Karnataka High Court
Sri. G. K. Kempegowda vs Sri. D. Nagesh on 10 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:975
CRL.RP No. 1161 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1161 OF 2024
BETWEEN:
SRI. G. K. KEMPEGOWDA
S/O GADDANA KEMPEGOWDA,
AGED ABOUT 77 YEARS,
R/AT MOTHAHALLI VILLAGE,
KOTHATHI HOBLI,
MANDYA TALUK-571 478.
...PETITIONER
(BY SRI. K R NAGARAJA, ADVOCATE)
AND:
SRI. D. NAGESH
Digitally signed
by DEVIKA M S/O DEVAIAH,
Location: HIGH AGED ABOUT 42 YEARS,
COURT OF R/AT RAMAMANDIRA ROAD,
KARNATAKA
1ST CROSS, HOSAHALLI,
MANDYA CITY-571 606.
...RESPONDENT
(BY SRI. RAJA L., ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W SECTION 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGEMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 29.12.2021 IN CC.NO.163/2021
ON THE FILE OF THE COURT OF THE JMFC-II, MANDYA/TRIAL
COURT AND JUDGEMENT DATED 25.07.2024 IN
CRL.A.NO.6/2022 ON THE FILE OF COURT OF THE II
-2-
NC: 2025:KHC:975
CRL.RP No. 1161 of 2024
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
MANDYA/APPELLATE COURT; ACQUIT ACCUSED FOR THE
OFFENCE U/S 138 OF NI ACT IN CC.NO. 163/2021 ON THE FILE
OF THE COURT OF THE JMFC-II, MANDYA/TRIAL COURT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL ORDER
1. This matter is listed for admission and heard
the learned counsel for revision petitioner and also the
learned counsel for respondent. The records are received
from the Trial Court and also the First Appellate Court and
with the consent of both revision petitioner's counsel and
also the counsel for respondent, matter is heard.
2. This revision petition is filed against the
concurrent finding of Trial Court as well as the First
Appellate Court. The Trial Court ordered to pay
compensation of Rs.1,75,000/-. In default to pay the fine,
the accused shall undergo further simple imprisonment for
a period of three months and out of that Rs.5,000/- has to
be deprived in favour of the State and remaining amount
of Rs.1,70,000/- shall be paid to the complainant. The
NC: 2025:KHC:975
Trial Court having considered the material on record,
particularly Ex.P1 to Ex.P7 accepted the case of
complainant for having advanced an amount of
Rs.1,50,000/- and Cheque was presented and the same
was dishonored. The notice was issued to the very same
address in which the petitioner is residing and the same
was refused and Ex.P5(a) endorsement is with regard to
the refusal and also taken note of judgment of the Apex
Court in case of Rangappa V/s Sri.Mohan reported in
(2010) 11 SCC 441 regarding presumption is concerned
as presumption is rebuttable in nature under Section 139
of N.I Act and the initial burden is on the complainant and
also taking into note of the said judgment comes to the
conclusion that Cheque is admitted and though denied the
signature in the cross-examination of RW1, but not sent
the same to the FSL and hence accepted the case and not
accepted the case of the accused/revision petitioner and
convicted and sentenced. Being aggrieved by the same, an
appeal is filed in Crl.A.No.6/2022. The First Appellate
Court on re-appreciation of material available on record,
NC: 2025:KHC:975
comes to the conclusion that admittedly the Cheque in
issue belongs to the account pertaining to the accused, but
he had taken the contention that Cheque was given to the
chit transaction as security and except self serving
statement, there is nothing on record to say that the
complainant was doing chit transaction as contended by
the accused, but accused contended that the chit was for
Rs.50,000/- and he has repaid the Cheque amount, but
accused not produced any single material on record to say
first of all the complainant was doing the chit transaction
and also though DW1 deposed before the Court and
admitted in the cross-examination that one Kempanna and
Ninganna were members of chit and he had not lead any
evidence of any member of the said chit transaction and
hence not accepted the contention of revision petitioner
and confirmed the judgment of the Trial Court.
3. Now, the revision petitioner's counsel
contended that the respondent/complainant was not
having any financial capacity and with regard to the
NC: 2025:KHC:975
financial capacity is concerned, he has not placed any
document before the Court to show that he was having
financial capacity. The counsel would vehemently contend
that even assuming that the said Cheque is issued and
belongs to the revision petitioner and not established any
enforceable debt. The counsel also would contend that the
when the Cheque was issued and the same is in respect of
chit transaction is concerned. The Trial Court and First
Appellate Court committed an error in convicting and
sentencing. The counsel also would vehemently contend
that there was no any license even to do the said chit
business and also contend that the notice was not duly
served. The counsel contend that his village is Mothahalli
village and in the address it is mentioned as Muthahalli
and also counsel contend that the Cheque was issued and
the same is blank Cheque. The counsel would vehemently
contend that the Cheque issued on 28.01.2012 and the
Cheque dated 02.05.2012 which is post dated Cheque and
the same was presented in the month of May-2012 and
the bank issued on 02.05.2012. All these factors have not
NC: 2025:KHC:975
been taken note of by the Trial Court and First Appellate
Court committed an error in convicting and confirming the
revision petitioner and hence, it requires interference by
exercising the revision jurisdiction.
4. Per Contra, the counsel appearing for the
respondent would vehemently contend that issuance of
Cheque is admitted and only contention is taken that
Cheque was issued in respect of chit transaction. No
material is placed with regard to the chit transaction is
concerned. The counsel would vehemently contend that
when notice was issued, he has refused and postal
endorsement in Ex.P5 is very clear that postman visited on
several occasions and ultimately he has refused the receipt
of notice and now cannot contend that no notice was
served on him. The counsel also would vehemently
contend that when the defense was taken that he was
running a chit transaction, no documents are placed before
the Court to show that the respondent/complainant was
running a chit. The counsel would vehemently contend
NC: 2025:KHC:975
that when he did not repay the amount, the Cheque was
presented and the same was dishonored and thereafter
only the complaint was filed before the Court. The amount
is only Rs.1,50,000/- was advanced and even in the
cross-examination of DW1, suggestion was made that he
was doing dairy business and also photographs are
confronted to him i.e., Ex.P6 and Ex.P7 and the same has
been admitted by the DW1 to show that he was having the
cow and also supplying the milk to the dairy as well and
his case is also that he sold the cow and bullock and out of
the said amount, he paid the amount of Rs.1,50,000/-,
when such evidence is placed before the Court and also
admittedly photo of Ex.P6 and Ex.P7, now cannot contend
that he was not having any financial capacity to pay the
amount.
5. The counsel would vehemently contend that the
Trial Court as well as the First Appellate Court on
considering both oral and documentary evidence placed on
record, rightly comes to the conclusion that there is a
NC: 2025:KHC:975
presumption under Section 139 of N.I Act and the same
has not been rebutted by leading any preponderance of
probabilities and hence it does not requires any
interference.
6. Having heard the learned counsel for revision
petitioner and also the learned counsel for the respondent
and also the contention of the revision petitioner's counsel
that he had cited several judgments of this Court in
revision petition itself with regard to giving of blank
Cheque and the same is in different hand writing, the
Court has to take note of the said material on record.
Inspite of several citations are relied before the Trial Court
and the same has not been considered by the Trial Court
and First Appellate Court and it requires interference.
7. Having heard the submissions of revision
petitioner's counsel and also the counsel appearing for the
respondent and also looking into the material on record,
the point would arise before this Court is as under:
NC: 2025:KHC:975
1) Whether the revision petitioner has made
out the case to exercise the revisional
jurisdiction and whether it requires
interference?
2) What Order?
8. Having heard the learned counsel for revision
petitioner and also the learned counsel for respondent and
also on perusal of pleadings before the Trial Court when
the complaint is filed under Section 200 of Cr.P.C invoking
Section 138 of Negotiable Instruments Act, specific
allegation is made against the revision petitioner herein
that the complainant and accused are well known to each
other since for sometimes. On the basis of the
acquaintance and friendship, the accused for his legal
necessity, for discharge of his hand loans and for his
household expenses, borrowed a sum of Rs.1,20,000/- to
the complainant on 28.01.2012 agreeing to repay the said
loan amount to the complainant together with interest of
2% per annum within a period of 3 months. It is also
- 10 -
NC: 2025:KHC:975
pleaded in the complaint that he had issued a post dated
02.05.2012 Cheque in favour of the complainant for
Rs.1,50,000/- and when the same was presented, the
Cheque was dishonored and notice was issued and notice
was refused and hence, filed the complaint. The Trial Court
also taking into note of the complaint and also material
took the cognizance and summon the petitioner and he
disputed the same and hence, complainant examined
himself as PW1 and got marked the subject matter of the
Cheque as Ex.P1 and also produced the document of
endorsement issued by the bank and notice and also
refused the postal cover, photographs, Ex.P6 and Ex.P7.
On the other hand, the petitioner examined himself as
DW1 and not produced any document. The Trial Court
having considered the material on record, particularly
taking into note of admittedly, Cheque pertains to the
account of the petitioner and though in the cross-
examination, DW1 disputed the signature that the
signature not belongs to him, but admittedly issuance of
the Cheque for chit transaction. It is also the defense of
- 11 -
NC: 2025:KHC:975
the petitioner that the said Cheque is issued in respect of
the chit fund for Rs.50,000/- and he has taken the chit for
Rs.57,000/- but though he admits in the cross-
examination that Ninganna and Kempanna are also the
subscribers of the said chit and they have not been
examined before the Trial Court. Having taken note of
issuance of Cheque and admission of the petitioner that
the said Cheque was issued in connection with chit
transaction, nothing is placed on record except the self
statement of the DW1 in his evidence. The other
contention is that complainant/respondent was not having
any financial capacity and not produced any evidence. In
order to substantiate his contention during the course of
cross-examination of DW1, even document of Ex.P6 and
Ex.P7 are confronted and admitted the same. Apart from
that other contention of the petitioner's counsel that notice
was not duly served. Having perused Ex.P5, it is very clear
that postman went to the house of the petitioner on
several occasion and ultimately he has refused to receive
the notice and there is an endorsement and when such
- 12 -
NC: 2025:KHC:975
being the case, the very contention of the petitioner's
counsel that the petitioner is resident of Mottahalli and in
the notice is addressed to Muttahalli and the said
submission cannot be accepted in view of the endorsement
found in Ex.P5(a) that he went to the house of the
petitioner on several occasions and ultimately he has
refused. The other contention that the Cheque was issued
on 28.01.2012 itself, but the very case of the complainant
is that when the Cheque was issued he gave post dated
Cheque and also on perusal of Ex.P1, Cheque dated
02.05.2012 and hence, the contention of the revision
petitioner's counsel that Cheque would have been
presented within 3 months from 28.01.2012 also cannot
be accepted since Ex.P1 dated 02.05.2012 and specific
case is also that he has given the post dated Cheque and
when such being the case, the very contention the revision
petitioner that no any enforceable debt cannot be
accepted.
- 13 -
NC: 2025:KHC:975
9. The Trial Court as well as the First Appellate
Court having taken note of the material on record and on
re-appreciation of both oral and documentary evidence
placed on record particularly the documents Ex.P1 to
Ex.P7 and in paragraph No.9, the Trial Court discussed
with regard to the evidence of the PW1 and also taken
note of the principles laid down in the judgment of
Rangappa V/s Sri.Mohan reported in (2010) 11 SCC
441 with regard to the presumption is concerned and also
taken note of the evidence of DW1 in paragraph No.11 and
he admitted the Ex.P5 - notice sent to the petitioner, but
refused to receive the same and there is an endorsement
and in detail discussion was made in paragraph No.11
regarding the case of the complainant and also taken note
of the judgment of M.S.Narayana Menon @ Mani V/s
State of Kerala and another reported in AIR 2006 SC
3366 "Once the accused discharges the initial burden
placed on him the burden of proof would revert back to
the prosecution", but in the case on hand, no such
circumstances is warranted since they admitted the
- 14 -
NC: 2025:KHC:975
issuance of Cheque and also the Cheque pertains to him
and no any preponderance of probabilities rebutting the
case of the complainant. When such being the case, I do
not find any error committed by the Trial Court in
convicting and sentencing the revision petitioner. The First
Appellate Court in paragraph No.17 taken note of the fact
that admittedly, the Cheque in issue belongs to the
account pertaining to the accused and also discussion is
made with regard to the contention that he had taken chit
transaction that the Cheque was issued in respect of chit
transaction and also taken note of the evidence of the
respondent/complainant and also the accused and taken
note of the fact that though petitioner submits that
Cheque issued in favour of chit transaction, he
categorically admitted that one Kempanna and Ninganna
were members of the chit and he had not lead any
evidence with regard to the complainant was running chit
transaction and in order to substantiate the same, he
would have examined the members of the said chit and
the same has not been done and having taken note of the
- 15 -
NC: 2025:KHC:975
admission with regard to the Cheque pertains to the
petitioner and the signature and also in the cross-
examination DW1 denies the signature, but he
categorically admitted that Cheque was given in respect of
chit transaction is concerned. The Court has to take note
of the conduct of the petitioner also that in one breath
denying the Cheque that signature not belongs to him and
also on the contrary contention is taken that Cheque is
given in respect of the chit transaction is concerned. When
such material available on record, the First Appellate Court
in detail discussed in paragraph No.20 with regard to the
defense taken by the petitioner and also the presumption
under Section 139 of N.I Act and except self styled
statement of the petitioner that Cheque was issued in
respect of the chit transaction is concerned, nothing is
placed on record and the same is discussed in paragraph
No.26 of the judgment of the First Appellate Court. Hence,
I do not find any error committed by the First Appellate
Court on re-appreciation evidence and not found any
perversity in finding of the Trial Court as well as the First
- 16 -
NC: 2025:KHC:975
Appellate Court. The very contention of the revision
petitioner's counsel that both Courts have committed an
error cannot be accepted.
10. The learned counsel for revision petitioner
would contend that when the appeal was filed in the year
2022, he was aged about 75 years and now he is aged
about 77 years and the Court has to take note of the age
of the revision petitioner and it is appropriate to modify
the sentence instead of imprisonment and fine, the same
has to be modified.
11. Having considered the submissions of the
learned counsel for revision petitioner and also the learned
counsel for the respondent and also considering the age of
the revision petitioner who is aged about 77 years and the
same can be modified as, if he fails to pay the amount
within 4 weeks from today and then sentence passed by
the Trial Court will remains as it is and subject to the
payment only, the modification of the order that if he
makes the payment then no question of imprisonment.
- 17 -
NC: 2025:KHC:975
With this observation, the criminal revision petition is
disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
