Karnataka High Court
Nagendra K.G vs Eshwara H L on 3 April, 2024
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NC: 2024:KHC:13772
CRL.RP No. 1283 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 1283 OF 2019
BETWEEN:
NAGENDRA .K.G.,
S/O. GOVINDA,
AGED ABOUT 38 YEARS,
R/AT: KUDUMANGALORE VILLAGE,
KUSHALNAGAR HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT - 573 214
...PETITIONER
(BY SRI. CHIRAG U., ADVOCATE
SRI. LETHIF .B., ADVOCATE)
Digitally signed by
SANDHYA S AND:
Location: High
Court of Karnataka ESHWARA .H.L.
S/O. LATE. LINGAPPA,
AGED ABOUT 52 YEARS,
R/AT: CARIAPPA EXTENSION,
KOSAPATNA VILLAGE,
NANJARAYAPATNA POST,
SOMWARPET TALUK,
KODAGU DISTRICT - 573 214
...RESPONDENT
(BY SRI. ESHWARA .H.L., RESPONDENT SERVED AND
UNREPRESENTED)
THIS CRL.RP FILED U/S.397 R/W 401 OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT/ORDER IN CRL.A.NO.13/2019
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CRL.RP No. 1283 of 2019
DATED 03.10.2019 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, KODAGU-MADIKERI AND JUDGMENT AND
ORDER DATED 13.03.2019 IN C.C.NO.949/2016 PASSED BY
THE ADDITIONAL CIVIL JUDGE AND JMFC AT MADIKERI BY
ALLOWING THE ABOVE REVISION PETITION AND ACQUIT THE
PETITIONER.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is preferred against the
judgment of conviction and order of sentence dated
13.03.2019 passed in C.C.No.949/2016 by the Addl.Civil
Judge and JMFC, Madikeri (hereinafter referred to as 'Trial
Court') which is confirmed vide the judgment dated
03.10.2019 passed in Crl.Appeal No.13/2019 by the Prl.
District and Sessions Judge, Kodagu-Madikeri (hereinafter
referred to as 'Appellate Court').
2. For the sake of convenience, the parties in this
revision petition are referred to as per their status and
rank before the Trial Court.
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3. The brief facts of the complaint are that the
accused has borrowed a sum of Rs.3,50,000/- from the
complainant for his legal necessity. In this regard the
accused has issued a cheque bearing No.465384, drawn
on State Bank of India, Somwarpet Thyagaraj road branch
dated 15.09.2015. When cheque was presented for
encashment, same was returned with shara 'funds
insufficient' and he came to know about this on
27.10.2015. Thereafter, the complainant issued a legal
notice to the accused on 20.11.2015 calling upon him to
repay the cheque amount. However, the said notice has
not been received by the accused and the same was
returned for the reason that the party left the address.
Even though the accused has received the intimation, he
has failed to repay the cheque amount to the complainant.
As such, the complainant filed complaint against the
accused for the commission of offence punishable under
Section 138 of Negotiable Instruments Act, 1881.
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4. After taking cognizance of the offence, the case
was registered by the Trial Court in C.C.No.949/2016 and
summons was issued to the accused. In response to the
summons, the accused appeared before the Court and was
enlarged on bail. Substance of plea was recorded and the
accused pleaded not guilty.
5. To prove the case of complainant, two
witnesses were examined as PWs.1 and 2 and six
documents were got marked as Exhibits P1 to P6. On
closure of evidence on the complainant's side, statement
of accused under Section 313 of Cr.P.C. was recorded and
the accused denied the incriminating circumstances
appearing against him and did not choose to adduce any
defence evidence on his behalf. On hearing both sides,
the Trial Court has convicted the accused for the offence
punishable under Section 138 of Negotiable Instruments
Act, 1881 and sentenced to pay a fine of Rs.3,80,000/-
out of which, Rs.3,70,000/- has to be paid to the
complainant as compensation. In default to pay the fine
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amount, the accused shall undergo simple imprisonment
for a period of 6 months.
6. Being aggrieved by the judgment of conviction
and order of sentence passed by the Trial Court, the
accused has preferred the appeal before the Prl.District
and Sessions Judge, Kodagu-Madikeri in Crl.Appeal
No.13/2019 and the same came to be dismissed. Being
aggrieved by the judgment passed by both Courts, the
revision petitioner has preferred revision petition.
7. Learned counsel for the petitioner submits that
there is no pleading in the complaint that on which date
the complainant has given Rs.3,50,000/- as a loan to the
accused. During the course of cross examination of PW.1
wherein he has stated that on the same day he had given
amount to the accused and the accused has issued a
cheque. PW.1 has stated in his evidence that he has given
an amount of Rs.3,50,000/- on 11.04.2015 but on perusal
of Ex.P1 - Cheque, it is clear that the date of cheque is
11.04.2015. Therefore, the evidence of PW.1 falsify the
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contents of Ex.P1-cheque as to Rs.3,50,000/- and the
same is not considered by the Trial Court as well as by the
Appellate Court. Further, he has submitted that the notice
issued to the accused has not been served upon the
accused as per Ex.P5 i.e. postal cover with a shara 'party
left address'. Accordingly, the complainant has failed to
comply the mandatory provisions of Section 138 of
Negotiable Instruments Act, 1881. Further, the learned
counsel submits that the complainant has no financial
capacity to lend the loan of Rs.3,50,000/- and the same is
not considered by both Courts. On all these grounds, he
sought to allow the revision petition.
8. Despite service of notice to respondent, he
remained absent and unrepresented.
9. Having heard the arguments of learned counsel
for revision petitioner and on perusal of materials on
record, the following points would arise for my
consideration:
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i. Whether the revision petitioner has made
out the grounds to interfere with the
impugned judgment of conviction and
order of sentence passed by the Trial
Court which is confirmed by the Appellate
Court?
ii. What order?
10. My answer to the above points are as under:
Point No.1: in the negative
Point No.2: as per final order
Regarding point No.1:
10. I have carefully examined the material placed
before the Court.
It is the case of the complainant that the accused has
borrowed a sum of Rs.3,50,000/- from the complainant for
his legal necessity. In this regard, the accused has issued
a cheque bearing No.465384, drawn on State Bank of
India, Somwarpet Thyagaraj road branch dated
15.09.2015. When the complainant has presented the
same for encashment, it was returned with shara 'funds
insufficient' which came to know only on 27.10.2015.
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Thereafter, the complainant has issued a legal notice to
the accused on 20.11.2015 calling upon him to repay the
cheque amount. However, the said notice has not been
received by the accused and the same was returned for
the reason that the party left the address. Even though
the accused has received the intimation, he has failed to
repay the cheque amount to the complainant. As such,
the complainant filed complaint against the accused for
the commission of offence punishable under Section 138 of
Negotiable Instruments Act, 1881. To prove the case of
the complainant, two witnesses were examined as PWs.1
and 2 and six documents were marked as Exs.P1 to P6.
11. A perusal of oral and documentary evidence
makes it crystal clear that the complainant has complied
the mandatory provisions of Negotiable Instruments Act,
1881. With regard to the service of notice is concerned,
Ex.P5 - postal cover is returned with a shara on it 'party
left address'. The address of the accused has not been
disputed by the complainant. On contrary, the accused
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himself has given the same address in Crl.A.No.13/2019
filed by him and also before this Court. The accused has
not adduced any evidence to show that the accused was
not residing in the given address as shown in Ex.P5.
Therefore, in this regard the arguments advanced on
behalf of revision petitioner cannot be accepted.
12. Perusal of Ex.P6, makes it clear that on
11.04.2015, a sum of Rs.3,50,000/- has been transferred
to the accused. Perusal of the cross examination of PW.1
makes it clear that on the date of remitting the amount to
the account of accused, the accused has issued a cheque
in question and this Court cannot infer that the
complainant has misused the cheque in question and he
has altered the date in cheque as 15.09.2015. Therefore,
the arguments advanced on behalf of revision petitioner
cannot be accepted. With regard to the financial capacity
of the complainant is concerned, the accused has not
disputed the entry made in Ex.P6 i.e. statement of account
and this documentary evidence itself is sufficient to prove
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that the complainant has got sufficient financial capacity to
lend the loan of Rs.3,50,000/-. Apart from this, the
accused has not adduced any evidence to prove that the
complainant has no financial capacity to lend loan amount.
The accused has not adduced any evidence before the
Trial Court to rebut the statutory presumption under
Section 139 of N.I. Act. Both the Courts have properly
appreciated the evidence in accordance with law and facts.
I do not find any illegality or infirmity in the impugned
judgment passed by both Courts. Hence, I answer point
No.1 in negative.
Regarding point No.2:
13. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
i. Criminal revision petition is dismissed.
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ii. Registry is directed to send copy of this
order along with records to the concerned
Courts.
Sd/-
JUDGE
SSD
