Karnataka High Court
Sri Rakesh Kumar Gaur vs M/S Fly Air Tours And Travels on 29 May, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:18176
CRL.RP No. 150 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 150 OF 2021
BETWEEN:
SRI. RAKESH KUMAR GAUR,
S/O KAILASH CHANDRA GAUR,
AGED ABOUT 45 YEARS,
RESIDING AT OKYARD APARTMENT,
C-7/3, 38TH CROSS, EAST END ROAD,
BANGALORE - 560 069.
ALSO AT:
NO.390, 42ND CROSS,
7TH MAIN, 5TH BLOCK,
JAYANAGAR, BANGALORE - 560 041.
...PETITIONER
(BY SRI. JAIRAJ G, ADVOCATE)
Digitally AND:
signed by
MALATESH
KC M/S. FLY AIR TOURS AND TRAVELS,
Location: HAVING OFFICE AT NO.69, MM ROAD,
HIGH
COURT OF FRAZER TOWN, BANGALORE - 560 005,
KARNATAKA
REPRESENTED BY ITS PROPRIETOR
MR. SYED ASHFAQ AHMED,
S/O SYED SHUJAUDDIN HASSAN,
AGED ABOUT 47 YEARS.
...RESPONDENT
(BY SRI. ARJUN REGO, ADVOCATE)
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NC: 2024:KHC:18176
CRL.RP No. 150 of 2021
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE
LEARNED LVII A.C.M.M., MAYO HALL BENGALURU IN
CRL.CASE.NO.54490/2017 DATED 05.10.2018 AND JUDGMENT
PASSED BY THE HONBLE LXXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, MAYO HALL, BENGALURU IN
CRL.A.NO.25187/2018 DATED 02.01.2021 AND ACQUIT THE
PETITIONER.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Rajanna learned counsel for Sri. Jairaj, learned
counsel for petitioner and Sri. Arjun Rego for parties. Present
revision petition is filed challenging the order of conviction
passed in C.C.No.54490/2017 confirmed in
Crl.A.No.25187/2018 convicting the revision petitioner for the
offence punishable under Section 138 of the NI Act.
2. Facts of the case in brief are as under: Accused
issued on a cheque in a sum of Rs.9,50,000/- in respect of the
amount borrowed by him by the complainant, which on
presentation came to be dishounoured. Legal notice was issued
and same is served, but there is no compliance or reply to the
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same. Accordingly, action was initiated for the offence
punishable under Section 138 of the NI Act. presence of
accused was secured and plea was recorded. Accused pleaded
not guilty. Therefore, Trial was held.
3. In order to prove the case of the complainant, he
got examined himself as PW.1 and placed on record 9
documents which were executed and marked as Ex.P1 to P9,
comprising of two dishonoured cheques, bank returned memos,
office copy of the legal notice, postal acknowledgment and
returned postal covers.
4. Accused took time to cross examine PW.1, but did
not subsequently appear before the Court as such there is no
cross examination. Further, there is no defence evidence.
Accordingly, Trial Magistrate closed the side of the accused and
passed an order of conviction against the accused for the
offence punishable under Section 138 of the NI Act and
imposed the fine of Rs.12,93,000/-.
5. Being aggrieved by the same, accused preferred an
appeal before the District Court in Crl.A.No.25187/2018. The
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said appeal was also dismissed on contest. Being aggrieved by
the same, accused is before this Court in this revision petition.
6. Reiterating the grounds urged in the revision
petition, Sri. Rajanna representing the counsel for petitioner
vehemently contended that the concept of fair trial is absent in
the case on hand in as much as there is no sufficient
opportunity to accused to cross examine the complainant and
therefore, both the judgments have to be set aside and matter
needs to be remanded to the Trial Court.
7. Per contra, Sri. Arjun Rego contended that despite
granting sufficient opportunities, accused did not reply the
same and or did not comply the interim order passed by the
First Appellate Court and therefore, there is no scope for
remanding the matter to the Trial Court in as such as the initial
burden has been discharged by the complainant for taking the
benefit of the presumption available under Section 139 of the
NI Act and accused failed to prove his case by placing
circumstantial evidence and therefore sought for the dismissal
of the revision petition.
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8. Having heard the parties this Court perused the
material available on record meticulously. On such perusal, it is
crystal clear that the accused did not comply the interim order
granted by the First Appellate Court. Further, the order sheet
discloses that sufficient opportunity was granted to the accused
before the Trial Magistrate to cross examine the complainant
and only when the accused failed to utilize the said opportunity,
the Trial Court has proceeded with the case.
9. Under such circumstances, hardly there is a scope
for the petitioner to contend that the principles of natural
justice and fair trial has not been complied in the case on hand.
10. Further, initial burden have been discharged by the
complainant, it is for the accused to rebut the presumption
available to the complainant in as much as there is no dispute
that cheques are dishonored and the signature found in the
cheques are that of the accused and cheques have been
handed over by the accused to the complainant.
11. Even the grounds urged in the revision petition,
what is the defence that is available to the accused so as to
rebut the presumption is not spelt out.
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12. Under such circumstances, hardly there is scope to
admit the revision petition and pass further orders.
13. Accordingly, the following:
ORDER
i) Admission is declined.
ii) Revision petition is dismissed.
Sd/-
JUDGE
LDC
CT: BHK
