Karnataka High Court
A S Prashantha vs Yogesha on 24 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:8096
CRL.RP No. 1333 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.1333 OF 2024
BETWEEN:
1. A S PRASHANTHA,
S/O CHANDRAIAH,
AGED ABOUT 40 YEARS,
R/AT KSRTC UNIT NO.1,
BADGE NO. 5943,
HASSAN 573 201.
...PETITIONER
(BY SRI. THUSHANATH C V.,ADVOCATE)
AND:
1. YOGESHA,
S/O RAMEGOWDA,
AGED ABOUT 53 YEARS,
Digitally signed
by DEVIKA M R/AT CHINNU CHINDU NILAYA,
NO.185, 2ND STAGE,
Location: HIGH
COURT OF VIJAYANAGARA EXTENSION,
KARNATAKA HASSAN 573 201.
...RESPONDENT
(BY SRI. KUMARA K G.,ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.PC (FILED U/S 438 R/W 442 BNNS) PRAYING TO ALLOW
THIS CRIMINAL REVISION PETITION BY SETTING ASIDE THE
JUDGMENT DATED 29/11/2022 PASSED IN CC NO.1750/2019
ON THE FILE OF THE HONBLE VI ADDL. CIVIL JUDGE AND JMFC,
HASSAN AND CONFIRMED BY THE V ADDL. DISTRICT AND
SESSIONS COURT AT HASSAN IN CRL. APPEAL NO.51/2023
JUDGMENT DATED 2/8/2024 AND ACQUIT THE PETITIONER BY
ALLOWING THIS REVISION PETITION.
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CRL.RP No. 1333 of 2024
THIS PETITION, COMING ON FOR ADMISSON, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL ORDER
Heard the learned counsel for the petitioner. This Court
had issued notice against the respondent and the respondent is
represented through the counsel and the learned counsel for the
respondent is absent.
2. The factual matrix of the case of the
respondent/complainant before the Trial Court is that the
accused approached the complainant for loan since both of them
are known to each other. On 18.12.2018, the complainant
advanced an amount of Rs.2,50,000/- and the accused
undertook to repay the said amount within three months. On
the same day, the accused has issued the subject matter of the
cheque dated 11.03.2019 and when the said cheque was
presented, the same was returned with an endorsement
"insufficient funds". Immediately the complainant had caused
issuance of legal notice and the same was not claimed by the
accused. Hence, he filed a complaint and cognizance was taken
and the accused appeared and did not plead guilty. The
complainant examined himself as P.W.1 and got marked the
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documents at Exs.P.1 to 5(a). The accused did not choose to
lead any evidence. The Trial Court having taken note of the
complaint and also the evidence of P.W.1, comes to the
conclusion that Ex.P.1 cheque is admitted. The accused made
the payment of Rs.50,000/-. The Trial Court having taken note
of the payment of Rs.50,000/- by the accused to the
complainant, reduced the fine amount to Rs.2,05,000/- after
deducting Rs.50,000/- and there is a reference to that effect in
the order itself. The accused did not lead any rebuttal evidence
and hence the Trial Court convicted and sentenced him to pay
the amount.
3. The said order was challenged before the Appellate
Court in Crl.A.No.51/2023. The Appellate Court on re-assessing
the material on record, in paragraph No.9 taken note of the
documents and no rebuttal evidence and in paragraph No.10
taken note of the payment of Rs.50,000/- and confirmed the
order of the Trial Court.
4. Being aggrieved by the said conviction and sentence
and confirmation, the present revision petition is filed before this
Court.
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5. The main contention of the learned counsel for the
petitioner before this Court is that there is no proper service of
notice. Having perused the postal cover, which is marked as
Ex.P.5 and 5(a), the address is mentioned that he is a driver
working in KSRTC and even badge number was given and
intimation was given on 5 days and the petitioner did not claim
the same. Hence, service of notice was held sufficient. The
very contention of the learned counsel for the petitioner that
there is no proper service of notice cannot be accepted.
6. The other ground urged before this Court that the
place of advance is not mentioned, and the fact that he
appeared before the Trial Court and made the payment of
Rs.50,000/- as part payment, is not in dispute. And now, he
cannot contend that the place is not mentioned regarding
payment is concerned. Once he has admitted the payment and
made part payment before the Trial Court, it is not contended
before the revisional court. It is also important to note that the
counsel brought to the notice of this Court the correction made
in the legal notice for repayment, and it was typed as guarantor,
and the same was striked out and mentioned as for repayment.
The said contention also cannot be accepted when the legal
notice was marked, and the same is correct for repayment. The
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case of the complainant throughout is having received the
money and issued the subject matter of the cheque, and when
the same was presented and the same was dishonoured.
7. When such being the material and also made the
part payment, now cannot contend that the same is corrected in
the legal notice for repayment. The accused has not cross-
examined the PW.1 nor led any defense evidence before the trial
Court. When such being the case, the petitioner cannot find fault
with the reasoning of the trial court since having made the part
payment before the trial court to the tune of Rs.50,000/-.
8. The counsel appearing for the petitioner also brought
to the notice of this court that, in the Appellate Court, it was
settled for Rs.1,20,000/- and also brought to the notice of this
Court that in the Appellate Court records it is mentioned as
settled for 1,20,000/-. But on perusal of the memo, no such
order was passed by the Appellate Court and also, on perusal of
the memo, it is noticed that it is only signed by the complainant
advocate and the respondent advocate, but the parties have not
signed the same. When such being the case, this Court also
cannot bind the parties unless the parties have signed the same.
Hence, on these grounds, this Court cannot interfere with the
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finding of the trial Court as well as the Appellate Court, as there
is no rebuttal evidence under Section 139 of N.I Act. It is a
settled law that presumption under Section 139 of N.I Act is a
rebuttal presumption. The complainant produced the cheque and
got marked the documents, and also, when the cheque was
presented, the same was returned with an endorsement. Hence,
without any probable defence as well as the preponderance of
probabilities, the question of accepting the grounds urged by the
revision petitioner cannot be accepted. Hence, I do not find any
grounds to admit and consider the matter on merits.
9. In view of the discussions made above, I pass the
following:
ORDER
The Criminal Revision Petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD,SKS
