Karnataka High Court
S.Chandrashekhar S/O Late T ... vs B.Santhosh S/O B.Sridhar Naidu on 16 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-D:3814
CRL.RP No. 100212 of 2022
C/W CRL.RP No. 100211 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100212 OF 2022 (397)
C/W
CRIMINAL REVISION PETITION NO. 100211 OF 2022
IN CRL.R.P.NO. 100212 OF 2022
BETWEEN:
1. S. CHANDRASHEKHAR
S/O LATE T. SETHURAMALINGAM,
AGED ABOUT: 72 YEARS,
OCC: RETD. HEAD MASTER,
R/O VICKY'S SCHOOL COMPOUND,
VIDYANAGAR, KOLAGAL ROAD,
BALLARI-583101.
2. SMT. VANAJA CHANDRASHEKHAR
W/O. S. CHANDRASHEKHAR
AGED ABOUT 70 YEARS,
ANNAPURNA
CHINNAPPA OCC. RETD. TEACHER
DANDAGAL R/O VICKY'S SCHOOL COMPOUND,
VIDYANAGAR, KOLAGAL ROAD,
Digitally signed by
ANNAPURNA
CHINNAPPA DANDAGAL
BALLARI-583101.
Date: 2024.02.21
14:46:49 +0530
...PETITIONERS
(BY SRI LINGESH V. KATTEMANE, ADVOCATE)
AND:
B. SANTHOSH S/O. B.SRIDHAR NAIDU,
AGED ABOUT 33 YEARS,
OCC: SALES REPRESENTATIVE
AT ADARSH HEART CARE AT
BALLARI-583101,
R/O. H.NO.72, WARD NO.14,
BEHIND KAVITA ICE FACTORY,
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NC: 2024:KHC-D:3814
CRL.RP No. 100212 of 2022
C/W CRL.RP No. 100211 of 2022
ANJANEYA TEMPLE STREET,
MILLER PET, BALLARI-583101.
...RESPONDENT
(BY SRI V. SHIVRAJ HIREMATH, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED
19.03.2022 PASSED BY THE IV ADDL. DISTRICT AND SESSIONS
JUDGE (COMMERCIAL COURT), BALLARI IN CRL. APPEAL NO. 7/2022
BY CONFIRMING THE ORDER OF CONVICTION AND SENTENCE
PASSED BY 1ST ADDL. CIVIL JUDGE AND JMFC, BALLARI IN
C.C.NO.22/2017 DATED 07.12.2021 FOR THE OFFENCE PUNISHABLE
U/S 138 OF N.I. ACT BY ALLOWING THIS PETITION.
IN CRL.R.P. NO. 100211 OF 2022
BETWEEN:
1. S. CHANDRASHEKHAR
S/O LATE T. SETHURAMALINGAM,
AGED ABOUT: 72 YEARS,
OCC: RETD. HEAD MASTER
R/O VICKY'S SCHOOL COMPOUND,
VIDYANAGAR, KOLAGAL ROAD,
BALLARI-583101.
2. SMT. VANAJA CHANDRASHEKHAR
W/O S. CHANDRASHEKHAR
AGED ABOUT 70 YEARS,
OCC. RETD. TEACHER
R/O VICKY'S SCHOOL COMPOUND,
VIDYANAGAR, KOLAGAL ROAD,
BALLARI-583101.
...PETITIONERS
(BY SRI LINGESH V. KATTEMANE, ADVOCATE)
AND:
B.SANTHOSH S/O B.SRIDHAR NAIDU,
AGED ABOUT 33 YEARS,
OCC: SALES REPRESENTATIVE
AT ADARSH HEART CARE AT
BALLARI-583101,
R/O. H.NO.72, WARD NO.14,
BEHIND KAVITA ICE FACTORY,
-3-
NC: 2024:KHC-D:3814
CRL.RP No. 100212 of 2022
C/W CRL.RP No. 100211 of 2022
ANJANEYA TEMPLE STREET,
MILLER PET, BALLARI-583101.
...RESPONDENT
(BY SRI V. SHIVRAJ HIREMATH, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED
19.03.2022 PASSED BY THE IV ADDL. DISTRICT AND SESSIONS
JUDGE (COMMERCIAL COURT), BALLARI IN CRL. APPEAL NO.6/2022
BY CONFIRMING THE ORDER OF CONVICTION AND SENTENCE
PASSED BY I ADDL. CIVIL JUDGE & JMFC, BALLARI IN C.C.NO.
21/2017 DATED 07.12.2021 FOR THE OFFENCE PUNISHABLE U/S
138 OF N.I. ACT BY ALLOWING THIS PETITION.
THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
COMMON ORDER
These two revision petitions filed under Section 397
read with Section 401 of Cr.P.C. are between the same
parties and the facts of the case are similar. Therefore,
with the consent of learned counsel for both sides, both
the petitions are heard together and disposed of by this
common order.
2. Facts leading to filing of these two revision
petitions narrated briefly are, the respondent/complainant
had initiated two separate proceedings against the
petitioners herein before the Trial Court in Criminal Case
No.21 and 22 of 2017 with a prayer to convict the
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petitioners herein for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881 (for short,
'the NI Act'). It is the case of respondent that petitioners
herein had borrowed totally a sum of Rs.1,00,000/- from
him on 05.06.2016 and towards repayment of the same,
cheques bearing No.420739 and 420740 dated 05.08.2016
respectively for a sum of Rs.50,000/- drawn on Andhra
Bank, Vasavi School Branch, Ballari in favour of the
respondent were issued from the joint account of
petitioners herein. The cheques in question were signed by
both the petitioners. On presentation of the said cheques
for realization, they were returned by drawee Bank with an
endorsement 'funds insufficient'. Thereafter, the
respondent/complainant had complied the statutory
requirements as provided under the provision of NI Act
and had filed two separate proceedings before the Trial
Court with a prayer to convict the petitioners for the
offence punishable under Section 138 of the NI Act.
3. In the said proceedings, the petitioners herein had
appeared before the Trial Court and pleaded not guilty.
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The complainant in order to prove his case examined
himself as P.W-1 and 08 documents were got marked as
Ex.P.1 to Ex.P.8 in both cases. In support of defence, the
petitioners herein had examined themselves as DW-1 and
DW-2 in both cases. The trial Court after hearing the
Advocates appearing on behalf of parties, had convicted
the petitioners in both cases for the offence punishable
under Section 138 of the NI Act and sentenced them to
pay fine of Rs.70,000/- in each of the case and in default,
to undergo simple imprisonment for a period of three
months. The said Judgment and order of conviction and
sentence passed by the Trial Court in Criminal Case
Nos.21 and 22 of 2017 were confirmed by the
jurisdictional Sessions Court in Criminal Appeal Nos.6 and
7 of 2022 by separate Judgments and order dated
19.03.2022. Being aggrieved by the same, the petitioners
are before this Court.
4. Learned counsel for the petitioners having
reiterated the grounds urged in the petitions, submits that
Courts below were not justified in convicting the
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petitioners for the alleged offence. He submits that the
defence raised by the petitioners has not been appreciated
by the Courts below and accordingly, he prays to allow the
petitions.
5. Per contra, the learned counsel for the respondent
submits that the petitioners have not disputed the
signature found in the cheques nor they have disputed
that the cheques were drawn on the joint account of the
petitioners maintained by them in Andhra Bank, Vasavi
School Branch, Ballari. Therefore, there is a presumption
against them which is not rebutted.
6. The material on record would go to show that the
complaints were filed before the Trial Court by the
respondent after complying all statutory requirements as
provided under the NI Act, after the cheques in question
were dishonoured by the drawee bank for the reason
'funds insufficient'. The petitioners have not disputed the
signatures found in cheques in question nor they have
disputed that the cheques were drawn from the joint
account maintained by them in Andhra Bank, Vasavi
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School Branch, Ballari. It is also not in dispute that both
cheques are signed by petitioners jointly. Therefore, there
is a presumption against petitioners under Section 139 of
the NI Act. Unless the said presumption is successfully
rebutted by the petitioners, they are liable to be convicted
for the offence punishable under Section 138 of the NI Act.
7. In the present case, the petitioners had raised a
defence before the Trial Court that the cheques in question
were issued by them to one B. Mohan Murali and in turn,
the respondent/complainant had misused the same. But
the said defence has not been probabalised or proved by
them in any manner. Except raising a defence, they have
not produced any material before the Court in support of
their defence. Aforesaid B. Mohan Murali was not
examined by the petitioners before the Trial Court.
Therefore, the presumption that arose against the
petitioners in both cases stood un-rebutted and it is in this
background, the Trial Court had convicted the petitioners
for the offence punishable under Section 138 of the NI Act.
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8. The appellate Court having re-appreciated the oral
and documentary evidence available on record, has
confirmed the Judgment and order of conviction and
sentence passed by the Trial Court. The sentence imposed
by the Trial court which is confirmed by the appellate
Court also cannot be said to be harsh or excessive. Under
the circumstances, I am of the considered view that the
petitioners have not made out a good ground to interfere
with the well reasoned Judgment and order of conviction
and sentence passed by the Courts below. Accordingly, the
following :
ORDER
(i) Revision petitions are dismissed.
(ii) The amount deposited by the petitioners,
if any is permitted to be withdrawn by
the respondent/complainant.
Sd/-
JUDGE
CKK
CT:GSM
