Sri R Shivashankar vs Sri K Kumar
2023 Latest Caselaw 1944 Kant

                                                  -1-
                                                           CRL.RP No. 843 of 2014




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                            DATED THIS THE 21ST DAY OF MARCH, 2023
                                                BEFORE
                         THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                                     CRL.R.P. No. 843 OF 2014
                   BETWEEN:
                   SRI R. SHIVASHANKAR
                   AGED ABOUT 46 YEARS
                   SON OF S.V. RAMAN
                   RESIDING AT 17, 24TH MAIN
                   J.P.NAGAR 5TH PHASE
                   BANGALORE - 560 078.

                   AND ALSO AT NO.12,
                   1ST CROSS JALAKANTESHWARA
                   NAGAR, BANGALORE.
Digitally signed                                                     ...PETITIONER
by B A KRISHNA
KUMAR
Location: High     (BY SRI RAVISHANKAR S, ADV.)
Court of
Karnataka
                   AND:
                   SRI K. KUMAR
                   AGED ABOUT 38 YEARS
                   S/O KRISHNA REDDY
                   R/AT NO.2399, 22ND CROSS
                   8TH MAIN, BSK 2ND STAGE
                   BANGALORE - 560 070.
                                                                    ...RESPONDENT
                   (BY SRI G.H. NAGARAJ, ADV)


                        THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C PRAYING TO
                   SET ASIDE THE ORDER DATED:15.9.14 PASSED BY THE P.O., FTC-V,
                   BANGALORE IN CRL.A.NO.443/14 AND CONFIRMING THE ORDER
                   DATED:5.4.14 PASSED BY THE XXII ADDL.C.M.M., BANGALORE CITY
                   IN   C.C.NO.8182/12   AND      RECORD    ACQUITTAL    OF   THE
                   PETR/ACCUSED BY ALLOWING THE ABOVE CRL.RP. AND DISMISS
                   THE COMPLAINT.


                        THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
                   THE COURT MADE THE FOLLOWING:
                               -2-
                                       CRL.RP No. 843 of 2014




                            ORDER

This Criminal revision petition under Section 397 of the

Code of Criminal Procedure, 1973 (for short 'Cr.P.C') has been

filed by the accused challenging the judgment and order of

conviction and sentence passed by the Court of XXII ACMM,

Bengaluru (for short the 'Trial Court) in C.C.No.8182/2012

dated 05.04.2014 and the judgment and order passed by Fast

Track (Sessions) Judge -V, Bengaluru City (for short the

'Appellate Court') in Crl.A.No.443/2014 dated 15.09.2014.

2. Heard the learned counsel appearing for the parties.

3. Facts leading to filing of this petition as revealed

from the records narrated briefly are, the respondent-

complainant had filed a private complaint under Section 200 of

Cr.P.C., against the petitioner for the offence punishable under

Section 138 of Negotiable Instruments Act, 1881 ( for short,

the 'Act') contending that the petitioner had borrowed a sum of

Rs.5 lakhs from him in the month of February, 2011 and

towards repayment of the said amount, he had issued a cheque

bearing no.559135 dated 06.06.2011 drawn on SBM, BHEL

Branch, Bengaluru for a sum of Rs.5 lakhs. The said cheque on

presentation for realization was dishonoured by the drawee

CRL.RP No. 843 of 2014

bank with endorsement "insufficient funds". The respondent-

complainant thereafter got issued a legal notice on 05.08.2011

which was sent to the petitioner through RPAD and also COP. In

spite of service of notice, the petitioner neither paid the amount

demanded in the legal notice nor issued any reply to the same.

It is under this circumstance, the respondent had approached

the jurisdictional Magistrate and filed a private complaint

against the petitioner for the offence punishable under Section

138 of N.I. Act.

4. In the said proceedings, after service of summons,

the petitioner had appeared before the Trial Court and pleaded

not guilty. The respondent therefore to prove his case had

examined himself as PW.1 and got marked 8 documents as

Exs.P1 to P8. The petitioner who had denied the incriminating

material available against him on record during the course of

his Section 313 of Cr.P.C, statement had also examined himself

as DW.1 in support of his defence. However, no documents

were marked on his behalf. After hearing the arguments

addressed on both sides the trial court by its judgement and

order dated 05.04.2014 had convicted the petitioner for the

offence punishable under section 138 of the Act and sentenced

CRL.RP No. 843 of 2014

him to pay fine of Rs.5,05,000/- and in default, to undergo

simple imprisonment for 6 months. The appeal filed by the

petitioner - accused against the said judgement and order of

conviction and sentence passed by the trial court was dismissed

by the appellate court in Crl.A.No.443/2014 on 15.09.2014. It

is under this factual background, the petitioner is before this

Court.

5. Learned counsel for the petitioner submits that the

Courts below have erred in convicting the petitioner for the

alleged offence. He submits that there is no compliance of

requirement under Section 138(b) of the Act and therefore, the

Courts below could not have convicted the petitioner for the

alleged offence. He submits that the cheque in question was

issued as security for loan of Rs.1 lakh borrowed by the

petitioner from the respondent and the same was misused. He

submits that the respondent had no financial capacity to pay a

sum of Rs.5 lakh to the petitioner and unless he proves his

financial capacity a presumption under Section 139 of the Act is

not available against the petitioner. Accordingly, he prays to

allow the revision petition.

CRL.RP No. 843 of 2014

6. The complainant in order to substantiate his case

had examined himself as PW1 before the Trial Court and had

got marked 8 documents. Exs.P1 is the cheque in question

issued by the petitioner. The signature found in the said cheque

and contents of the said cheque are not seriously disputed by

the petitioner. It is his case that the said cheque was issued as

security for loan of Rs.1 lakh borrowed by him earlier and the

said cheque has been misused by the respondent -

complainant. Once the signature and contents of the cheque

are admitted by the petitioner, a presumption under Section

118 and 139 of the Act arises against him and it is for him to

rebut the same in the manner known to law. Though the

petitioner has stated that the cheque in question was issued as

a security to the loan borrowed by him from the respondent, he

has not proved any such transaction as alleged, with the

respondent. The petitioner has also raised contention that

notice as required under Section 138(b) of the Act is not served

upon the petitioner. He has relied on Ex.P7 and submitted that

the name and address mentioned in the said document does

not belong to the petitioner. He also submitted that Ex.P3

notice has not been served upon the petitioner and Ex.P6 does

not bear signature of the petitioner and the address found in

CRL.RP No. 843 of 2014

the said document is also not of the petitioner. He submits that

the petitioner is residing at No.7, 24th Main, J P Nagar 5th

phase, Bengaluru-560 078 and not at No.17, 24th Main, J P

Nagar 5th phase, Bengaluru-560 078.

7. The material available on record would go to show

that summons issued to the petitioner at No.17, 24th Main, J P

Nagar 5th phase, Bengaluru-560 078 was duly served on him

and the petitioner during the course of his cross-examination

has admitted that that the signature found on the back of the

summons belongs to him. Therefore, it is evident that address

mentioned in the summons issued to the petitioner and also

address mentioned in the legal notice Ex.P3 issued to the

petitioner are one and the same. Therefore, there is no

substance in the contention of the petitioner regarding non

compliance of Section 138(b) of the Act.

8. The petitioner has not disputed the financial

capacity of the respondent at any point of time before the Trial

Court. There is no suggestion made on behalf of the petitioner

to the respondent that he did not have financial capacity to

lend sum of Rs.5 lakhs to the petitioner and for the first time,

such contention is raised by the petitioner before this Court.

CRL.RP No. 843 of 2014

Under the circumstance, I do not find any substance in the said

submission.

9. The Trial Court as well as the Appellate Court

having regard to the fact that the petitioner has not

successfully rebutted the presumption that arise against him

under Section 118 and 139 of the Act, by raising a probable

defence, have recorded a concurrent findings of guilt against

him and accordingly convicted him for the offence punishable

under Section 138 of the Act. The impugned judgment and

order passed by the Courts below are well reasoned and sound

and they do not call for any interference by this Court.

Revision petition is devoid of merit and accordingly the

same is dismissed.

Sd/-

JUDGE NMS