Karnataka High Court
Nagesh Y N vs Yelahanka Merchants Finance Company on 3 July, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
NC: 2025:KHC:23878
CRL.RP No. 799 of 2015
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL REVISION PETITION No. 799 OF 2015
BETWEEN:
NAGESH Y N
S/O NANJE GOWDA
AGED ABOUT 35 YEARS
SHAKTHI TRADERS
R/AT No.51/C, 2ND MAIN ROAD
A.P.M.C. YARD, YESWANTHPUR
BANGALORE - 560 022.
...PETITIONER
Digitally signed by
LAKSHMINARAYANA (BY SRI M V PARAMESHWARAPPA, ADVOCATE)
MURTHY RAJASHRI
Location: HIGH AND:
COURT OF
KARNATAKA
YELAHANKA MERCHANTS
FINANCE COMPANY
HEMKUMAR NAGAR
BYPASS, B.B.ROAD, YELHANKA
BANGALORE - 64.
...RESPONDENT
(BY SRI M SUBRAMANI, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT
ORDER DATED 29.04.2015 PASSED BY THE LI ADDL. CITY
CIVIL JUDGE AND S.J., BANGALORE CITY IN
CRL.A.No.517/2013 IN CONFIRMING THE JUDGMENT AND
SENTENCE DATED 12.09.2013 PASSED BY THE XII A.C.M.M.,
BANGALORE IN C.C.No.2701/2007 AND ACQUIT THE
PETITIONER IN THE ABOVE CASE AND ETC.,
-2-
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CRL.RP No. 799 of 2015
HC-KAR
THIS PETITION COMING ON FOR FURTHER HEARING
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
This revision petition is directed against the
judgment dated 29.04.2015 passed in Crl.A.No.517/2013
by LI Addl.City Civil and Sessions Judge, Bangalore City
where under the judgment of conviction dated 12.09.2013
passed in C.C.No.2701/2007 by XII ACMM, Bangalore
convicting the petitioner for the offence punishable under
Section 138 of the N.I.Act and sentencing him to pay fine
of Rs.1,60,000/- and in default, to undergo simple
imprisonment for three months has been affirmed.
2. Heard learned counsel for the petitioner and
learned counsel for respondent.
3. The case of the complainant before the trial Court
was that the petitioner - accused approached respondent -
complainant on 28.05.2005 and availed loan of Rs.2 lakhs
with a condition to repay the same with interest within a
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short period. When the respondent - complainant insisted
the petitioner - accused to repay the amount borrowed he
issued a cheque bearing No.472009 dated 03.11.2005 for
Rs.1,07,990/- towards discharge of loan. The respondent
presented the said cheque for encashment and it came to
be dishonoured for the reason 'insufficient funds.' The
complainant got issued legal notice to the petitioner and it
has been served on him. Inspite of service of notice, the
petitioner has not made payment of cheque amount and
therefore, respondent - complainant has initiated
proceedings against the petitioner for the offence
punishable under Section 138 of N.I.Act.
4. The complainant has examined its Manager as
PW.1 and got marked Exs.P1 to P12. The petitioner -
accused inspite of giving opportunity has not cross-
examined PW.1. The statement of the accused has been
recorded under Section 313 of Cr.P.C. The accused has
not lead any defence evidence. Learned Magistrate after
hearing arguments on both sides and appreciating the
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evidence on record has convicted the petitioner for the
offence punishable under Section 138 of the N.I.Act. The
said judgment of conviction has been challenged by the
petitioner - accused before the Sessions Court in
Crl.A.No.517/2013 and it came to dismissed on merits
affirming the judgment of conviction.
5. Learned counsel for the petitioner would contend
that petitioner has not been given sufficient opportunity
for cross-examination of PW.1. Petitioner was unwell at
the relevant time and therefore, he could not appear
before the Court. The petitioner has not been given
sufficient opportunity to lead defence evidence. With this
learned counsel for the petitioner prayed to set-aside the
impugned judgment and remand of the matter.
6. Learned counsel for respondent would contend
that petitioner has been given sufficient opportunity for
cross-examination of PW.1, but inspite of that he has not
cross-examined PW.1. Petitioner remained absent for
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nearly about two years after chief-examination of PW.1
and when the matter was posted for cross-examination of
PW.1. The trial Court has given opportunity to the
petitioner to lead defence evidence but he has not lead
defence evidence. The petitioner has not produced any
document to show regarding his ill-health. Even the
petitioner has not sought for remand of the matter in the
appellate Court and before this Court. With this he prayed
for dismissal of revision petition.
7. Having heard learned counsels this Court has
perused the impugned judgments and trial Court records.
8. It is the specific case of respondent - complainant
that the petitioner has availed loan of Rs.2 lakhs and with
a condition to repay the same within a short period. The
petitioner in order to repay the amount borrowed has
issued cheque - Ex.P1 and it has been dishonoured for
want of funds. The Manager and GPA holder of the
respondent - complainant has been examined as PW.1 on
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25.05.2011 and got marked Exs.P1 to P12. Thereafter the
case has been posted for cross-examination on
25.06.2011 and 25.07.2011. The petitioner - accused has
not chosen to cross-examine PW.1 and he remained
absent on 25.07.2011. On 25.07.2011, cross-examination
of PW.1 has been taken as nil. The trial Court has issued
NBW against him. Petitioner - accused appeared before
the trial Court on 19.07.2013 and filed application seeking
recall of NBW issued against him and it has been recalled.
His statement under Section 313 of Cr.P.C. has been
recorded. The petitioner - accused remained absent from
25.07.2011 to 19.07.2013 for a period of nearly two
years. Thereafter also the petitioner has not filed
application seeking recall of PW.1 for cross-examination.
The petitioner has been given opportunity to lead defence
evidence on 20.08.2013 and he has not lead the defence
evidence. Considering the said aspect sufficient
opportunity has been given to the petitioner - accused for
cross-examination of PW.1 and to lead defence evidence.
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Even though it is stated by learned counsel for the
petitioner that petitioner was unwell during that period
but no documents are produced in that regard. As the
issuance of cheque Ex.P1 has not been disputed by cross-
examining PW.1, presumption has to be drawn under
Section 139 of N.I.Act that the cheque is issued for
discharge of debt. The said presumption has not been
rebutted by the petitioner. Considering the said aspect,
learned Magistrate has rightly convicted the petitioner for
the offence under Section 138 of the N.I.Act as other
ingredients of Section 138 of the N.I.Act has been
complied. Even before the appellate Court, the petitioner
has not produced any medical documents to show his ill-
health. Even he has not sought for remand of the matter
in the appeal preferred by him in Crl.A.No.517/2013.
Even in the present revision petition the petitioner has not
sought for remand of the matter and he has not produced
any medical documents to show his ill-health during the
relevant period. Considering all these aspects, no grounds
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are made out to allow this revision petition. In the result,
this revision petition is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DKB
