Karnataka High Court
Girish Kumar B G vs Sri Edward D'Souza on 3 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:13602
CRL.RP No. 1134 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.1134 OF 2018
BETWEEN:
1. GIRISH KUMAR B.G.,
S/O GOPALA KRISHNA,
AGED ABOUT 32 YEARS,
R/AT DARANDA KUKKU HOUSE,
KODINBODY POST,
PUTTUR, D.K.-574 120.
...PETITIONER
(BY SRI B.M.KUSHALAPPA, ADVOCATE)
AND:
1. SRI EDWARD D'SOUZA
PROPRIETOR,
M/S. DAWN INFOTECH,
Digitally signed
by SHARANYA T NO.67, INDUSTRIAL AREA, 5TH BLOCK,
Location: HIGH JYOTHI NIVAS COLLEGE ROAD,
COURT OF KORAMANGALA,
KARNATAKA BENGALURU-560 095.
...RESPONDENT
(BY SMT. MARIO NOEL D ROZARIO, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT BEING PASSED
IN CRL.A.NO.509/2016 PASSED ON THE FILE OF THE
PRESIDING OFFICER, LII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE, DATED 19.06.2018 AND THE
JUDGMENT BEING PASSED IN C.C.NO.3692/2011 DATED
06.02.2016 ON THE FILE OF THE XIII A.C.M.M., BANGALORE.
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CRL.RP No. 1134 of 2018
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the
learned counsel for the respondent.
2. The proceedings was initiated against the petitioner
under Section 138 of the Negotiable Instruments Act ('NI Act'
for short) in view of when the cheque for Rs.80,000/- was
presented, the same was returned with an endorsement "funds
insufficient." Hence, legal notice was issued and the
accused/petitioner did not comply with the demand. The
complaint was filed and cognizance was taken and the accused
was secured and he did not plead guilty. Hence, the
complainant examined himself as P.W.1 and got marked the
documents at Exs.P.1 to 9 and closed his side of evidence.
P.W.1 was not cross-examined by the learned counsel for the
accused. The Trial Court convicted the accused for the offence
punishable under Section 138 of the NI Act and ordered to pay a
fine of Rs.1,50,000/- and in default of payment of fine amount
to undergo simple imprisonment for a period of six months. The
same was challenged in Crl.A.No.509/2016 and the Appellate
Court having re-assessed the material available on record,
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modified the judgment and ordered to pay fine of Rs.85,000/-.
Out of that, an amount of Rs.80,000/- is payable to the
complainant and an amount of Rs.5,000/- shall vest with the
State. Being aggrieved by the said order, the present revision
petition is filed before this Court.
3. The learned counsel for the petitioner would
vehemently contend that no opportunity was given to cross-
examine P.W.1 and both the Courts grossly erred in invoking
Section 138 of the NI Act and misread the provisions of Section
139 of NI Act. Both the Courts below lost sight of the fact that
the complainant failed to satisfy the statutory requirements of
Section 138 of the NI Act. The Court should have drawn
adverse inference as per Section 114 of the Evidence Act.
Hence, it requires interference of this Court.
4. The learned counsel for the respondent submits that
when the complainant was examined, the evidence of the
complainant has not been rebutted either by cross-examining
P.W.1 or producing any document and even not stepped into the
witness box. Hence, the contention that the Trial Court as well
as the Appellate Court lost sight of the material on record
cannot be accepted. The learned counsel submits that in the
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appeal, the Appellate Court modified the judgment of the Trial
Court and directed to pay an amount of Rs.85,000/- i.e., the
Cheque amount of Rs.80,000/- and fine of Rs.5,000/- to vest
with the State and the same has not been complied.
5. Having heard the learned counsel for the petitioner
and the learned counsel for the respondent, this Court can
exercise the revisional powers, if the case of the complainant is
rebutted either by way of effective cross-examination of P.W.1
and by leading any rebuttable evidence by the revision
petitioner and the same has not been done. Hence, the
question of exercising revisional powers does not arise. The
revisional powers can be exercised only if any perversity is
found in assessing the evidence available on record. When the
evidence of the complainant is not disputed and rebutted by the
revision petitioner, the question of exercising the revisional
powers does not arise. Hence, I do not find any ground to
entertain this petition and apart from that, the Appellate Court
re-assessed the material available on record and reduced the
fine amount from Rs.1,50,000/- to Rs.85,000/- taking note of
the Cheque amount of Rs.80,000/-. Hence, I do not find any
ground to exercise the revisional powers.
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6. In view of the discussions made above, I pass the
following:
ORDER
The criminal revision petition is dismissed.
Sd/-
JUDGE
MD
