioner was aware of the notice, he
did not accept the same and therefore, the respondent filed a
private complaint to take cognizance of an offence committed
by the petitioner under Section 138 of NI Act, 1881. The sworn
statement of the petitioner was recorded and
CRL.RP No. 1395 of 2018
CC.No.21198/2015 was registered. The trial Court took
cognizance and issued summons to the petitioner and
thereafter, recorded the plea of the petitioner. The petitioner
pleaded not guilty and prayed that he be tried. Consequent
thereto, the respondent was examined as PW.1 and he marked
Exs.P1 to P5. He also examined the common friend-Mr.Prakash
as PW.2. The statement of the petitioner was recorded under
Section 313 of Cr.P.C. The petitioner did not enter the witness
box but he confronted Exs.D1 to PW.1, which was marked
subject to proof.
3. The trial Court after considering the oral and
documentary evidence held that the petitioner had admitted
certain financial transactions between him and the respondent
and it also held that the signatures found on Ex.P1 belonged to
the petitioner and that the petitioner was able to establish his
defence that he had paid a sum of Rs.1,50,000/- to the
respondent and therefore, held that the respondent had proved
the transaction and that the cheque in question was issued
towards discharge of a lawful debt and thus, convicted the
petitioner for an offence punishable under Section 138 of NI
Act, 1881 and sentenced the petitioner to pay a fine of
CRL.RP No. 1395 of 2018
Rs.1,000/- and awarded compensation of Rs.1,50,000/- with
simple interest at the rate of 6% per annum from the date of
cheque, till realization. An appeal preferred there from by the
petitioner was dismissed.
4. Being aggrieved by the same, the present revision
petition is filed.
5. Learned counsel for the petitioner submitted that
the trial Court failed to consider that the respondent had failed
to comply with proviso(b) to Section 138 of NI Act, 1881,
inasmuch as the notice of demand was issued to a wrong
address. He also contended that the respondent had received a
sum of Rs.1,50,000/- and the cheque at Ex.P1 was admittedly
filled up by the respondent himself and therefore, there was no
liability on the part of the petitioner to pay the balance amount
of Rs.1,50,000/-. He also submitted that the petitioner placed
on record the identity card, driving license, bank pass book,
Aadhar Card and the election ID Card of his wife to indicate
that the name of his wife was not Smt.Uma as mentioned in
the notice but was Smt.Devamani.
CRL.RP No. 1395 of 2018
6. Learned counsel for the respondent on the other
hand submitted that the cheque did contain the signature of
the petitioner. He submitted that since the respondent had
admitted the receipt of a sum of Rs.1,50,000/-, while the
amount in question was a sum of Rs.3,00,000/-, the trial Court
was justified in directing the petitioner to pay a sum of
Rs.1,50,000/- as compensation. He therefore, submits that,
there is no error apparent on the fact of the record warranting
interference by this Court in a revision petition under Section
397 of Cr.P.C.
7. I have considered the submission made by the
learned counsel for the parties.
8. The evidence of PW.1 discloses that there was a
transaction between the petitioner as well as the respondent.
PW.2 supported the case of PW.1. The petitioner has claimed
that he had paid interest of Rs.96,000/- to the respondent and
that he and the respondent had entered had into a settlement,
in terms of which, the petitioner had agreed to repay the
principal amount in monthly installment of Rs.25,000/- each.
He also claimed that he had paid the installment from the
CRL.RP No. 1395 of 2018
month of June-2014, till December-2015. However, it was
suggested to PW.1 that "DgÉÆæAiÀÄÄ MAzÀĪÀgÉ PÀë gÀÆ ºÀtªÀ£ÀÄß PÉÆqÀ®Ä
vÀAiÀiÁjzÁÝgÉAzÀgÉ ¸ÀjAiÀÄ®è". The trial Court has therefore rightly held
that the petitioner is liable to pay a sum of Rs.1,50,000/- and
therefore, rightly convicted the petitioner for an offence under
Section 138 of NI Act, 1881. There is no error in the
appreciation of evidence or in the application of law to the facts
and circumstances of the case. However, the respondent is not
entitled to interest on Rs.1,50,000/- as ordered by the trial
Court.
9. This revision petition therefore lacks merit and the
same is dismissed, but subject to the observation made
above.
Sd/-
JUDGE
NR/-
