Karnataka High Court
Chandram vs Sunil on 5 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2024:KHC-K:1289
CRL.RP No.200131 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.200131 OF 2023
(397)
BETWEEN:
CHANDRAM S/O PEERAPPA
AGE: 70 YEARS, OCC: RTD. GOVT. SERVANT,
R/ AT H.NO.2/789/9, SEDAM ROAD,
NEAR MRMC MEDICAL COLLEGE,
BHARAT NAGAR TANDA,
KALABURAGI-585105.
...PETITIONER
(BY SRI B. C. JAKA, ADVOCATE)
Digitally signed by
SHILPA R AND:
TENIHALLI
Location: HIGH
COURT OF
KARNATAKA
SUNIL S/O SHAMRAO CHAKOLE
AGE: 37 YEARS, OCC: BUSINESS AND
PHOTOGRAPHER,
R/ AT H.NO.2-811/42, SEDAM ROAD,
NEAR MRMC MEDICAL COLLEGE,
SUNDAR NAGAR, KALABURAGI,
(BRAHAMPUR POLICE STATION)-585105.
...RESPONDENT
(RESPONDENT SERVED)
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NC: 2024:KHC-K:1289
CRL.RP No.200131 of 2023
THIS CRL.RP IS FILED U/SEC. 397(1) R/W SEC. 401 OF
CR.P.C PRAYING TO CALL FOR THE RECORDS IN
C.C.NO.3281/2018, ON THE FILE OF PRINCIPAL CIVIL JUDGE
AND JMFC AT KALABURAGI AND CRL.A.NO.34/2022, ON THE
FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
KALABURAGI, TO SATISFY THE CORRECTNESS. SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 08.07.2022, IN C.C.NO.3281/2018, BY THE PRINCIPAL
CIVIL JUDGE AND JMFC AT KALABURAGI AND JUDGMENT AND
ORDER DATED 07.10.2023, IN CRL.A.NO.34/2022 PASSED BY
THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
KALABURAGI, BY ALLOWING THIS CRIMINAL REVISION
PETITION. CONSEQUENTLY ACQUIT THE PETITIONER FOR THE
OFFENCE PUNISHABLE U/SEC. 138 OF NEGOTIABLE
INSTRUMENT ACT AND PASS SUCH OTHER RELIEF/S AS THIS
HON'BLE COURT DEEMS FIT TO GRANT IN THE
CIRCUMSTANCES OF THE CASE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the revision
petitioner/accused challenging the judgment of conviction
and order of sentence passed by the Principal Civil Judge
and JMFC, Kalaburagi in C.C.No.3281/2018 for the offence
under Section 138 of the Negotiable Instruments Act (for
short 'the NI Act') and confirmed by the learned III
Additional District and Sessions Judge, Kalaburagi in
Criminal Appeal No.34/2022 vide order dated 07.10.2023.
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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
as under:
That on 10.10.2017, the accused has demanded
hand loan of Rs.4,00,000/- from the complainant and as
per the request, the complainant has advanced hand loan
of Rs.4,00,000/- on 12.10.2017 to the accused. The
accused towards repayment of the said legal enforceable
liability, issued a cheque in Ex.P.1 dated 22.03.2018 and
when the said cheque came to be presented, it was
bounced for 'insufficient of funds'. Thereafter, the
complainant has issued a legal notice to the accused and
though the legal notice is served on the accused, he did
not respond and hence, a complaint was lodged.
4. The learned Magistrate after recording the
sworn statement of the complainant has taken cognizance
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and issued process against the accused. The accused has
appeared through his counsel and was enlarged on bail.
The plea under Section 138 of the NI Act is framed and
the accused denied the same.
5. The complainant was got examined as P.W.1
and placed reliance on 8 documents marked at Exs.P.1 to
P.8. After conclusion of the evidence of the complainant,
the statement of the accused under Section 313 of Cr.P.C.
is recorded to enable the accused to explain the
incriminating evidence appearing against him in the case
of the prosecution. The case of the accused is of total
denial. In the statement under Section 313 of Cr.P.C., the
accused did not set up any defence. Thereafter the
accused got examined himself as D.W.1, but did not
produce any documents.
6. After hearing the arguments and after perusing
the oral and documentary evidence, the learned
Magistrate has convicted the accused for the offence under
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Section 138 of the NI Act by imposing fine of
Rs.4,20,000/- with default sentence of six months.
7. Being aggrieved by this judgment of conviction
and order of sentence, the accused has approached the
learned III Additional Sessions Judge, Kalaburagi in
Criminal Appeal No.34/2022. The learned Sessions Judge
after re-appreciating the oral and documentary evidence,
has dismissed the appeal by confirming the judgment of
conviction and order of sentence passed by the Trial Court.
Against these concurrent findings, the accused is before
this Court by way of revision.
8. Heard the arguments advanced by the learned
counsel for the revision petitioner. The respondent though
served is un-represented. Perused the records.
9. The learned counsel for the petitioner would
contend that the signature on the cheque was forged and
the notice is not served on the accused and the signature
on the notice differs from the admitted signature of the
accused. Hence, he would contend that the mandatory
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provisions of NI Act were not complied with and as such,
he would seek for allowing the revision by setting aside
the impugned judgment of both the Courts below
convicting the accused for the offence under Section 138
of the NI Act.
10. It is evident that the complainant has alleged
that the accused has availed hand loan of Rs.4,00,000/-
and in discharge of the said amount, he has issued
disputed cheque under Ex.P.1. The complainant is
examined as P.W.1 and in his examination-in-chief, he has
reiterated the complaint allegations. During the course of
cross-examination, the accused has gone to the extent of
disputing his signature on acknowledgment marked at
Ex.P.6. A simple suggestion is made in the cross-
examination of P.W.1 that Ex.P.1(a) is not the signature of
accused. No specific suggestion is made that signature is
forged one.
11. The first contention of the accused is that non-
service of notice. But on perusal of acknowledgement at
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Ex.P.6, it is evident that notice was issued to the proper
address of the accused and the same address is disclosed
by the accused in the appeal memo. Hence, it is evident
that the notice was issued to the proper address and
hence, non-service of notice on the ground that the
signature on Ex.P.6 is not belonging to the accused holds
no water.
12. The other contention raised by the accused is
that the cheque was stolen from his house and the
signature was forged. However, during the entire cross-
examination of P.W.1, no specific suggestion has been
made to the effect that the signature marked at Ex.P.1(a)
is a forged signature. Other simple suggestion was made
that signature does not belong to the accused. However, it
is interesting to note here that the Court summons has
been issued to the accused through registered post and
Ex.P.7 is an acknowledgment. On Ex.P.7, admitted
signature of the accused is available and when it is
compared with signature at Ex.P.1, it is evident that they
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are one and the same. Apart from that, Ex.P.8 is the
Aadhar Card of the accused and it discloses that the
address referred is the address given in Ex.P.6. When the
accused got enlarged on bail, he has executed self-bond
for a sum of Rs.50,000/- in form No.45 and it bears his
signature. The said signature also tallies with signature on
Ex.P.1. Hence, when signature of the accused on Ex.P.1 is
compared with admitted signatures of the accused on
postal acknowledge as well as bail bond, it is evident that
they are one and the same. However, while signing the
Vakalath, the accused has intentionally changed his
signature and he tried to change the signature on his
deposition, but he could not change the style of the
signature. Even his admitted signature is available in his
313 statement which discloses that on each date, he
singed differently. Hence, it is evident that the accused
tried to mislead the Court. Even he did not venture to
seek expert's opinion. The account opening form wherein
his admitted signature is available could have been
secured by him so as to compare the signature. The
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cheque was not returned for variation in the signature but
the cheque was admittedly bounced for insufficient of
funds. Looking to these facts and circumstances, the
presumption under Section 139 of the NI Act is available in
favor of the complainant. The accused has failed to rebut
the said presumption.
13. Both the Courts below have appreciated the
oral and documentary evidence in proper perspective and
have also considered the conduct of the accused/revision
petitioner. They have rightly convicted the accused and
imposed a meager sentence. No perversity is found in the
judgment of conviction and order of sentence passed by
the Trial Court. No grounds are forthcoming for admitting
the revision petition. Hence, the petition stands
dismissed.
Sd/-
JUDGE
RSP
