Sri Narayanaswamy vs Smt Padmavathi
2023 Latest Caselaw 6520 Kant

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                                                              NC: 2023:KHC:33482
                                                       CRL.RP No. 221 of 2021




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 14TH DAY OF SEPTEMBER, 2023

                                              BEFORE
                               THE HON'BLE MRS JUSTICE M G UMA

                          CRIMINAL REVISION PETITION NO. 221 OF 2021

                   BETWEEN:
                   SRI. NARAYANASWAMY
                   SON OF MUNIYAPPA
                   AGED ABOUT 40 YEARS,
                   RESIDING AT NO.32,
                   3RD CROSS, NEW COLONY,
                   COX TOWN, JEEVANAHALLI
                   BENGALURU - 560 016
                                                                    ...PETITIONER
                   (BY SRI: NISHITH KUMAR SHETTY, ADVOCATE)

                   AND:
Digitally signed   SMT. PADMAVATHI
by PAVITHRA N
Location: High     WIFE OF SESHADRI
Court Of           AGED ABOUT 35 YEARS
Karnataka
                   RESIDING AT NO.22,
                   3RD CROSS, NEW COLONY,
                   COX TOWN, JEEVANAHALLI,
                   BENGALURU - 560 016.
                                                                   ...RESPONDENT
                   (BY SRI. HARISH .N.R., ADVOCATE)

                         THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
                   SET   ASIDE   THE IMPUGNED       ORDER   OF   DISMISSAL   OF
                   CRL.A.NO.25148/2019 DATED 31.12.2020 OF THE LEARNED LXXIII
                   ADDITIONAL CITY CIVIL AND SESSIONS JUDGE           M.H UNIT,
                   BANGALORE IN CONFIRMING THE JUDGMENT OF CONVICTION AND
                   SENTENCE DATED 02.08.2018 PASED BY THE LVII ACMM,
                   BANGALORE IN C.C.NO.55500/2016 SET ASIDE THE ORDERS OF THE
                   COURTS BELOW, BY ALLOWING THIS CRL.RP.

                       THIS CRL.RP, COMING ON FOR ADMISSION, THIS DAY, THE
                   COURT MADE THE FOLLOWING:
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                                                        NC: 2023:KHC:33482
                                                  CRL.RP No. 221 of 2021




                               ORDER

The accused in CC No.55500 of 2016 on the file of the

learned LVII Additional Chief Metropolitan Magistrate, Mayo Hall

Unit, at Bangalore (hereinafter referred to as 'the Trial Court'

for brevity), is impugning the judgment of conviction and order

of sentence dated 02.08.2018, convicting him for the offence

punishable under Section 138 of Negotiable Instrument Act (for

short 'NI Act') and sentencing him to pay fine of Rs.1,000/-, in

default of payment of the fine amount, to undergo simple

imprisonment for 3 months, to pay compensation of

Rs.2,49,800/- to the complainant and in default to pay the

compensation, to undergo simple imprisonment for a period of

one year, which was confirmed in Criminal Appeal No.25148 of

2019 on the file of the learned LXXIII Additional City Civil and

Sessions Judge, Mayo Hall Unit, Bangaluru (CCH-74)

(hereinafter referred to as 'the First Appellate Court' for

brevity), vide judgment dated 31.12.2020.

2. Brief facts of the case are that, the complainant

filed the private complaint against the accused alleging

commission of the offence punishable under Section 138 of NI

Act. It is contended that the accused had approached the

NC: 2023:KHC:33482 CRL.RP No. 221 of 2021

complainant and borrowed an amount of Rs.1,60,000/- on

18.07.2015. He had issued the cheque bearing No.519498

dated 23.11.2015 for the said amount. When the same was

presented for encashment, it was dishonoured as there was

insufficient funds in the account of the accused. The

complainant issued legal notice notifying the accused about

dishonour of the cheque and calling upon him to repay the

cheque amount. Inspite of service of notice, the accused has

not repaid the cheque amount and thereby, he has committed

the offence punishable under Section 138 of NI Act. Therefore,

the complainant requested the trial Court to take cognizance of

the offence and to initiate legal action against the accused.

3. The learned Magistrate took cognizance of the

offence and issued summons to the accused to appear the

before the Court. The accused appeared before the trial Court

and pleaded not guilty for the accusation made against him.

The complainant examined herself as PW-1 and got marked

Exs.P1 to P6 in support of her contention. The accused has

denied all the incriminating materials available on record in his

statement recorded under Section 313 of Cr.PC, but has not

chosen to led any evidence in support of his defence. The trial

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Court after taking into consideration all these materials on

record, came to the conclusion that the complainant is

successful in proving the guilt of the accused beyond

reasonable doubt. Accordingly, the accused was convicted and

sentenced as stated above.

4. Being aggrieved by the same, the accused preferred

Crl.A.No.25148/2019. The First Appellate Court on re-

appreciation of the materials on record, dismissed the appeal

by confirming the impugning judgment of conviction and order

of sentence passed by the Trial Court.

5. Being Aggrieved by the same, the accused is before

this Court in the present revision petition.

6. Heard Sri.Nishith Kumar Shetty, learned counsel for

the revision petitioner/accused and Sri.Harish N.R, learned

counsel for respondent/complainant. Perused the materials,

including the trial Court records.

7. Learned counsel for the revision petitioner/accused

contended that the accused had admitted issuance of the

cheque towards discharge of the debt and he is ready and

NC: 2023:KHC:33482 CRL.RP No. 221 of 2021

willing to compromise the matter with the respondent. Before

the trial court, the accused made similar submission, but later,

he had not appeared before the trial Court. However, learned

counsel for the petitioner submits that the accused will

compromise the matter with the complainant and report the

same to the Court. However the learned counsel for the

petitioner was not in a position to give the timeline within

which, the accused could pay the fine amount and settle the

dispute.

8. Per contra, learned counsel for the

respondent/complainant opposing the revision submitted that,

the accused has categorically admitted issuance of the cheque

towards legally recoverable debt. Moreover, PW-1 was

examined and relevant documents were marked as per Exs.P1

to P6. Thereby, initial burden of the complainant is discharged.

The burden shifts on the accused to rebut the presumption.

The accused has not rebutted the presumption under Sections

118 and 139 of NI Act. Therefore, the trial Court and the First

Appellate Court were right in convicting the accused. There are

no reasons to interfere with the impugned judgment of

NC: 2023:KHC:33482 CRL.RP No. 221 of 2021

conviction and order of sentence passed by the trial Court.

Accordingly, he prays for dismissal of the petition.

9. In view of the rival contentions urged by learned

counsel for both the parties, the point that would arise for my

consideration is:

"Whether the impugned judgment of conviction and order of sentence passed by the trial Court, which was confirmed by the First Appellate Court suffers from infirmity and perversity and calls for interference by this Court?"

My answer to the above point is in the 'Negative' for the

following;

REASONS

10. The complainant contended that the accused had

borrowed an amount of Rs.1,60,000/- on 23.11.2015 and

towards repayment of the same, the cheque dated 23.11.2015

was issued for Rs.1,60,000/- in favour of the complainant.

When the cheque was presented for encashment, the same was

dishonoured as there was insufficient funds in his account.

Inspite of service of notice, the accused neither repaid the

NC: 2023:KHC:33482 CRL.RP No. 221 of 2021

cheque amount, nor issued any reply notice. Thereby, he has

committed the offence punishable under Section 138 of NI Act.

To prove his contention, the complainant examined herself as

PW-1 and got marked Exs.P1 to P6 in support of her

contention. Inspite of giving sufficient opportunities, PW-1 was

never cross-examined by learned counsel for the accused, nor

the accused stepped into the witness box to depose about his

defence. The materials on record disclose that the accused

categorically admitted issuance of the cheque marked as per

Ex.P1. It is also admitted that the cheque in question was

dishonoured as there was insufficient funds. Issuance of notice

as per Ex.P3 and service of notice as per Exs.P4 to P6 is also

not disputed. Under such circumstances, the accused is liable

for conviction.

11. It is pertinent to note that even at this stage,

learned counsel for the accused submits that the accused is

ready and willing to settle the dispute by paying the fine

amount. Such submissions are being made since from the time

when the matter was pending before the trial Court. I do not

find any bona-fides in the submission made by learned counsel

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for the accused that the accused will pay the fine amount and

settle the dispute.

12. From the materials on record, I am opinion that the

complainant is successful in proving the guilt of the accused

beyond reasonable doubt. Therefore, the accused is liable for

conviction.

13. I have gone through the impugned judgment of

conviction and the order of sentence passed by the Trial Court,

which was confirmed by the First Appellate Court. Both the

Courts have taken into consideration all the materials on record

in a proper perspective and arrived at a right conclusion. I do

not find any reason to interfere with the same. Hence, I

answer the above point in the 'Negative' and proceed to pass

the following:

ORDER

(i) The criminal revision petition is dismissed.

(ii) The amount in deposit, if any, be transmitted to the

Trial Court to appropriate towards the fine and compensation.

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Registry is directed to send back the Trial Court records

along with copy of this order.

Sd/-

JUDGE

PN/Rak