Karnataka High Court

T Rajanna vs Mr Ravi on 11 February, 2025

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                              NC: 2025:KHC:6117
                                                         CRL.RP No. 139 of 2016




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 11TH DAY OF FEBRUARY, 2025

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         CRIMINAL REVISION PETITION NO. 139 OF 2016

                   BETWEEN:

                   1.    T. RAJANNA
                         S/O LATE THIMMARAYAPPA,
                         R/AT NAGAPPA BUILDING,
                         OPP. KMF QTRS. D.B.PURA ROAD,
                         RAJANAKUNTE, DIBBUR,
                         BANGALORE-560089.
                                                                  ...PETITIONER
                                (BY SRI. RAVINSON M., ADVOCATE)
                   AND:

                   1.    MR. RAVI
                         PROP. SWARNA JEWELS,
                         SHOP NO.65, ARUN COMPLEX,
Digitally signed         DVG ROAD, BASAVANAGUDI,
by DEVIKA M
                         BANGALORE-560065.
Location: HIGH
COURT OF                                                       ...RESPONDENT
KARNATAKA                        (BY SRI. R. SRINIVAS, ADVOCATE)

                        THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
                   CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 25.11.2015
                   PASSED BY THE LXIII ADDL. CITY CIVIL AND SESSIONS
                   JUDGE, BANGALORE (CCH-64) IN CRL.A.NO.329/2015 AND
                   CONFIRMING THE ORDER DATED 04.02.2015 PASSED IN
                   C.C.NO.32121/2011 ON THE FILE OF THE XLII A.C.M.M.,
                   BANGALORE.

                       THIS PETITION COMING ON FOR ADMITTED THIS DAY,
                   ORDER WAS MADE THEREIN AS UNDER:
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                                                  NC: 2025:KHC:6117
                                             CRL.RP No. 139 of 2016




CORAM:    HON'BLE MR. JUSTICE H.P.SANDESH


                           ORAL ORDER

1. Heard The learned counsel for revision

petitioner and also the learned counsel for the respondent.

2. This revision petition is filed against the order of

conviction and sentence passed by the Trial Court for the

offence punishable under Section 138 of N.I Act and also

against the order of confirmation passed in

Crl.A.No.329/2015.

3. The factual matrix of case of the complainant

before the Trial Court that accused and complainant are

close friends. The accused took financial assistance from

the complainant to the extent of Rs.11,50,000/- in the

month of January to March and agreed to return the

amount in the month of July 2011 along with interest and

accused issued Cheque dated 29.07.2011 to the

complainant. When the said Cheque was presented to the

bank it was dishonored with an endorsement 'Opening

Balance Insufficient' and he has issued the legal notice and

the same was served. Inspite of service of notice, the

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accused failed to reply and repay the amount and hence,

complaint was filed and the Trial Court has taken the

cognizance. The accused did not plead guilty and claims

trial. The complainant examined as PW1 and got marked

Ex.P1 to Ex.P5 and also accused was subjected to 313

statement and also he has been examined as DW1 before

the Trial Court.

4. The Trial Court having considered both oral and

documentary evidence placed on record taken note of

Cheque was issued and admitted the signature, but the

contention before the Trial Court that Cheque was given

for getting the loan in favour of the accused, but he did

not return those Cheques after he availed the loan and the

said defense was not accepted. On the other hand, the

Trial Court taken note of the evidence of PW1 particularly

Cheque, legal notice and postal receipts having served the

notice and the Trial Court convicted and sentenced the

accused. Being aggrieved by the said order, an appeal also

filed before the First Appellate Court. The First Appellate

Court also having considered the grounds urged in

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paragraph No.4 of the judgment, comes to the conclusion

that appellant/accused admitted the Cheque in question

marked at Ex.P1 belongs to his account. When he

admitted the signature, then presumption arises and the

presumption under Section 139 of N.I Act is rebuttable

and no such rebuttable evidence before the Trial Court to

accept the theory of defense of the accused. In the

defense it is contended that in the year 2006, the

complainant collected some blank signed Cheques of the

accused under the guise of securing loan from the accused

in the bank and the same were misused. In order to

substantiate the said contention, except examining

himself, nothing is placed on record before the Trial Court.

The Trial Court as well as First Appellate Court taken note

of the fact that he has availed the loan of Rs.3.35 Crores

in the Vijaya Bank in the year 2007 and there was no need

to getting the loan in favour of him by securing the loan

from any of the bank. Hence, not accepted the case of the

appellant.

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5. Being aggrieved by the concurrent finding,

present revision petition is filed. The main contention of

the counsel appearing for the revision petitioner before

this Court is that both the Courts have not accepted the

defense and specific case of the revision petitioner that

Cheques are given in the year 2007 and the same have

been misused and also it is contended that respondent did

not issue notice to the proper address of the petitioner.

The counsel would vehemently contend that both the

Courts have not considered the evidence in a proper

perspective.

6. The counsel appearing for respondent also

brought to notice of this Court the order dated 09.02.2016

wherein this Court directed to execute a indemnity bond

for a sum of Rs.12,20,000/- with one surety for likesum

for the satisfaction of the Trial Court and also the revision

petitioner undertaken to pay the same with interest 12%

p.a from the date of the Cheque till payment, if the

revision petition dismissed by this Court and hence

counsel also contend that he has to pay the interest on the

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fine amount at the rate of interest 12% p.a from

09.02.2016.

7. Having heard the learned counsel for revision

petitioner and also the learned counsel for the respondent

and also considering the grounds urged in the revision

petition as well as oral submission of the petitioner's

counsel and also the respondent's counsel, the points that

would arise for consideration of this Court are:

1) Whether the Trial Court as well as First Appellate Court committed an error in convicting and concurring that accused committed offence under Section 138 of N.I Act and whether it requires interference of this Court by exercising the revisional jurisdiction?

2) What Order?

8. Having heard the counsels for respective parties

and also on perusal of material available on record, the

very case of the complainant before the Trial Court that in

the month of January to March he had taken the amount

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of Rs.11,50,000/- and he had agreed to return the amount

in the month of July-2011 along with the interest, but he

did not pay any amount and hence, he has issued the post

dated Cheque including the interest to the tune of

Rs.11,98,246/- when the same was presented and

dishonored, the fact that notice was also issued by the

complainant. The Trial Court also taken the cognizance

after filing of the complaint and both the Courts have

relied upon the document of Ex.P1-Cheque and the same

is not disputed. Hence, the Court has to presume that

there was a transaction. In order to rebut the

presumption, the accused has to lead cogent evidence

before the Court and nothing is elicited in the cross-

examination of PW1 with regard to witness that those

Cheques are given in the year 2006 itself since he took the

specific contention that those Cheques are given to get the

loan on behalf of the accused from the bank. Both the

Courts taken note of the fact that in the year 2007 itself,

the accused borrowed the loan of Rs.3.25 Crore from the

Vijaya bank and also nothing is elicited in the cross-

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examination of PW1 to accept the defense of the revision

petitioner. Apart from that when the Cheque was issued

and admitted in the absence of any plausible defense and

preponderance of probability in favour of the petitioner,

question of exercising the revisional power does not arise.

The Court can exercise the revisional power only if finding

is not legal and the reasoning is perverse and if any order

suffers from legality and correctness only Court can

exercise revisional jurisdiction and both the Courts can

taken note of the evidence available on record, both oral

and documentary evidence. Hence, I do not find any

ground to exercise the revisional jurisdiction.

9. The counsel appearing for respondent brought

to notice of this Court the conditional order passed on

09.02.2016 to execute a indemnity bond for a sum of

Rs.12,20,000/- that is the fine amount and ordered to pay

the compensation and if not successful in the revision

petition, he shall pay the interest 12% p.a since

undertaking was given before this Court and there was no

any order to deposit the amount while suspending the

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sentence. When such order has been passed and this

Court not found any infirmity in the order of the Trial

Court, the petitioner is directed to pay the interest at 12%

p.a as undertaken on the amount of Rs.12,20,000/- vide

order dated 09.02.2016.

10. In view of the discussions made above, I pass

the following:

ORDER

i) The Revision Petition is dismissed.


      ii)      The Revision Petitioner is directed to pay
               interest at 12% p.a as undertaken and
               execute       indemnity    bond     for   sum    of