Sri K Babu vs Sri Ravi
2023 Latest Caselaw 621 Kant

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                                                 CRL.RP No. 969 of 2018




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 10TH DAY OF JANUARY, 2023

                                      BEFORE
                      THE HON'BLE MR JUSTICE R. NATARAJ
                CRIMINAL REVISION PETITION NO. 969 OF 2018

            BETWEEN:

            SRI K BABU
            S/O LAL SAB
            PROP: B.L.CONSTRUCTION
            AGED 48 YEARS
            NAVA GRAMA ASHRAYA COLONY
            KALAVAR POST
            VIA-BAJPE MANGALURU
            PIN - 575 014
            R/O N.H. NO.13
            BASAVANA BAGEVADI
            BALASANGI TALUK
            BIJAPUR DISTRICT - 586 216.
                                                           ...PETITIONER
            (BY SRI. H MALATESH, ADVOCATE)

            AND:

            SRI RAVI
            S/O KALASHETTY
Digitally   AGED ABOUT 44 YEARS
signed by   CONTRACTOR
SUMA
Location:   R/O #3, "BASAVA NILAYA"
HIGH
COURT OF    5TH CROSS, SAVALANGA ROAD
KARNATAKA   SHIVAMOGGA CITY
            PIN - 577 201.
                                                          ...RESPONDENT
            (BY SRI. A. DERICK ANIL, ADVOCATE)

                 THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
            SET ASIDE THE JUDGMENT OF CONVICTION DATED 24.02.2018
            PASSED BY THE III ADDITIONAL CIVIL JUDGE AND JMFC,
            SHIVAMOGGA IN C.C.NO.3219/2011. B. SET ASIDE THE JUDGMENT
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                                                 CRL.RP No. 969 of 2018




DATED 04.07.20418 PASSED IN CRL.A.NO.24/2018 PASSED BY THE
III ADDITIONAL SESSIONS JUDGE, SHIVAMOGGA.

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

                                ORDER

The petitioner has challenged judgment of conviction

dated 24.02.2018 in CC.No.3219/2011 passed by the III

Additional Civil Judge and JMFC, Shivamogga and the

consequent sentence to pay fine of Rs.5,30,000/-, failing which,

he was ordered to undergo simple imprisonment for a period of

one year. The petitioner has also assailed the order passed by

the III Additional Sessions Judge, Shivamogga in

Crl.A.No.24/2018, by which, the judgment of conviction was

upheld.

2. The short facts as stated by the

respondent/complainant are that the petitioner had engaged

the services of a JCB equipment owned by the respondent for

the purpose of his construction work at Shivamogga. The JCB

was used from 26.10.2010 to 19.01.2011. After calculating the

work done, the petitioner had passed on two cheques dated

22.02.2011 and 20.05.2011 for Rs.2,00,000/- and

CRL.RP No. 969 of 2018

Rs.1,60,000/-, respectively. The said cheques when presented

for encashment, returned unpaid as the petitioner had not

maintained sufficient funds to honour the cheques.

Consequently, the respondent issued a notice of demand calling

upon the petitioner to pay up the amount covered under the

cheques. The petitioner did not reply to the notice and did not

comply with the demand. Consequently, the respondent

initiated proceedings to prosecute the petitioner for an offence

punishable under Section 138 of the Negotiable Instruments

Act, 1881 (hereinafter referred to as 'NI Act, 1881' for short).

The process was served on the petitioner and his plea was

recorded. The petitioner pleaded not guilty and prayed that he

be tried. The respondent was examined as PW.1 and he marked

Exs.P1 to P11. The statement of the petitioner was recorded

under Section 313 of Cr.P.C. and thereafter, the petitioner led

defence evidence as DW.1 but did not mark any document.

3. Based on the oral and documentary evidence, the

trial Court held that the cheques in question were drawn by the

petitioner herein towards discharge of a lawful debt to the

respondent. It also held that the cheques in question were

CRL.RP No. 969 of 2018

dishonoured due to insufficient funds, which constituted an

offence punishable under Section 138 of NI Act and thus,

convicted the petitioner for the offence and sentenced him pay

fine of a sum of Rs.5,35,000/- and in default, to undergo

simple imprisonment for a period of one year. Being aggrieved

by the said judgment, an appeal was preferred before the

Sessions Court in Crl.A.No.24/2018, which was also dismissed.

4. Being aggrieved by the same, the present revision

petition is filed.

5. Learned counsel for the petitioner submitted that

the cheques in question were not issued to the respondent but

were issued to a person named Azeez and therefore, the

cheques were not payable at the instance of the respondent. He

further contended that the cheques were drawn by B.L.

Construction, which was not arrayed as an accused in the

proceedings and therefore, the trial Court and the Appellate

Court failed to notice this fundamental fact, resulting in a

wrongful conviction.

CRL.RP No. 969 of 2018

6. Learned counsel for the respondent is absent and

therefore, this Court did not have the benefit of the arguments

of the learned counsel for the respondent.

7. The records of the trial Court more particularly the

evidence of the petitioner would disclose that the cheques in

question were indeed drawn by him, who was the proprietor of

B.L.Construction. The petitioner deposed that he was carrying

on construction activity in Machenahalli, Shivamogga, while his

registered office was situate at Mangaluru. He was also

confronted with a visiting card of B.L.Construction and he

admitted that he was the proprietor of the said

B.L.Construction. He claimed that he had handed over the

cheques in question to Azeez and Mansoor who were employed

by him. He claimed that Azeez and Mansoor were sub-

contractors who were executing the work, while he was the

main contractor. When a book containing certain entries were

confronted to the petitioner, he admitted that those entries

were made by Shafiulla, who was his employee and that such

entries were in respect of the cost of diesel incurred by the

petitioner. The trial Court has considered his evidence which

CRL.RP No. 969 of 2018

clearly pointed out to the fact that these cheques were handed

over by the petitioner towards discharge of a lawful debt to the

respondent. Since the cheques in question were dishonoured

due to insufficient funds and as the petitioner had admitted his

signature on the two cheques and there were enormous

evidence which indicated that these two cheques were handed

over towards payment of the cost of using the JCB equipment

belonging to the respondent, the trial Court and the Appellate

Court were justified in holding that these cheques were given

towards discharge of a lawful debt. Likewise, the trial Court and

the Appellate Court were justified in convicting the petitioner

for the offence punishable under Section 138 of the NI Act,

1881 and were also justified in sentencing the petitioner to pay

a fine of a sum of Rs.5,35,000/-. There is no error apparent on

the face of the record and there is no material irregularity

warranting interference by this Court in a revision petition

under Section 397 of Cr.P.C.

8. Hence, this revision petition lacks merit and is

dismissed.

CRL.RP No. 969 of 2018

Any amount in deposit is ordered to be released to the

respondent.

The Registry is directed to return the trial Court Records,

forthwith.

Sd/-

JUDGE NR/-