Karnataka High Court
G Venkateshwara Rao S/O Subbarao vs Muttanna Sudi S/O Mallappa on 12 January, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.RP No. 100093 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100093 OF 2021 (397)
BETWEEN:
G. VENKATESHWARA RAO S/O. SUBBARAO,
AGE: 51 YEARS, OCC. TEACHER,
R/O. C/O. THAGORE TELUGU MEDIUM,
HIGHER PRIMARY SCHOOL (REGD.),
GANDHINAGAR, TQ. SINDHANUR,
DIST. RAICHUR-584101.
...PETITIONER
(BY SRI B. C. JNANAYYASWAMI, ADVOCATE)
AND:
MUTTANNA SUDI S/O. MALLAPPA
AGE: 49 YEARS, OCC AGRICULTURIST AND KIRANI,
R/O. AGOLI, TQ. GANGAVATHI,
DIST. KOPPAL-583231.
...RESPONDENT
Digitally
VIJAYALAXMI signed by
M BHAT VIJAYALAXMI
M BHAT (BY SRI. SAJID GOODWALA, ADVOCATE FOR SRI JAGADISH
PATIL, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S.397 R/W.
401 OF CR.P.C., SEEKING TO CALL FOR THE RECORDS ON THE
FILE OF DISTRICT AND SESSIONS JUDGE AT KOPPAL IN
CRIMINAL APPEAL NO.14/2014 AND ON THE FILE OF PRL. CIVIL
JUDGE AND JMFC, AT GANGAVATHI IN C.C.NO.741/2010, PERUSE
THE SAME AND SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE PASSED BY THE DISTRICT AND SESSIONS JUDGE AT
KOPPAL IN CRIMINAL APPEAL NO.14/2014, FOR THE OFFENCE
138 OF N.I. ACT, DATED 11/03/2019 AND THE JUDGMENT OF
CONVICTION AND SENTENCE PASSED BY THE PRL. CIVIL JUDGE
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CRL.RP No. 100093 of 2021
AND JMFC, AT GANGAVATHI IN C.C.NO.741/2010, DATED
26/07/2014 AND SET THE PETITIONER AT LIBERTY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition under Section 397 read with
Section 401 of Cr.P.C. is filed with a prayer to set aside
the Judgment and order of conviction and sentence passed
by the Court of Principal Civil Judge and JMFC, Gangavathi
in Criminal Case No.741/2010 dated 26.07.2014 and the
Judgment and order dated 11.03.2019 passed in Criminal
Appeal No.14/2014 by the Court of District and Sessions
Judge, Koppal.
2. Heard the learned counsel for the parties.
3. Facts leading to filing of this revision petition
narrated briefly are, petitioner had borrowed a sum of
Rs.3,00,000/- from the complainant who was acquainted
to him and towards repayment of the said amount, he had
issued a chque bearing No.242434 dated 15.02.2010
drawn on Syndicate Bank, Sindhanoor Branch for a sum of
Rs.3,00,000/-. On presentation of the said cheque for
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realization, same was dishonoured with a shara 'funds
insufficient'. The respondent/complainant after complying
statutory requirements of the Negotiable Instruments Act,
1881 (for short, 'the N.I.Act') by issuing a legal notice to
the petitioner/accused had filed a Private Complaint before
the Court of jurisdictional Magistrate with a prayer to
convict and sentence the petitioner for the offence
punishable under Section 138 of the N.I. Act.
4. The petitioner who was tried for the offence
punishable under Section 138 of the N.I.Act by the Court
of Principal Civil Judge and JMFC, Gangavathi was
convicted for the aforesaid offence and sentenced to pay
fine of Rs.3,05,000/- and indefault of payment of fine, he
was directed to undergo simple imprisonment for a period
of six months. The said Judgment and order of conviction
and sentence passed by the Trial Court was confirmed in
Criminal Appeal No.14/2014 by the Court of jurisdictional
Sessions Judge on 11.03.2019. Being aggrieved by the
same, the petitioner/accused is before this Court.
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5. Learned counsel for the petitioner submits that the
Courts below have failed to appreciate the oral and
documentary evidence available on record. He submits
that the petitioner has not borrowed any amount from the
complainant and cheque which was issued by the
petitioner to his friend has been misused by him. He
accordingly prays to allow the revision petition.
6. Per Contra, the learned counsel for the respondent
submits that the petitioner has not disputed the signature
found on the cheque and undisputedly the said cheque is
drawn on the account maintained by the petitioner in
Syndicate Bank at Sindhanoor Branch. The petitioner has
not rebutted the presumption that is available against him.
Therefore, Courts below have rightly convicted him for the
offence punishable under Section 138 of the N.I.Act.
Accordingly, he prays to dismiss the petition.
7. The complainant in support of his case had
examined himself as P.W.1 before the trial Court and had
got marked 07 documents as Ex.P.1 to 7. He also had
examined the Manager of Syndicate Bank, Branch
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Sindhanooor as P.W.2. The petitioner had examined
himself as D.W.1 and had got marked 04 documents as
Ex.D.1 to 4. The cheque in question which was drawn on
the account of petitioner maintained by him in Syndicate
Bank, Sindhanoor Branch was presented by the
complainant for realization and after the said cheque was
dishonoured, he had got issued a legal notice to the
petitioner as provided under the statute. The said notice
was duly served on the petitioner. The petitioner had
issued a reply to the said notice denying the transaction.
However, in the reply, it was not stated that the said
cheque was issued by the petitioner to his friend and the
same was misused by the respondent/complainant. The
signature found in the cheque is also not disputed by the
petitioner. Under the circumstances, there is a
presumption available against him under Section 139 of
N.I.Act and unless he successfully rebuts the said
presumption, he is liable to be convicted for the offence
punishable under Section 138 of the N.I.Act.
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8. The complainant during the course of his
deposition has stated that he had sold an immovable
property about 01 year prior to he lending money to the
petitioner and money which was in his possession after he
had sold the immoveable property was paid by him to the
petitioner. Therefore, he has given an explanation with
regard to the source of money for making payment to the
petitioner. Petitioner has not elicited anything from the
mouth of the complainant so as to disbelieve his case.
Except a suggestion made by the petitioner during the
course of cross-examination of the complainant, there is
absolutely no other material to show that the cheque in
question was handed over by the petitioner to his friend
Nagaprasad. In addition to the oral evidence, the
complainant has also produced Ex.P.1 to 7 in support of
his case and he also had examined P.W.2, who is the
Manager of Syndicate Bank, Sindhanoor Branch. Petitioner
who had taken a defence that the cheque in question was
issued to Nagaprasad for payment of Rs.34,000/- has
failed to probabolise his defence. He has not made any
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attempts to examine the said Nagaprasad before the
Court. The Trial Court therefore was fully justified in
convicting the petitioner for the offence punishable under
Section 138 of the N.I. Act. Even the sentence imposed on
the petitioner cannot be said to be harsh. The appellate
Court after re-appreciating the oral and documentary
evidence available on record has confirmed the Judgment
and order passed by the Trial Court. I do not find any good
reason to interfere with the same. The revision petition
lacks merits. Accordingly, same is dismissed.
9. The amount deposited by the petitioner either
before the Trial Court or before the appellate Court is
permitted to be withdrawn by the respondent/
complainant.
Sd/-
JUDGE
CKK
