Sri. B. Nataraj vs Sri. Dinesh
2023 Latest Caselaw 5051 Kant

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                                                       NC: 2023:KHC:26589
                                                        CRL.RP No. 644 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 31ST DAY OF JULY, 2023

                                              BEFORE
                         THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                          CRIMINAL REVISION PETITION NO. 644 OF 2019
                      BETWEEN:

                      SRI. B. NATARAJ
                      AGED ABOUT 39 YEARS,
                      S/O LATE BASAVARAJU,
                      PROPRIETOR, DARSHAN TRADERS,
                      MARUTHI NAGAR, ARASIKERE TOWN,
                      HASSAN DISTRICT - 573 103.
                                                                   ...PETITIONER
                      (BY SRI. VIJAY KRISHNA BHAT .M, ADVOCATE)
                      AND:

                      SRI. DINESH
                      AGED ABOUT 46 YEARS,
                      S/O PARAMESHWARAPPA,
                      R/AT NEAR SRI KARIAMMA TEMPLE,
                      5TH CROSS, SUBHASH NAGAR,
                      ARASIKERE TOWN - 573 103,
Digitally signed by
                      HASSAN DISTRICT.
RENUKAMBA K G                                                     ...RESPONDENT
Location: High        (BY SRI. N.R. NAIK, ADVOCATE)
Court of
Karnataka                  THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C,
                      PRAYING TO SET ASIDE THE JUDGMENT DATED 26.03.2019
                      PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS
                      JUDGE, HASSAN IN CRL.A.NO.269/2018 AND SET ASIDE THE
                      JUDGMENT DATED 06.10.2018 PASSED BY THE SENIOR CIVIL
                      JUDGE AND J.M.F.C., ARASIKERE IN C.C.NO.141/2015 AND
                      CONSEQUENTLY DISMISS THE COMPLAINT.

                           THIS PETITION COMING ON FOR ADMISSION THIS DAY,
                      THE COURT MADE THE FOLLOWING:
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                                             NC: 2023:KHC:26589
                                              CRL.RP No. 644 of 2019




                               ORDER

This petition is filed under Section 397 read with Section

401 of Cr.P.C. by the accused challenging the judgment of

conviction and order of Sentence dated 26.03.2019 passed by

the Senior Civil Judge and JMFC, Arsikere ('trial Court' for

short) in C.C. No.141/2015 and confirmed by the V Additional

Sessions Judge, Hassan ('Appellate Court' for short), in Criminal

Appeal No.269/2018.

2. For the sake of convenience, the parties herein are

referred with the original ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are that,

the complainant and accused are known to each other and on

19.03.2015, the accused borrowed a sum of Rs.3,50,000/-

from the complainant for his family necessities and

development of his business, agreeing to repay the said loan

with interest at 2% per annum and also executed On-demand

Promissory Note and consideration receipt. But, the accused did

not repay the amount as agreed. On 15.04.2015, when the

complainant sought for repayment of said loan amount, the

NC: 2023:KHC:26589 CRL.RP No. 644 of 2019

accused has issued a cheque for Rs.3,50,000/-. When the said

cheque was presented to the Bank for encashment, it was

returned on the ground that, 'signature differs'. The

complainant has got issued a legal notice to the accused on

23.04.2015 and though the said notice was served upon the

accused on 24.05.2015, the accused did not respond to the

notice. Hence, a complaint came to be lodged by the

complainant under Section 200 of Cr.P.C. for the offence

punishable under Section 138 of the Negotiable Instruments

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

4. On the basis of the complaint and after recording

sworn statement, the learned Magistrate has taken cognizance

and issued process against the accused. The accused appeared

through his counsel and was enlarged on bail. He was also

provided with the prosecution papers. The plea under Section

138 of the N.I. Act is framed and the same is denied by the

accused.

5. The complainant was examined as PW.1 and three

witnesses were examined on his behalf as PW.2 to PW.4.

Further the complainant has also placed reliance on 15

NC: 2023:KHC:26589 CRL.RP No. 644 of 2019

documents, which were marked as Exs.P1 to P15. During cross-

examination of the complainant, Ex.D1 (Agreement of Sale)

was got marked on behalf of the accused. Further, the

complainant has also got examined the Court Commissioner as

CW.1 and Exs. C1 to C3 were also got marked.

6. After conclusion of evidence of the complainant, the

statement of accused under Section 313 of Cr.P.C. was

recorded to enable the accused to explain the incriminating

evidence appearing against him in the case of the complainant.

The case of accused is of total denial. However, the accused

did not choose to lead any oral or documentary evidence in

support of his defence.

7. Having heard the arguments and on appreciating

the oral and documentary evidence, the learned Magistrate has

convicted the accused for the offence punishable under Section

138 of the N.I. Act and imposed sentence of fine of

Rs.5,00,000/-, with default sentence of S.I. for three months.

8. Being aggrieved by the said judgment of conviction

and order of sentence, the accused has approached the

learned V- Additional Sessions Judge, Hassan (for short,

NC: 2023:KHC:26589 CRL.RP No. 644 of 2019

'Appellate Court'), in Criminal Appeal No.269/2018. The

learned Sessions Judge, after reappreciating the oral and

documentary evidence and the arguments advanced by

counsels appearing on both sides, dismissed the appeal by

confirming the judgment of conviction and order of sentence

passed by the learned Magistrate. Being aggrieved by these

concurrent findings, the accused is before this Court by way of

this Revision Petition.

9. Heard the arguments advanced by the learned

counsel for the revision petitioner/accused and the learned

counsel for the respondent/complainant. Perused the records.

10. Learned counsel for the revision petitioner/accused

would contend that, the cheque was dishonoured on the ground

that, 'Signature Differs'. But, both the Courts below have failed

to appreciate this aspect and mechanically rejected the defence

of the accused. He would also contend that, there is an

agreement regarding interest. But, the allegations disclose that

the cheque was issued for the principal amount, which creates

a doubt regarding genuineness of transaction and hence, he

would seek for indulgence of this Court by setting aside the

NC: 2023:KHC:26589 CRL.RP No. 644 of 2019

judgment of conviction and order of sentence passed by both

the courts below.

12. Per contra, the learned counsel for the

respondent/complainant would support the judgment of

conviction and order of sentence passed by both the courts

below. He would contend that, both the courts below have

appreciated the oral and documentary evidence in detail and

have rightly convicted the accused, and the said judgment of

conviction and order of sentence are well-reasoned and as

such, the orders does not call for any interference. Hence, he

would seek for rejection of the revision petition.

13. Having heard the arguments and perusing the

records available, now the following point would arise for my

consideration:-

"Whether both the courts below have committed any illegality in convicting the accused and the judgment of conviction passed by both the courts below calls for any interference?"

14. It is the contention of the complainant that the

accused has borrowed a sum of Rs.3,50,000/- on 19.03.2015.

According to the complainant, the cheque in question was

NC: 2023:KHC:26589 CRL.RP No. 644 of 2019

issued in discharge of legally enforceable debt and the original

cheque was produced at Ex.P1. The On-demand Promissory

Note and Receipts are also produced at Exs.P2 and P3.

Further, the attesting witnesses to these documents are also

examined by the complainant.

15. The cheque was admittedly returned with an

endorsement ' 'Signature Differs'. However, it is not the case

of the accused that Ex.P1-Cheque does not bear his signature.

No such defence is set-up by the accused. Even if the

signature differs, at least there should be sufficient balance in

Bank Account of the accused. But, the accused also has not

produced the statement of his bank account to show that,

though the cheque has returned with an endorsement

'Signature Differs', he had sufficient balance in his Account, to

substantiate his contention that the offence under Section 138

of the N.I. Act is not attracted. But, no steps were taken in this

regard.

16. The Bank Manager also got examined as PW.2 and

though he admits that the signature differs, his admission

further discloses that, the Bank Authorities would compare the

NC: 2023:KHC:26589 CRL.RP No. 644 of 2019

admitted signature on the cheque, with the signature of the

account holder fed in computer system. But, he never asserted

that the signature of the accused on the Cheque-Ex.P1 was

compared with the signatures in his Original Bank Account

opening papers or model signatures obtained. Further, the

complainant has also examined CW.1, who is the Commissioner

and an Expert, and he has stated that the disputed signature

on Ex.P1 is that of accused, as it tallies with the admitted

signature of the accused. Much argument was advanced

before the trial Court in this regard. But, when the accused

himself has not disputed the signature, this exercise was

unwarranted.

17. The evidence of PW.1, PW.2 and PW.4 clearly

establish that the cheque belongs to the accused and it bears

his signature. As such, the initial presumption under Section

139 of the N.I. Act is in favour of the complainant and it is for

the accused to rebut the said presumption. But, interestingly

the accused has never stepped into the witness box. He has

simply cross-examined the complainant with a formal denial

and his statement recorded under Section 313 Cr.P.C. is also

silent, except formal denial. He has not specifically disputed

NC: 2023:KHC:26589 CRL.RP No. 644 of 2019

the signature and though a legal notice was served on him, he

did not bother to reply. His silence speaks lot of things.

Though the accused has set-up defence that the cheque was

stolen from his house, he neither lodged any complaint nor he

submitted any requisition to the Bank regarding losing of his

cheque and requesting the bank authority to dishonour the said

cheque. Hence, the conduct of the accused itself would clearly

establish that, he has failed to rebut the presumption available

in favour of the complainant. The accused has issued a

cheque, which bears his signature and it is evident from his

conduct that, he was having knowledge that he is not having

sufficient funds/balance in his account as on the date of

dishonour of the Cheque-Ex.P1. Hence, the presumption under

Section 139 of the N.I. Act is required to be drawn in favour of

the complainant and the accused/revision petitioner has failed

to rebut the same and as such, it is evident that the

accused/revision petitioner has issued the cheque-Ex.P1 having

knowledge that, there is no sufficient fund in his account and

thereby committed offence under Section 138 of the N.I. Act.

18. Both the Courts below have appreciated the oral as

well as documentary evidence in detail and have rightly

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NC: 2023:KHC:26589 CRL.RP No. 644 of 2019

rejected the defence of the accused by convicting him. No

illegality or infirmity is found in the judgment of conviction and

order of sentence. Though the Cheque is pertaining to

Rs.3,50,000/-the trial Court has imposed fine of Rs.5,00,000/-

with a direction that Rs.4,95,000/- shall be paid to the

complainant under Section 357 of Cr.P.C. The cheque was

issued in the year 2015 and we are now in the year 2023. The

accused has enjoyed the money without any interest for more

than eight years. Considering the above aspects, question of

remission of sentence does not arise at all.

19. Looking to the above facts and circumstances, no

grounds are forthcoming for interfering with the judgment of

conviction and order of sentence passed by both the Courts

below. Hence, the appeal being devoid of any merit, does not

survive for consideration. No grounds are made-out for

admitting the petition and hence, the petition needs to be

dismissed at the stage of admission itself. Hence point under

consideration is answered in the negative. Accordingly, I

proceed to pass the following:-

ORDER

i) The Revision Petition is dismissed.

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NC: 2023:KHC:26589 CRL.RP No. 644 of 2019

ii) The impugned judgment of conviction and order of Sentence passed by the trial Court viz., Senior Civil Judge and JMFC, Arsikere in C.C.

No.141/2015 for the offence under Section 138 of the N.I. Act and confirmed by the Appellate Court viz., V Additional Sessions Judge, Hassan, in Criminal Appeal No.269/2018, stand confirmed.

iii) The trial Court is directed to secure the presence of the accused/revision petitioner for the purpose of serving the remaining sentence of imprisonment.

Sd/-

JUDGE

KGR*