Karnataka High Court
Sri Karthik Kumar K vs Sri Gangaiah on 1 March, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:9051
CRL.RP No. 239 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 239 OF 2020
BETWEEN:
1. SRI KARTHIK KUMAR K.,
S/O KRISHNA MURTHY,
AGED ABOUT 37 YEARS,
RESIDING AT NO.NA911,
BEL COLONY,
NAGALAND CIRCLE,
JALAHALLI,
BENGALURU-560013.
...PETITIONER
(BY SRI. SHANKAR H.S.,ADVOCATE)
AND:
Digitally signed 1. SRI GANGAIAH
by SHARANYA T S/OF RAMANNA
Location: HIGH
COURT OF AGED ABOUT 37 YEARS,
KARNATAKA RESIDING AT NO.281,
BEL COLONY, JALAHALLI,
BENGALURU-560013.
...RESPONDENT
(BY SRI S.G.SWAMY, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 27.09.2018 PASSED IN C.C.NO.23074/2016 ON THE
FILE OF THE JUDGE COURT OF SMALL CAUSES AND XXVI
A.C.M.M., AT BENGALURU AND THE JUDGMENT AND ORDER OF
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CRL.RP No. 239 of 2020
IN CRL.A.NO.2155/2018 DATED 19.12.2019 ON THE FILE OF
THE COURT OF LXVII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE BENGALURU CITY (CCH-68) AND FURTHER BE PLEASED
TO ACQUIT THE PETITIONER BY ALLOWING THIS REVISION
PETITION.
THIS PETITION, COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for revision petitioner and
also the learned counsel for the respondent.
2. The factual matrix of the case of complainant
that both complainant and accused are known to each
other and both are friends since past several years. The
accused approached the hand loan of Rs.2,00,000/- during
March-2014, promising to repay the same within six
months. It is contended that after lapse of stipulated time,
the accused failed to return the same as promised, but the
accused issued a cheque bearing No.924632 dated
30.06.2016 for a sum of Rs.80,000/- drawn on State Bank
of India, BEL Factory Campus branch, Jalahalli, Bengaluru.
As per the instructions of accused, complainant presented
the said Cheque for encashment through his banker, State
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Bank of India, BEL factory campus, Jalahalli, Bengaluru
dated 01.07.2016, which was bounced and returned
unpaid with an endorsement that " funds insufficient "
vide bank memo dated 02.07.2016. Thereafter he has
issued the legal notice through RPAD on 30.07.2016, the
same was served and no reply was given. Hence, the
cause of action arisen for filing of private complaint. The
accused also appeared before the Trial Court and also
denied the allegations made in the complaint. The
complainant himself examined as PW1 and got marked
documents Ex.P1 to Ex.P5. On the other hand, defendant
examined himself as DW1 and got marked Ex.D1 to Ex.D3,
but not examined any other witnesses.
3. The Trial Court having considered both oral and
documentary evidence available on record, considered the
evidence of PW1 and also the documents which have been
produced as Ex.P1 to Ex.P5 and taken note of answer
elicited from the mouth of PW1. The Trial Court in
paragraph No.11 comes to the conclusion that nothing is
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elicited in the cross-examination of PW1 that there is no
existence of legally recoverable debt payable by the
accused to the complainant. The Trial Court also taken
note of the defense taken by the accused/revision
petitioner that he has not availed any loan from the
complainant, but he has given the Cheque to one
Virupaksha and he has filed the false complaint. The very
factum of issuance of Cheque is admitted by the accused.
There is a presumption under Section 138 of Negotiable
Instrument Act and also the presumption was not
rebutted. Even though took the contention that they gave
Cheque to the Virupaksha and said Virupaksha has also
not been examined before the Trial Court, the same is also
taken note of by the Trial Court in paragraph No.16 that
the accused has not taken any legal action against the
complainant, though he contend that Cheque was given to
the Virupaksha. Even after the receipt of service of notice.
Even not given any reply to the said notice. Even he is
assuming that he has given the Cheque in favour of
Virupaksha, when the notice was issued to him, he ought
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to have given reply contending that he has given the
Cheque in favour of Virupaksha, not in favour of the
complainant. No such reply was also given. All these facts
are taken note of by the Trial Court. The appellate Court
also on re-appreciation of both oral and documentary
evidence available on record, considered the evidence of
PW1 and also the documentary evidence of Ex.P1 to Ex.P5
and the document of Ex.D1 to Ex.D3. No doubt certified
copy of the order passed in other connected matters are
also produced before the Court. The appellate Court
having taken note of the document of Cheque which is
admitted and also the defense which has been taken
before the Trial Court and comes to the conclusion that in
order to rebut the evidence of complainant nothing is
placed on record except marking of document Ex.D1 to
Ex.D3.
4. The counsel appearing for the appellant would
vehemently contend that the complainant had misused the
Cheque which was given to the Virupaksha. In order to
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substantiate this contention no material is placed before
the Court. The Court below also considered the evidence
available on record. The very contention that both the
Courts below fail to appreciate the fact that complainant is
a stranger to the accused and there was no any
transaction cannot be accepted.
5. The counsel appearing for the respondent also
would contend that an amount of Rs.2,00,000/- was
received, inturn he has issued two Cheques and both the
Cheques are bounced and hence he had initiated
proceedings in respect of other Cheque is concerned and
he was convicted in other case also. No appeal is filed
against that conviction.
6. Having considered the grounds urged in the
revision petition and also the contention of the respondent
which they have addressed before this Court and this
Court can review the order of the Trial Court if any the
judgment of conviction and sentence suffers from any
legality and its correctness and material available on
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record, particularly the Cheque was issued and also the
endorsement was issued as funds insufficient and notice
was also issued. No reply was given and only during the
cross-examination defense was taken that the Cheque was
given in favour of Virupaksha and not to the complainant.
In order to accept his contention also no material is placed
on record. Hence, I do not find any illegality committed by
the Trial Court and also the appellate Court in appreciating
both oral and documentary evidence available on record.
The judgment of the Courts below not suffers from any
legality and its correctness.
7. In view of the discussions made above, I pass
the following:
ORDER
The Criminal Revision Petition is dismissed.
Sd/-
JUDGE
RHS
