Karnataka High Court
Rajkumar vs Rajashekhar @ Raju on 3 February, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.RP No. 200052 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 200052 OF 2023
(397(Cr.PC)/438(BNSS))
BETWEEN:
RAJKUMAR S/O NAGASHETTY GADGIKAR,
AGE: 53 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O. VILLAGE GADAGI NOW RESIDING AT
SHIVANAGAR, NORTH-BIDAR,
...PETITIONER
(BY SRI K. M. GHATE, ADVOCATE)
AND:
Digitally signed RAJASHEKHAR @ RAJU
by S/O LATE SHIVARAM BADIGERU,
SHIVAKUMAR
HIREMATH AGE ABOUT 48 YEARS, OCC: LIGHTING SHOP,
Location: HIGH R/O. H.NO.9-4-22 TO 9-4-27, KHAJI COLONY,
COURT OF GANDHI GUNJ ROAD, BIDAR-585401.
KARNATAKA
...RESPONDENT
(BY SRI S.S. SAJJANSHETTY, ADVOCATE)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
PRAYING TO CALL FOR THE RECORDS OF CRIMINAL APPEAL
NO.15/2021 ON THE FILE OF HON'BLE PRINCIPAL DISTRICT
AND SESSIONS JUDGE, BIDAR, PLEASED TO ALLOW THE
APPEAL AND SET ASIDE THE JUDGMENT OF DISMISSAL OF
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CRL.RP No. 200052 of 2023
APPEAL UNDER SECTION 374 (3) (2) (C) OF CR.P.C. ON DATED
02.03.2023, AND CALL FOR THE RECORDS OF C.C.NO.
648/2011 ON THE FILE OF HON'BLE PRINCIPAL CIVIL JUDGE
AND JMFC, BIDAR AND THEREBY SET ASIDE THE ORDER
DATED 24.02.2021 AND THEREBY PLEASED TO SET FREE THE
REVISION PETITIONER / APPELLANT FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 AND 142 OF THE N.I. ACT.
THIS PETITION, COMING ON FOR ARGUMENTS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. This Criminal Revision Petition under Section 397 read
with Section 401 of Cr.P.C. is filed by accused assailing the
judgment and order of conviction and sentence dated
24.02.2021 in CC No.648/2011 passed by the Court of Principal
Civil Judge and JMFC, Bidar and the judgment and order dated
02.03.2023 in Crl.A.No.15/2021 passed by the Court of
Principal District and Sessions Judge, Bidar.
2. Heard the learned counsel for the parties.
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3. Respondent herein had initiated proceedings against the
petitioner before the Trial Court in CC No.648/2011 for the
offence punishable under Section 138 of the N. I. Act
contenting that petitioner had borrowed a hand loan of Rs.3
lakhs and towards repayment of the said amount, he had
issued cheque bearing No.395955 dated 01.09.2018 drawn on
Corporation Bank, Bidar, in his favour. When the said cheque
was presented for realization, the drawee bank had returned
the said cheque with endorsement 'account freezed'.
Thereafter, a legal notice was got issued on behalf of the
respondent to the petitioner which was served on 31.12.2008.
Petitioner had got issued a reply dated 05.01.2009 refusing to
pay the amount covered under the cheque in question.
Therefore, respondent had approached the jurisdictional Court
and had filed a private complaint against the petitioner for the
offence punishable under Section 138 of the N. I. Act. Since the
petitioner had pleaded not guilty in the said proceedings, to
substantiate his case, respondent had examined himself as
PW1 and got marked 10 documents as Ex.P1 to P10. On behalf
of the defence, petitioner got examined himself as DW1 and
one more witness as DW2 and got marked one document as
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Ex.D1. The Trial Court after hearing arguments addressed on
both sides, convicted the petitioner for the offence punishable
under Section 138 of the N. I. Act vide the impugned judgment
and order of conviction and sentence dated 24.02.2021 passed
in CC No.648/2011 and sentenced him to pay fine of
Rs.4,25,000/- 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 was
unsuccessfully challenged by the petitioner in Crl.A.No.15/2021
before the Principal District and Sessions Judge, Bidar, and
therefore, he is before this Court.
4. Learned counsel for the petitioner submits that there was
no transaction between petitioner and the respondent. The
cheque in question was issued as a security on behalf of one
Sri. Jagadish, who had filed O.S.No.81/2003 and in the said
suit, respondent and his mother were defendants. The
proposed settlement in O.S.No.81/2003 had failed and the
cheque in question which was issued during the course of
negotiation for settlement has been misused by the
respondent. The Trial Court and the Appellate Court have failed
to appreciate the defence put forward on behalf of the
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petitioner have erred in convicting him. Accordingly, he prays
to allow the petition.
5. Per contra, learned counsel for the respondent has
argued in support of the impugned judgment and order of
conviction and sentence and submits that two Courts have
concurrently held against the petitioner. Petitioner has not
probabalised his defence and therefore, the Trial Court and the
Appellate Court were justified in convicting him. Accordingly, he
prays to dismiss the petition.
6. It is the specific case of the respondent/complainant that
petitioner had borrowed a sum of Rs.3 lakhs from him and
towards repayment of the said amount, petitioner had issued
the cheque in question in his favour and on presentation for
realization the said cheque was dishonoured. The contents of
the cheque and the signature found on the cheque is not in
dispute. It is also not in dispute that the cheque in question is
drawn on the account of the petitioner maintained by him in
Corporation Bank, Bidar Branch. Therefore, a presumption
arises as against petitioner under Section 139 of N. I. Act and
unless the same is rebutted by putting up a probable defence,
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petitioner is liable to be convicted for the offence punishable
under Section 138 of the N. I. Act. In the present case,
respondent has examined himself as PW1 and got marked 10
documents as Ex.P1 to P10 in support of his case. Ex.P1 is the
cheque in question and Ex.P1(a) is the signature of the
petitioner on the said cheque. Ex.P5 is the cheque return memo
and Ex.P7 is the demand notice. Ex.P10 is the reply notice got
issued on behalf of the petitioner. Private complaint has been
filed in the present case after complying the statutory
requirements and as stated earlier, a presumption under
Section 139 of the N. I. Act does arise against the petitioner in
the present case. Unless he puts up a probable defence
rebutting the presumption available against him, he is liable to
be held guilty for the alleged offence.
7. Though the petitioner has put forward a defence that the
cheque in question was issued as a security during the course
of negotiation for compromise in O.S.No.81/2023 on behalf of
Jagadish, who was plaintiff in O.S.No.81/2023, to the
respondent herein, who is defendant No.2 in O.S.No.81/2023,
he has failed to probabalise the said defence by examining the
material witnesses and also producing necessary documents in
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support of his defence. According to the petitioner, the cheque
in question was handed over by him to DW2, who is an
advocate who had negotiated on behalf of the respondent for
settlement in O.S.No.81/2023. The said cheque in question
allegedly was issued as a security on behalf of the Jagadish
who is the plaintiff in O.S.No.81/2023. Though the Trial Court
has given multiple opportunities to the petitioner to examine
the aforesaid Jagadish as a witness in the present case, the
petitioner has failed to examine Jagadish as a witness in the
present case who would have been the best witness to speak
about the defence put forward by the petitioner.
8. According to the petitioner, he had entered into an
Agreement for Sale with the aforesaid Jagadish and therefore,
he had stood as a guarantee on behalf of Jagadish and issued
the cheque in question during the course of negotiation in
O.S.No.81/2003. A copy of the alleged agreement said to have
been executed between Jagadish and the petitioner herein
dated 23.04.2003 was produced before the Trial Court by the
petitioner. In the said agreement, it is mentioned that
possession of the property which is the subject matter of
O.S.No.81/2003 was handed over to the petitioner by Jagadish.
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Since the said agreement was not properly stamped the Trial
Court appears to have passed an order impounding the said
agreement. A perusal of the said agreement which is available
on record would go to show that said agreement is typed in a
plain paper and there is no mention about the execution of
such agreement between Jagadish and the petitioner herein in
the reply notice Ex.P10. DW2 Suresh Chandra, is the advocate
to whom the cheque in question was allegedly handed over on
behalf of the petitioner as security to the proposed compromise
in O.S.No.81/2003. This witness has admitted that he was not
appearing for any of the parties in O.S.No.81/2003. He also has
stated that after the decree was passed in O.S.No.81/2003
cheque in question, which was in his possession was handed
over by him to respondent after he got registered a criminal
case against him, but no material is produced to show that any
such criminal case was registered on the complaint of
respondent against DW2.
9. Petitioner during the course of his evidence has stated
that cheque in question was handed over by him to one
advocate known as Suresh Sinde, but the person who was
examined as DW2 is one Suresh Chandra S/o Shankarrao.
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According to the petitioner, he had entered into an Agreement
for Sale with Jagadish, who was plaintiff in O.S.No.81/2003 but
the copy of the agreement for sale dated 23.04.2003, which is
available on record would go to show that said agreement is
between one Jagannath and the petitioner and the name of
Jagadish is not found in the said agreement. The suit was
decreed much prior to DW2 handing over the cheque in
question to respondent. According to the petitioner, cheque
was issued as security during the course of negotiation for
settlement in O.S.No.81/2003. Undisputedly, the said
settlement had failed and thereafter suit was decreed. Cheque
had remained in custody of DW2 and no explanation
whatsoever is offered as to why no steps were taken to take
back the cheque from DW2 even after the decree was passed in
O.S.No.81/2003. Therefore, it is apparent that the defence put
forward on behalf of the petitioner is not probabalised by
placing necessary material before the Trial Court and
resultantly, presumption that arose against the petitioner stood
unrebutted. Under the circumstances, the Trial Court and the
Appellate Court were fully justified in convicting the petitioner
for the alleged offence. Even the sentence imposed by the Trial
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Court against the petitioner is just and reasonable. Therefore, I
am of the opinion that the revision petition lacks merit.
Accordingly, petition is dismissed.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
DN
List No.: 1 Sl No.: 39/CT:PK
