Karnataka High Court

Sri Thimmaiah H E vs Sri B Ravindra Singh on 4 June, 2025

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 4TH DAY OF JUNE, 2025

                       BEFORE
          THE HON'BLE MS JUSTICE J.M.KHAZI
   CRIMINAL REVISION PETITION NO.1274 OF 2016
                         C/W
   CRIMINAL REVISION PETITION NO.1273 OF 2016


IN CRL.RP NO.1274/2016
BETWEEN:

       SRI THIMMAIAH.H.E @ ANANDA,
       S/O ERAPPA
       AGED ABOUT 32 YEARS,
       R/O NO.53, 3RD MAIN ROAD,
       KASHINAGARA, YELACHENAHALLI,
       BANGALORE-560078

                                          ...PETITIONER

(BY SRI.ADINARAYAN, ADVOCATE)

AND:

   SRI B RAVINDRA SINGH
   S/O BALAJI SINGH ,
   AGED ABOUT 40 YEARS,
   R/O NO.274, 80 FEET ROAD
   SRINIVASANAGARA MAIN ROAD
   SRINIVASANAGARA
   BANGALORE-50

                                         ...RESPONDENT

(BY SMT.USHA.M.S, ADVOCATE)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
JUDGMENT, CONVICTION AND SENTENCE PASSED BY THE XXII
A.C.M.M., BANGALORE PASSED IN C.C.NO.1046/2012 DATED
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18.11.2015 CONVICTING THE APPELLANT FOR AN OFFENCE
P/U/S 138 OF N.I. ACT AND SENTENCING HIM TO PAY A FINE
OF RS.2,55,000/- AND IN DEFAULT TO UNDERGO S.I. FOR 1
YEAR AND WHICH WAS CONFIRMED BY LXII ADDL. SESSIONS
JUDGE, IN CRL.A.NO.1496/2015 BY ALLOWING THE ABOVE
CRL.RP AND PLEASED TO ACQTUIT THE PETITIONER.

IN CRL.RP NO.1273/2016
BETWEEN:

   SRI THIMMAIAH.H.E @ ANANDA ,
   S/O ERAPPA
   AGED ABOUT 32 YEARS,
   R/O NO.53, 3RD MAIN ROAD
   KASHINAGARA, YELACHENAHALLI,
   BANGALORE-560078

                                          ...PETITIONER

(BY SRI.ADINARAYAN, ADVOCATE)

AND:

   SRI B MANJUNATH
   S/O LATE BORAIAH,
   AGED ABOUT 36 YEARS,
   R/O NO.211, SRI RAMA ROAD,
   THYAGARAJANAGARA
   BANGALORE-28
                                         ...RESPONDENT
(BY SMT.USHA.M.S, ADVOCATE)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
JUDGMENT, CONVICTION AND SENTENCE PASSED BY THE XXII
A.C.M.M., BANGALORE PASSED IN C.C.NO.6771/2012 DATED
18.11.2015 CONVICTING THE APPELLANT FOR AN OFFENCE
P/U/S 138 OF N.I. ACT AND SENTENCING HIM TO PAY A FINE
OF RS.3,00,000/- AND IN DEFAULT TO UNDERGO S.I. FOR 1
YEAR AND WHICH WAS CONFIRMED BY THE LEARNED LXII
ADDL. SESSIONS JUDGE, IN CRL.A.NO.1497/2015 BY
ALLOWING THE ABOVE CRL.RP AND PLEASED TO ACQUIT THE
PETITIONER.
                                 -3-




    THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 02.04.2025, THIS DAY ORDER WAS
PRONOUNCED THEREIN AS UNDER:
CORAM:    HON'BLE MS JUSTICE J.M.KHAZI

                      CAV COMMON ORDER


     These two petitions filed under Section 397 r/w 401

Cr.P.C are by the accused, wherein he has challenged the

concurrent findings of the trial Court and Sessions Court

convicting him for the offence punishable under Section

138 of Negotiable Instrument Act.


     2.   These       two    petitions    are   arising   out     of

C.C.No.1046/2012       and    C.C.No.6771/2012.       Though      in

these cases, complainant are different, accused is common

and the transaction through which liability of the accused

has arisen is the same and in these petitions there are

common discussions, they are clubbed together and

decided by a common order.


     3.   For   the    sake    of     convenience,   petitioner   is

referred to as complainant with suffix of his name and

respondent is referred to as accused.
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       4. It is the case of complainant Manjunath that he is

the owner of Innova car bearing registration No.KA-05-

MH-5774 ('Innova' for short). Accused is known to him

since several years. During the first week of September

2010, accused requested the complainant to lend him

Innova to shift his relative to hospital for delivery and that

he will return it after one week. However, after one week,

accused not only failed to return the same, but also give

its   whereabouts.   From    reliable   sources   complainant

Manjunath came to know that accused has pledged the

Innova with one Vijay by forging his signature in the

transfer format and fraudulently received ₹4.5 lakhs.

      4.1 Therefore, he approached the Thyagarajnagar

police to file complaint. Since the concerned police did not

respond to him, he filed PCR.No.4663/2011 against the

accused for the offence punishable under Sections 406,

415, 416, 420, 453, 465, 467, 468 and 471 of IPC. It was

referred to the concerned police for investigation by the

Court and case was registered in Cr.No.26/2011. However,

on the intervention by the elder and well wishers, on

05.06.2011, the matter was settled and accused agreed to
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pay a sum of ₹1,50,000/- within three months and issued

cheque dated 05.09.2011 for ₹1,50,000/-. However, on

due date when it was presented for realisation, it was

dishonoured for want of sufficient funds and after issuing

legal notice dated 26.09.2011 and on the failure of

accused to comply with the same complaint is filed.


     5.    So far as the case of complainant B.Ravindra

Singh who is a secondhand car dealer is concerned, it is

alleged that accused brought the Innova to him for sale

and with regard to the same accused was due in a sum of

₹2.5 lakhs and promised to repay the same within 2-3

months. After the said period when accused failed to pay

the said amount, on his repeated request and demand

issued cheque dated 05.09.2011 for ₹2,50,000/- and

ultimately it was dishonoured giving rise to the cause of

action for filing the complaint.


     6.    In both cases, accused appeared and defended

by pleading not guilty.
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     7.     In C.C.No.1046/2012, complainant examined

himself as PW-1 and got marked Exs.P1 to 7.


     8.    In   C.C.No.6771        of    2012,       complainant    is

examined as PW-1 and Exs.P1 to 9.


     9.    In both cases, during the course of his statement

under     Section   313   Cr.P.C      accused    has    denied     the

incriminating evidence led by the complainant.


     10.     In both cases, accused as examined himself as

DW-1. No documents are marked on behalf of the accused.


     11.     The trial Court convicted the accused in both

cases and sentenced him to pay fine with default sentence

of imprisonment. Out of the fine amount, compensation is

ordered to be paid to the complainant.


     12.     Aggrieved     by      the    same,        the   accused

approached the Sessions Court by two separate appeals.

However,     both   appeals     came      to    be    dismissed    by

confirming the judgment and order of the trial Court.
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     13.   Against the concurrent findings of the trial

Court and Sessions Court, accused has come up with these

petitions, contending that the same are perverse, illegal,

unlawful and bad in law and as such liable to be set aside.

The impugned judgment and order are contrary to facts,

material, evidence placed on record. The Courts below

have placed reliance upon the evidence of complainant,

which is totally unbelievable, unacceptable and throws

doubt upon its credibility and reliability. When the accused

has disputed the issue of cheque, the evidence of PW-1

requires corroboration. In the absence of the same, no

reliance can be placed on his evidence.

   13.1 The demand notice is not served on the accused

and false Shara is made in collusion with the Postal staff.

During the cross-examination, the complainants have

admitted that accused was summoned to the police station

and blank signed cheques were taken. They have failed to

consider   the   admissions   extracted during the   cross-

examination of complainant. The trial Court as well as the

Sessions Court have failed to appreciate the evidence in

right perspective and as such, the findings given by them
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are perverse and they call for interference by this Court

and hence the petitions.


     14.     On    the   other    hand,    learned      counsel   for

complainants supporting the            impugned judgments and

orders, would submit that complainant Manjunath is the

registered owner of Innova. Under the guise of using it for

period of one week, accused sold it through complainant

Ravindra Singh and collected ₹4 lakhs.           After complaint

came to be filed, he agreed to pay ₹1,50,000/- to

complnaint Manjunatha and ₹2,50,000 to complainant

Ravindra Singh and issued the subject cheques. On their

dishonour,   the    complainant        have   rightly     filed   the

complaints. Though the accused claimed that he is the real

owner of the Innova, but failed to establish the said fact.

On appreciation of oral and documentary evidence placed

on record, the trial Court and Sessions Court have rightly

held the accused guilty and convicted and sentenced him.

There is no perversity in the conclusions arrived and

findings given by the trial Court and therefore no grounds
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to interfere with the same and sought for dismissal of the

petitions.


     15.     Heard arguments and perused the record.


     16.     Thus, the dispute between complainant and

accused move around the ownership of Innova.        Accused

claim that he is the owner of the said vehicle, but he got it

purchased in the name of complainant B Manjunath, as

loan could not be raised in his name. On the other hand,

complainant B. Manjunath has claimed that he is the

owner of the said vehicle and in fact the registration

certificate is standing in his name, which fact is not in

dispute. During the course of his evidence he has deposed

that when he purchased the said vehicle, he invested ₹4

lakhs and for the remaining amount loan was taken. He

had paid 8 to 10 EMIs. He has also deposed that after the

dispute arose it was settled to sell the Innova for ₹5 lakhs.

Out of it, accused paid ₹3.5 lakhs and for the remaining

1.5 lakhs issued the cheque in question. Ex.P3 is the letter

given by the accused admitting that the Innova belongs to

complainant B. Manjunath and he has sold it to one Vinay
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and received ₹4.5 lakhs and after repaying the said

amount to Vinay, he would get back the Innova return it to

B. Manjunath. Ex.P4 is the letter given by complainant B.

Manjunatha stating that after he receives ₹1.5 lakhs from

the accused, he would take back the complaint filed

against him.


     17.   Even though during the course of his evidence,

the accused has claimed that he is the registered owner of

Innova, except his self-serving statement there is nothing

on record to establish the said fact. During his cross

examination, he has denied that in the Panchayat, he

agreed to pay ₹5,00,000/- and out of it paid ₹3.5 lakhs

and for the remaining sum of ₹1.5 lakhs he issued the

subject cheque.


     18.   In this regard, complainant B. Ravindra Singh

has deposed that the Innova in question was of 2010

model. It was agreed to be sold for ₹9 lakhs. Out of it, he

paid ₹2.5 lakhs to the accused and before the remaining

₹6,50,000/- could be paid, the RC owner i.e, complainant

B. Manjunath gave complaint and therefore he requested
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accused to return ₹2.5 lakhs paid by him and accordingly,

accused issued the subject cheque. After it's dishonour, he

filed the complaint. Ex.P7 is the letter dated 05.06.2011

given by accused to complainant B. Ravindra Singh,

acknowledging his liability to pay ₹2.5 lakhs.


     19.    In the light of the above circumstances, it is to

be examined whether the allegation against accused for

the offence punishable under Section 138 of N.I Act is

established. Having regard to the fact that the cheques in

question are drawn on the account of the accused

maintained with his banker and they bare his signature,

presumption under Section 139 of N.I Act comes into play,

placing the initial burden on the accused to prove that the

cheques were not issued towards repayment of any legally

recoverable debt or liability and the circumstances in which

they came to reach the hands of complainant. As discussed

earlier, the accused has failed to rebut the presumption.

On the other hand, the evidence led by the complainants

prove that the cheques were issued towards repayment of

the legally recoverable debt or liability.
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     20.   Despite service of legal notice, the accused has

failed to send any reply spelling out his defence at the

earliest available opportunity. If the cheques were taken

by the complainant under the threat from the concerned

police, there was no impediment for the accused to

instruct bank to stop payment, assigning the reasons.

Accused has also not availed this option. In the light of the

above facts and circumstances, the trial Court as well as

the Sessions Court are justified in holding that the

allegation against accused are proved and he has failed to

rebut the presumption. The conclusions arrived at and

findings given by the trial Court are consistent with the

evidence placed on record and this Court finds no

perversity calling for interference in exercise of the powers

under Section 397 r/w 401 Cr.P.C.


     21.   In the result both petitions filed by the accused

fail and accordingly the following:

                           ORDER
1. Petitions filed by the accused under Section
397 r/w 401 Cr.P.C are dismissed.
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2. The impugned judgment and order dated
18.11.2015 in C.C.Nos.6771/2012 and
1046/2012 on the file of XXII ACMM,
Bengaluru and judgment and order dated
01.08.2016 and 05.08.2016 in
Crl.A.Nos.1497/2015 and 1496/2015 on the
file of LXII Addl.City Civil and Sessions
Judge, Bengaluru are confirmed.
3. The Registry is directed to send back the