Karnataka High Court

H Mahabaleshwara Bhat vs Radheshyam K on 26 July, 2023

Bench: S Rachaiah

                              -1-
                                     CRL.RP No. 659 of 2020



    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
          DATED THIS THE 26TH DAY OF JULY, 2023
                          BEFORE
           THE HON'BLE MR. JUSTICE S RACHAIAH
       CRIMINAL REVISION PETITION NO. 659 OF 2020
BETWEEN:

H. MAHABALESHWARA BHAT
S/O THIRUMALESHWARA BHAT
AGED ABOUT 65 YEARS
R/O LAKSHMI NILAYA
P.O. NEHRU NAGAR
KABAKA VILLAGE, PUTTUR TALUK
D.K.,-574 201.
                                               ...PETITIONER
(BY SRI. SACHIN B S, ADVOCATE)
AND:

RADHESHYAM K
S/O. K. MADHAVA BHAT
AGED ABOUT 51 YEARS
R/O LAXMI KRIPA, AJAYANAGAR
P.O. PADNUR, PUTTUR TALUK
D.K.,-574 201.
                                              ...RESPONDENT
(BY SRI. K. RAVISHANKAR, ADVOCATE)


      THIS CRL.RP IS FILED UNDER SECTION 397 AND 401 OF
CR.P.C., PRAYING TO SET ASIDE IMPUGNED JUDGMENT DATED
13.10.2020 IN CRL.R.NO.5034/2019 ON THE FILE OF THE 5TH
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANGALORE
SITTING AT PUTTUR, D.K, THEREBY DISMISSING THE APPEAL FILED
BY THE PETITIONER AND CONFIRMING JUDGMENT OF CONVICTION
AND SENTENCE DATED 12.07.2019 IN C.C.NO.156/2015 AND ETC.,

       THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 15.06.2023, COMING ON FOR PRONOUNCEMENT
OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:
                                    -2-
                                         CRL.RP No. 659 of 2020



                               ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 12-07-2019 in C.C.No.156/2015 on the

file of the Court of the Principal Civil Judge and J.M.F.C., Puttur,

D.K. District and its confirmation judgment and order dated

13.10.2020 in Crl.A.No.5034/2019 on the file of the Court of

the V Additional District and Sessions Judge, D.K. Mangaluru,

sitting at Puttur, D.K., has filed this revision petition seeking to

set aside the concurrent findings recorded by the Courts below,

wherein the petitioner / accused was convicted for the offences

punishable under Section 138 of the Negotiable Instruments

Act, 1881 (for short 'N.I Act').

2. The petitioner is the accused before the Trial Court

and appellant before the Appellate Court.

Brief facts of the case are as under:

3. It is the case of the complainant that, the petitioner

/ accused had borrowed hand loan of Rs.2,00,000/- from the

respondent / complainant on 03.01.2014 for his necessities. It

was credited through S.B. A/c.No.19071, Corporation Bank,

CRL.RP No. 659 of 2020

Puttur, in the name of the petitioner. It is stated that, on

14.02.2015, again on request, the respondent paid a sum of

Rs.80,000/- by way of cash. It is stated that, the petitioner

had to pay a sum of Rs.2,80,000/- to the respondent. In lieu

of the same, a cheque was issued mentioning the date as

12.05.2015. When it was presented for encashment, the

respondent received a shara as "funds insufficient" and it was

intimated to the petitioner. In spite of intimation having been

given to the petitioner, when the petitioner did not repay the

amount, a complaint was lodged before the Magistrate. The

Magistrate took cognizance of the said offence.

4. To prove the case of the complainant, the

complainant examined himself as PW.1 and also got examined

PW.2 on his behalf and got marked Exhibits P1 to P7. On the

other hand, the petitioner / accused has not led any evidence.

The Trial Court after appreciating the oral and documentary

evidence on record, convicted the petitioner for the offence

stated supra. Being aggrieved by the same, the petitioner

preferred an appeal before the Appellate Court, the Appellate

Court confirmed the judgment of conviction rendered by the

Trial Court. Being aggrieved by the same, the petitioner has

CRL.RP No. 659 of 2020

preferred this revision petition seeking to set aside the

concurrent findings.

5. Heard Shri Sachin B.S., learned counsel for the

petitioner and Shri K Ravishankar, learned counsel for the

respondent.

6. It is the submission of the learned counsel for the

petitioner that, the Courts below failed to consider the

contradiction and omission and passed the impugned

judgments which are opposed to the facts and evidence on

record, hence the same is liable to be set aside.

7. It is further submitted that, there is inconsistency in

the evidence of PW.1 in respect of the amount as stated in the

Ex.P1 - cheque. As per the evidence, PW.1 admitted that,

Rs.2,00,000/- was paid through the account of the petitioner.

Even though it is stated that, Rs.80,000/- was paid by way of

cash, nothing was there to show that it was given by way of

cash. When PW.1 admitted that, Rs.2,00,000/- was paid to the

petitioner, filling the cheque for a sum of Rs.2,80,000/-

appears to be not legally enforceable debt or liability. The Trial

Court ignored the same and while appreciating the evidence,

both oral and documentary, convicted the petitioner which is

CRL.RP No. 659 of 2020

liable to be set aside. Making such submission, learned counsel

for the petitioner seeks to set aside the concurrent findings

recorded by both the Courts below.

///////

8. Per contra, learned counsel for the respondent

vehemently justified the concurrent findings of the Courts

below and submits that, the issuance of the cheque and the

signature are not disputed. The petitioner has not chosen to

lead evidence nor replied the statutory notice issued by the

respondent. Unless the petitioner rebutted the presumption, it

can be presumed that, cheque was issued for consideration.

9. It is further submitted that, the Courts below

concurrently held that, the petitioner found guilty of the offence

under Section 138 of N.I Act, after appreciating both oral and

documentary evidence on record, hence, interference with the

well reasoned order may not be appropriate and warranted.

Having submitted thus, learned counsel for the respondent

prays to dismiss the petition.

10. Having heard the rival contentions urged by the

learned counsels for the respective parties and also perused the

CRL.RP No. 659 of 2020

judgments of the Courts below, the points which arise for my

consideration are:

i) Whether the concurrent findings recorded by

both the Courts below in convicting the petitioner

for the offence under Section 138 of N.I. Act are

sustainable?

ii) Whether the petitioner has made out

grounds to interfere with the concurrent findings

recorded by both the Courts below for conviction?

11. This Court being a Revisional Court, having regard

to the scope and ambit envisaged to appreciate the facts and

law, it is necessary to have a cursory look upon the evidence

and also the law, to ascertain as to whether any illegality or

perversity or error committed by the Courts below in recording

the conviction.

12. On careful reading of the evidence of PW.1, it

appears that, he had paid Rs.2,00,000/- through cheque and it

was credited to the account of the petitioner. Further PW.1

says Rs.80,000/- was paid by way of cash. For the repayment,

the petitioner had issued a cheque which is in dispute. In the

CRL.RP No. 659 of 2020

cross-examination, PW.1 admitted that, he paid Rs.2,00,000/-

to the petitioner, for the said amount, there was no interest. It

is further admitted that, at the time of lending the amount, he

had not received anything for the security. Nowhere in the

cross-examination, it was suggested that, amount of

Rs.80,000/- was lent to the petitioner. However, in the

affidavit as well as in the examination-in-chief it was stated.

13. A legal notice was issued by the respondent dated

16.06.2015 stated to have served to the petitioner, however,

the petitioner had not replied the same. The petitioner has not

chosen to lead his evidence to rebut the presumption. It is

settled principle that, the petitioner need not enter into witness

box to rebut the presumption. However, if any contradictions

are brought to the notice of the Court in the evidence of the

respondent, the Court can act upon such contradictions, if it

appears that, those contradictions are material contradictions.

In the present case, PW.1 has clearly admitted that, he paid

Rs.2,00,000/- to the petitioner through the cheque, when the

said loan was pending, the respondent stated to have paid

Rs.80,000/- once again as a loan appears to be not acceptable.

CRL.RP No. 659 of 2020

14. It is the defence of the petitioner that, he had

borrowed Rs.2,00,000/- from the respondent and repaid the

amount. However, he could not get back the cheque. To

substantiate his repayment, he has not produced any

documents. However, the issuance of the cheque, signature on

the cheque have not been disputed. Even assuming that, the

respondent has failed to establish that, in addition to the

amount of Rs.2,00,000/- which he had lent to the petitioner, he

paid Rs.80,000/- once again to the petitioner, however, there is

an admission by the petitioner by way of cross-examination

that he had borrowed Rs.2,00,000/- has to be accepted. In the

background of the evidence of PW.1 and also cross

examination, it is appropriate to modify the judgment of

conviction and order of sentence passed by the Trial Court and

also its confirmation order of the Appellate Court as mentioned

below.

15. In the light of the observations made above, the

points which arose for my consideration are answered as

under:-

     Point No.(i)          - "Partly in the Negative"

     Point No.(ii)         - "Partly in the Affirmative"

                                  CRL.RP No. 659 of 2020



                     ORDER


(i)     The Criminal Revision Petition is allowed-in-part.


(ii)    The   judgment    of    conviction    and   order   of

sentence, dated 12-07-2019 in C.C.No.156/2015

on the file of the Court of the Principal Civil

Judge and J.M.F.C., Puttur, D.K. District and

judgment and order dated 13.10.2020 in

Crl.A.No.5034/2019 on the file of the Court of

the V Additional District and Sessions Judge,

D.K. Mangaluru, sitting at Puttur, D.K., are

modified.

(iii) The petitioner is convicted for the offence under

Section 138 of N.I. Act and he is sentenced to

pay a fine of Rs.2,05,000/- (Rupees Two Lakh

Five Thousand only), in default of payment of