Karnataka High Court
Miss.Suvarna V.B.K.Gulve vs Mr. Muninarayana C.B on 14 November, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 972 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.972 OF 2018
BETWEEN:
MISS. SUVARNA V.B.K. GULVE
D/O. LATE V.B. GULVE
AGED ABOUT 58 YEARS
RESIDING AT SY. NO.234/2
FCI ROAD, KADUGODI
BENGALURU-560 067.
...PETITIONER
(BY SMT. VEENA M., ADVOCATE)
AND:
MR. MUNINARAYANA C.B.
S/O. LATE BALAKRISHNA
AGED ABOUT 32 YEARS
RESIDING AT CHIKKABANAHALLI VILLAGE
KANNAMANGALA POST
BENGALURU EAST TALUK
BENGALURU-560 067.
Digitally ...RESPONDENT
signed by
MALATESH (BY SRI MUNINARAYANA C.B., RESPONDENT)
KC
Location: THIS CRIMINAL REVISION PETITION IS FILED UNDER
HIGH SECTION 397 R/W 401 OF THE CR.P.C PRAYING TO SET ASIDE THE
COURT OF JUDGMENT OF CONVICTION DATED 07.03.2017 PASSED BY THE I
KARNATAKA ADDITIONAL CHIEF JUDICIAL MAGISTRATE, BENGALURU IN
C.C.NO.4836/2015 AND ORDER OF DISMISSED FOR NON
PROSECUTION DATED 06.04.2018 PASSED BY THE VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU IN CRL.A.NO.39/2017 BY ALLOWING THIS CRIMINAL
REVISION PETITION AND ACQUIT THE PETITIONER FROM THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS CRIMINAL REVISION PETITION IS COMING ON FOR
ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 972 of 2018
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Smt. Veena M., learned counsel for the revision
petitioner.
2. Accused who suffered an order of conviction in
C.C.No.4836/2015 for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881( for short, 'Act')
and ordered to pay fine amount of Rs.3,55,000/- of which, a
sum of Rs.3,50,000/- was ordered to be paid as compensation
to the complainant and balance amount of Rs.5,000/- towards
defraying expenses to the State, the appeal filed by the
accused having been dismissed for non-prosecution has filed
the present revision petition.
3. Facts in the nutshell which are utmost necessary for
disposal of the revision petition are as under:
A complaint came to be lodged under Section 200 Cr.P.C.
by the complainant alleging commission of the offence
punishable under Section 138 of N.I. Act by contending that the
accused was facing financial crisis. Therefore she approached
the complainant during the month of November 2012 and
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borrowed a sum of Rs.3.00 lakhs and promised to pay the
same within a short period of time with interest at 2% per
month to the complainant. Believing the words of the accused,
the complainant lent money of Rs.3.00 lakhs and when he
approached the accused for repayment in the month of January
2015, the accused failed to make any payment, but passed on
a cheque bearing No.428017 dated 24.02.2015 in a sum of
Rs.3.00 lakhs drawn on State Bank of India, Kadugodi
Branch, Whitefield, Bengaluru, which on presentation came to
be dishonoured with an endorsement 'funds insufficient'. Legal
notice was caused by the complainant to the accused
demanding repayment issued under the cheque. Thereafter,
the complainant sought for action against the accused for the
aforesaid offence.
4. Learned trial Magistrate after completing necessary
formalities issued summons to the accused and secured her
presence. Accused appeared before the Court and plea was
recorded. The accused pleaded not guilty and therefore, the
trial was held.
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5. In order to prove the case of the complainant, the
complainant got examined herself as PW.1 and one witness by
name B.M. Devendrappa as PW.2. The complainant relied on
nine documents in support of her case, which were exhibited
and marked as Exs-P1 to P9 comprising of dishonoured cheque,
bank endorsement, copy of the legal notice, postal
acknowledgment, intimation by the postal department, copy of
ration card, pass book and certified copy of GPA.
6. Detailed cross examination of PW.1 and PW.2 did not
yield any positive material so as to disbelieve the version of the
complainant nor to dislodge the presumption available to the
complainant under Section 139 of N.I. Act.
7. Thereafter, the learned trial Magistrate recorded the
accused's statement as is contemplated under Section 313
Code of Criminal Procedure, 1973, wherein the accused has
denied all the incriminating circumstances.
8. In order to rebut the presumption available to the
complainant, the accused stepped into the witness box and
examined herself as DW.1. On behalf of the accused, six
documents were placed on record, which were exhibited and
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marked as Exs-D1 to D6, comprising of three original cheques
said to have been given by her in favour of one Vinod Kumar,
complaint copy, copy of the sworn statement and order sheet in
C.C.No.5812/2013.
9. In her cross examination, she admits that there is no
document to show that the cheques were actually issued in
favour of Vinod Kumar. She denied the suggestion that taking
advantage of death of Vinod Kumar, she has created a story
that the cheque in question, which is the subject matter of the
complaint, was given to Vinod Kumar and Vinod Kumar in turn
gave it to the complainant and same is misused, is denied by
her. She further admits that there is no document to show that
the cheque Ex-P1 was infact given to Vinod Kumar nor the loan
taken by her from Vinod Kumar, is repaid.
10. On conclusion of recording of evidence, learned trial
Magistrate heard the parties in detail and after noting that the
complainant has proved his case about his lending capacity by
virtue of Ex-P8 and the loan transaction that occurred in
November 2012, the dishonoured cheque, copy of the legal
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notice and postal acknowledgement, raised the presumption
available to the complainant under Section 139 of N.I. Act.
11. No doubt, such a presumption was a rebuttal
presumption and the learned trial Magistrate noticed that the
rebuttal evidence placed on record by the accused was not
sufficient to rebut the presumption and convicted the accused
and sentenced as aforesaid.
12. Being aggrieved by the same, the accused filed an
appeal. However, before the first appellate Court, the accused
did not properly prosecute the appeal and despite granting
sufficient time, the accused failed to make use of the
opportunity in atleast serving the complainant by paying
necessary process and therefore, the learned Judge in the first
appellate Court dismissed the appeal for non-prosecution.
13. Thereafter, the accused is before this Court in this
revision.
14. Smt. Veena M., learned counsel for the revision
petitioner reiterating the grounds urged in the revision petition
vehemently contended that the learned trial Magistrate grossly
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erred in not appreciating the material on record in proper
manner resulting in miscarriage of justice.
15. Further, she submits that the learned Judge in the
first appellate Court failed to afford necessary opportunity for
the accused-revision petitioner to take appropriate steps in
getting the complainant served and therefore, dismissal of the
appeal has resulted in miscarriage of justice and sought for
allowing the revision petition.
16. Before this Court, the respondent is served, but
remained absent.
17. Taking note of the above factual aspects of the
matter in the light of the arguments put forth by the revision
petitioner, it is crystal clear that the cheque in question is
belonging to the revision petitioner-accused and signature
found therein is that of her signature.
18. Postal acknowledgment is confronted and during the
cross examination, it has been elicited that her Sir name is
'Gulve'. Address shown in the said postal acknowledgement is
belonging to the accused. Therefore, the contention taken on
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behalf of the accused that there was no proper service of notice
cannot be countenanced.
19. Further, the cheque is dishonoured with an
endorsement 'funds insufficient'. No efforts are made by the
accused to comply the callings of notice. Therefore, the trial
Magistrate was justified in raising presumption in favour of the
complainant. Such a presumption is no doubt rebuttal
presumption. In order to rebut the same, the accused has
stepped into the witness box and deposed that the cheque in
question was actually handed over to Vinod Kumar for a
financial transaction and after repayment of entire sum of
Rs.6.00 lakhs to Vinod Kumar, cheques were all returned by
Vinod Kumar except Ex-P1. She admits that there are no
documents to show that she had repaid the entire amount to
Vinod Kumar nor any documents to show that cheques were
exchanged after repayment.
20. Further, there is no positive action taken by the
accused in respect of the alleged misappropriation against the
complainant. As admittedly, Vinod Kumar was no more, no
efforts were made by the accused to issue stop payment
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instructions to the bank, if Vinod Kumar had failed to return
Ex-P1.
21. These aspects of the matter have been rightly
appreciated by learned trial Magistrate while recording the
order of conviction.
22. For the reasons best known to the accused, the
appeal filed by the accused before the first appellate Court was
not properly pursued by the accused. Order sheet of the first
appellate Court depicts that the accused was not at all
interested in prosecuting the appeal diligently.
23. Therefore, the contentions urged on behalf of the
revision petitioner that there was no proper opportunity that
was granted to the accused to pursue the appeal in proper
manner cannot be countenanced in law.
24. Taking note of the above aspects of the matter, this
Court is of the considered opinion that the grounds urged in the
revision petition are hardly sufficient to admit the revision
petition for further consideration.
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25. Accordingly, the following:
ORDER
i. Grounds urged in the Criminal revision
petition is meritless. Accordingly,
admission declined.
ii. Consequently, the revision petition is
dismissed.
Sd/-
(V SRISHANANDA)
JUDGE
MN
