Karnataka High Court
G. Thippeswamy vs Swethadri on 10 March, 2025
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CRL.RP No. 611 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO. 611 OF 2017
BETWEEN:
G. THIPPESWAMY
S/O GOVINDAPPA,
AGED ABOUT 52 YEARS,
RESIDING AT NO.1480, 6TH MAIN ROAD,
3RD CROSS, KENGERI SATELLITE TOWN,
BANGALORE-560060
...PETITIONER
(BY SRI.SAMPANGI RAMAIAH, AMICUS CURIAE)
AND:
SWETHADRI
S/O LATE ALASINGRACHAR,
Digitally AGED ABOUT 50 YEARS,
signed by RESIDING AT NO.590, 2ND MAIN ROAD,
REKHA R KENGERI SATELLITE TOWN,
Location:
High Court BANGALORE-560060
of Karnataka ...RESPONDENT
(BY SRI. VISHWANATH R HEGDE, 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
ORDER AND JUDGMENT PASSED BY THE HON'BLE XXIII
A.C.M.M., BENGALURU IN C.C.NO.13727/2013 DATED:
19.07.2016 AND IN CRL.APPEAL NO. 886/2016 ON THE FILE OF
THE LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH-61) DATED: 31.3.2017.
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CRL.RP No. 611 of 2017
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
ORAL ORDER
In this petition filed under Section 397 r/w 401 (5) of
the Cr.P.C, accused has challenged his conviction and
sentence for the offence punishable under Section 138 of
N.I. Act by the trial Court, which came to be confirmed by
the Sessions Court by dismissing the appeal filed by him.
2. For the sake of convenience, the parties are
referred to by their ranks before the trial Court.
3. Complainant filed a complaint against the
accused, alleging offence punishable under Section 138
N.I. Act, contending that he and accused are known to
each other since more than 15 years. During 2011,
accused was constructing a house and offered to give the
2nd floor on lease for three years for Rs.3,00,000/- as he
was in need of the said amount for completing the
construction. As complainant was intending to demolish
the house where he was living during 2012 for
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reconstruction, he accepted the offer and paid
Rs.3,00,000/- to the accused in the presence of his wife
Sunitha Swamy and common friend K.H.Ramamurthy. In
this regard a lease agreement dated 01.10.2011 was
entered into. By way of guarantee accused issued three
cheques for Rs.1,00,000/- each without specifying the
date.
3.1 However, after completion of the 2nd floor,
accused failed to put the complainant in possession and on
the other hand let it out to somebody else. After much
persuasion accused instructed the complainant to present
the cheques for realization and collect the amount.
However, when complainant presented the cheques for
reaslization, they were returned dishonoured with
endorsement 'funds insufficient'. Though complainant got
issued legal notice, intentionally accused has not received
the same and it was returned unserved as "door locked,"
"information delivered" and "addressee absent during
delivery time". Accordingly, complaint is filed.
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4. Accused resisted the case by pleading not
guilty.
5. At the trial he took up a defence that the
cheques in question were given by him to his wife with
regard to a transaction between his wife and her cousin
Ramamurthy. Though the amount due to said
Ramamurthy was repaid, he did not return the cheques
and got filed the present complaint through the
complainant.
6. The complainant not only examined himself as
PW-1, he got examined the said Ramamurthy as PW-2. He
relied upon Exs.P1 to 11.
7. During his statement under Section 313 Cr.P.C,
the accused has denied the incriminating evidence led by
the complainant.
8. In fact he has also entered the witness box and
examined himself as DW-1 and his wife as DW-2 and
relied upon Exs.D1 to 4.
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9. Vide the impugned judgment and order, the
trial Court rejected the defence of the accused and
convicted him. The appeal filed by him also came to be
dismissed by the Sessions Court.
10. Aggrieved by the same, accused has filed this
petition contending that the impugned judgment and order
are illegal, perverse, unlawful and bad in law and as such
liable to be set aside. It is contrary to the oral and
documentary evidence placed on record and as such
perverse. The evidence of PW-1 and 2 is not reliable and
trustworthy and the Courts below have erred in keeping
reliance in their testimony. They have also not appreciated
the evidence of DWs-1 and 2 and the documents relied
upon by the accused. Viewed from any angle, the
impugned judgment and order are not sustainable and
pray to allow the petition and acquit him.
11. On the other hand learned counsel appearing
for complainant supported the impugned judgment and
order and sought for dismissal of the petition.
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12. Heard arguments and perused the record.
13. It is not in dispute that the cheques in question
are drawn on the account of the accused and they bear his
signature. It is also not in dispute that when presented
they were returned dishonoured for want of sufficient
funds. In view of the same, presumption under Section
139 of the N.I. Act is attracted to the effect that the
cheques were issued towards repayment of any legally
recoverable debt or liability, placing the initial burden on
the accused to rebut the same. During his cross-
examination, accused has admitted his address to which
the legal notice was sent.
14. Complainant who is examined as PW-1 has
reiterated the complaint averments. He has chosen to
examine Ramamurthy who is the cousin of wife of accused
as PW-2 to show that there was no transaction between
the said Ramamurthy and the wife of the accused and
therefore, there was no occasion for her to handover the
cheques in question to Ramamurthy.
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15. Both accused and his wife who are examined as
DWs-1 and 2 have deposed that they came to be
acquainted with the complainant through Ramamurthy and
the cheques in question were given to Ramamurthy by the
wife of accused in respect of transaction between them
and misusing the same, complaint is filed.
16. However, as rightly observed by the trial Court
and the Sessions Court, except the self-serving statement
of DWs-1 and 2, accused has not placed any evidence to
show that his wife had transaction with Ramamurthy and
accused has also not lead any evidence for having regard
the loan taken for from PW-2 Ramamurthy cheques were
issued to him. Admittedly, after the alleged repayment of
the said loan to Ramamurthy and on his failure to return
the cheques the accused has not given any instructions to
his banker not to honour the cheques and stop their
payment. He has also not given any complaint against
Ramamurthy for alleged misuse of the cheques.
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17. Ex.P7 is the lease agreement executed between
the complainant and accused. As rightly held by the trial
Court accused has not specifically disputed the recitals of
Ex.P7. PW-2 Ramamurthy is also a witness to Ex.P7. In
fact during his cross-examination, the wife of the accused
has admitted that the contents of Ex.P7 refers to their
house and Thippeswamy who is referred to as lessor
therein is her husband. The accused has not chosen to
send Ex.P7 for handwriting expert to prove that it does not
bear his signature.
18. Perusal of the oral and documentary evidence
placed on record, clearly indicates that intentionally the
accused has failed to receive the legal notice and at the
first available opportunity to come up with a definite
defence. On the other hand at the trial, he has come up
with a false defence. His conduct in not instructing the
bank to stop payment and/or also not filing complaint
against Ramamurthy as well as complaint is inconsistent
with the defence taken by him. As rightly observed by the
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First Appellate Court, in the absence of any motive, it
cannot be expected that Ramamurthy who is a common
friend of complainant and accused and also related to the
wife of accused would depose against the accused. Failure
of the accused to instruct the bank to stop payment itself
goes to show that he has taken a false defence.
19. Appreciating the oral and documentary
evidence placed on record, the trial Court as well as the
First Appellate Court have rightly held that accused is
guilty of the offence punishable under Section 138 of N.I.
Act. This Court finds no perversity in the conclusions
arrived at by them calling for interference. In the result
the petition fails and accordingly, the following:
ORDER
(i) The petition filed under Section 397 r/w
401(5) of Cr.P.C. by the accused is
dismissed.
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(ii) The judgment and order dated 19.07.2016
in C.C.No.13727/2013 on the file of XXIII
ACMM, Bengaluru and judgment and order
dated 31.03.2017 in Crl.A.No.886/2016 on
the file of LX Addl.City Civil and Sessions
Judge, Bengaluru (CCH-61) are confirmed.
(iii) The Registry is directed to send back the
trial Court records as well as Sessions
Court records along with copy of this order
forthwith.
Appreciation is placed on record for the able
assistance given by the learned Amicus Curiae. His
remuneration is fixed at Rs.5,000/-. The High Court Legal
Services Committee is directed to pay the same.
Sd/-
(J.M.KHAZI)
JUDGE
RR
