Karnataka High Court
Sri. H.S.Muniraju vs Sri.H.A.Bheemanna on 26 March, 2025
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CRL.RP No. 1347 of 2016
C/W CRL.RP No. 1348 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO. 1347 OF 2016
C/W
CRIMINAL REVISION PETITION NO. 1348 OF 2016
IN CRL.RP No. 1347/2016
BETWEEN:
SRI. H.S.MUNIRAJU
S/O LATE SUBBANNA
AGED ABOUT 52 YEARS
PROPRIETOR, M/S SOWMYASHREE ENTERPRISES
R/AT HUTHANAHALLI VILLAGE
CHIKKAJALA HOBLI AND POST
BANGALORE NORTH TALUK
BANGALORE-562157
...PETITIONER
Digitally
signed by (BY SRI.L.NARASIMHA MURTHY, ADVOCATE)
REKHA R
Location: AND:
High Court of
Karnataka
SRI.H.A.BHEEMANNA
S/O LATE ANJANAPPA
AGED ABOUT 59 YEARS
R/AT HUTHANAHALLI VILLAGE
CHIKKAJALA HOBLI AND POST
BANGALORE NORTH TALUK
BANGALORE-562157
...RESPONDENT
(BY SRI.V.VISHWANATH SHETTY, ADVOCATE)
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CRL.RP No. 1347 of 2016
C/W CRL.RP No. 1348 of 2016
THIS CRL.RP IS FILED U/S.397 AND 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
JUDGMENT DATED 11.08.2016 IN CRL.A NO.335/2015 ON THE
FILE OF THE LXII ADDL. CITY CIVIL AND SESSIONS JUDGE, AT
BENGALURU (CCH-63) BY ALLOWING THIS PETITION AND
ETC.,
IN CRL.RP NO. 1348/2016
BETWEEN:
SRI H S MUNIRAJU
S/O LATE SUBBANNA,
AGED ABOUT 52 YEARS,
PROPRIETOR, M/S SOWMYASHREE ENTERPRISES
RESIDING AT HUTHANAHALLI VILLAGE,
CHIKKAJALA HOBLI AND POST,
BANGALORE NORTH TALUK,
BANGALORE-562157
...PETITIONER
(BY SRI.L.NARASIMHA MURTHY, ADVOCATE)
AND:
SRI H.A BHEEMANNA
SON OF LATE ANJANAPPA,
AGED ABOUT 59 YEARS,
RESIDING AT HUTHANAHALLI VILLAGE,
CHIKKAJALA HOBLI AND POST,
BANGALORE NORTH TALUK,
BANGALORE-562157
...RESPONDENT
(BY SRI.V.VISHWANATH SHETTY, 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 DATED 11.08.2016 IN
CRL.A.NO.337/2015 ON THE FILE OF LXII ADDL. CITY
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CRL.RP No. 1347 of 2016
C/W CRL.RP No. 1348 of 2016
CIVIL AND SESSIONS JUDGE, AT BANGALORE (CCH-63) BY
ALLOWING THIS PETITION AND ETC.,
THESE PETITIONS, COMING ON FOR HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
ORAL ORDER
These two petitions filed under Section 397 and 401
of Cr.P.C., is by accused challenging his conviction and
sentence passed by the trial Court for the offence
punishable under Section 138 of N.I. Act in
C.C.Nos.16821/2005 and 26825/2005, which came to be
confirmed by the Sessions Court by dismissing the appeals
filed by him.
2. For the sake of convenience, parties are
referred to by their ranks before the trial Court.
3. Since the complainant and accused are common
and the facts leading to the filing of complaints are also
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common, they are clubbed together and disposed of by a
common order.
4. It is the case of the complainant that he and
accused are residents of the same village and being
friends known to each other from the past several years.
Accused is a contractor by profession. In the month of
April 2004, accused approached the complainant for hand
loan of Rs.3,85,000/- promising to repay the same in two
instalments in an interval of six months. Accordingly,
complainant lend him Rs.3,85,000/- in cash on
20.04.2004. However, accused failed to fulfill his promise
and on repeated request and demand by the complainant,
accused issued 3 cheques i.e., cheque for Rs.1,85,000/-
dated 20.10.2004 and 2 cheques Rs.1,00,000/- each
dated 05.04.2005 with an assurance that they would be
honoured on presentation. Accordingly, he presented 2
cheques for Rs.1,00,000/- each on due date and cheque
for Rs.1,85,000/- in the first week of February, 2005.
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4.1 However, all the cheques were dishonoured for
"funds insufficient" and "proprietory not marked".
Complainant got issued legal notice. However, accused
has refused to receive the legal notice and sent it back. He
has also not paid the amount due under the cheque and
also send reply. Without any alternative, complaint is filed.
5. After due service of summons, accused has
appeared and contested the case by pleading not guilty.
6. In CC.No.16821/2005, complainant got himself
examined as PW-1 and got marked Exs.P1 to 8.
7. In CC.No.26825/2005, complainant got himself
examined as PW-1 and got marked Exs.P1 to 10.
8. During the course of his statement under
Section 313 Cr.P.C, accused has denied the incriminating
evidence led by the complainant.
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9. In both cases, accused examined himself as
DW-1. In CC.No.16821/2005, he has relied upon Exs.D1
to 3.
10. The trial Court accepted the contention of the
complainant and convicted the accused.
11. In CC.No.16821/2005, accused is sentenced to
pay a fine of Rs.3,70,000/- in default to undergo simple
imprisonment for one year. Out of it, Rs.3,45,000/- is
awarded as compensation and remaining sum of
Rs.25,000/- to be defrayed towards litigation expenses.
12. In CC.No.26825/2005, accused is sentenced to
pay a fine of Rs.4,00,000/- in default to undergo simple
imprisonment for one year. Out of it, Rs.3,75,000/- is
awarded as compensation and remaining sum of
Rs.25,000/- to be defrayed towards litigation expenses.
13. Aggrieved by the same, accused filed
Crl.A.No.335/2015 and 337/2015 before the Sessions
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Court. However, they were dismissed confirming the
judgment and order passed by the trial Court.
14. Aggrieved by the same, accused is before this
Court contending that the impugned judgment and order
are against law, facts and probabilities of the case and as
such liable to be set aside. The evidence led by the
complainant is highly discrepant and unconvincing. The
impugned judgment and order is perverse, illegal,
arbitrary and not in accordance with law. There is no
application of mind. Both Courts have erred in holding that
complainant has proved advancing loan of Rs.3,85,000/-
and that the cheques were issued towards repayment of
the same. Complainant has failed to prove his financial
capacity, except his self-serving statement.
14.1 The trial Court has failed to appreciate the fact
that accused has borrowed Rs.2,00,000/- from
complainant during May 2003 and at that time, 3 blank
cheques were issued by way of security. Even though the
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said amount is repaid, complainant failed to return the
blank cheques. Using the same, he has filed false
complaints. The punishment imposed is disproportionate
to the allegations proved against the accused.
14.2 At the first instance, the complaints were
dismissed and accused was acquitted. Complainant
challenged the same in Crl.A.No.1646/2006 c/w
1647/2006. It was allowed and case was remanded to the
trial Court for reconsideration. After the remand the trial
Court convicted the petitioner. Viewed from any angle, the
impugned judgment and order are not sustainable and
pray to allow the petition and acquit the accused.
15. On the other hand learned counsel for
complainant supported the impugned judgment and order
and sought for dismissal of the petitions.
16. Heard arguments of both sides and perused the
record.
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17. Accused admit the fact that he and complainant
are known to each other since a long period. It is not in
dispute that the cheques in question are drawn on the
account of the accused maintained with his banker and
they bear his signature. Therefore, presumption under
Section 139 of N.I Act comes into play, placing the initial
burden on the accused to prove that they were not issued
towards repayment of any legally recoverable debt or
liability. Though accused dispute that on 20.04.2004, he
has borrowed Rs.3,85,000/- from the complainant and
issued the cheques, he has specifically contended that
during May 2003, he had borrowed hand loan of
Rs.2,00,000/- from the complainant and at that time
issued the cheques in question blank by way of security.
He has alleged that even though the said loan of
Rs.2,00,000/- was repaid, complainant did not return the
cheques and misusing them, he has filed false complaints.
In the light of the presumption and specific defence unless
and until he rebut the presumption by establishing his
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defence, the burden would not shift on the complainant to
prove his case.
18. After the cheques were dishonoured,
complainant has sent legal notice. In both cases, the said
notices are returned to the sender on the ground that
accused has refused to receive them. Consequently, he
has failed to send any reply. Though during his cross-
examination, accused has denied that he has refused to
receive the notices, the endorsement on the envelopes
prove the said fact. Of course, accused is not disputing his
address to which the legal notices were sent. The accused
has not chosen to examine the postman to prove that he
never refused to receive the legal notice and the
endorsement thereon is false. By not receiving the notice
and failing to send reply, the accused has lost an
opportunity to come up with his defence at the earliest.
19. Speaking with regard to his financial capacity,
the complainant has specifically deposed that he is owning
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agricultural land and growing grapes. In fact during his
cross-examination, accused has admitted that on several
occasions he had borrowed loan from complainant and
repaid the same and complainant is having agricultural
land measuring 4-5 acres and he is getting decent income.
By taking a defence that he had borrowed Rs.2,00,000/-
from the complainant, accused is admitting both the
financial capacity of the complainant and his necessity to
borrow loan.
20. Of course, accused has failed to produce any
documents to prove that during 2003 he had borrowed
loan and repaid the same to the complainant and that
complainant failed to return the subject cheques and went
on postponing. If at all the subject cheques were issued
for the alleged loan taken during 2003 and the same was
repaid, there was no impediment for the accused to
instruct the Bank not to honour them and stop payment.
That would have been an easy way to safeguard his
interest. As admitted by the accused, he has also not filed
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any complaint against the complainant alleging misuse of
the cheques.
21. The accused has also taken up a defence that
complainant is money lender and he has filed several
cases. To evidence this fact, he has relied upon Exs.D2
and 3 which is the complaint filed by him against one
M.Nagaraju in CC.No.110/2005 for the offence punishable
under Section 138 of N.I Act and his deposition. In fact at
the first instance, the trial Court dismissed the complaint
on the ground that complainant is a money lender.
However, in Crl.A.No.1646/2006 c/w 1647/2006, the said
orders were set aside and the matters were remanded to
the trial Court for fresh disposal. In the said judgment, it
was observed that as held in S.Parameshwarappa and Anr.
Vs. Choodappa (S.Parameshwarappa)1, this Court has
held that the provisions of Karnataka Money Lenders' Act
are not applicable to provisions of Negotiable Instrument
Act. Mere fact that the complainant has extended hand
ILR 2006 KAR 4287
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loan to some other persons and initiated proceedings is
not a ground to disbelieve his case.
22. Thus, the accused has failed to rebut the
presumption. However, through the oral and documentary
evidence placed on record, the complainant has proved his
case. The trial Court as well as the Sessions Court after
due appreciation of oral and documentary evidence have
rightly convicted the accused. The conclusions arrived at
by them are consistent with the evidence on record and
this Court finds no justifiable grounds to interfere with the
same. In the result, the petitions fail, and accordingly the
following:
ORDER
1. Both petitions filed by accused under
Section 397 and 401 of Cr.P.C. is
dismissed.
2. The impugned judgment and order dated
20.01.2015 in C.C.Nos.16821/2005 and
26825/2005 on the file of XVIII ACMM,
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Bengaluru and judgment and order in
Crl.A.Nos.335/2015 and 337/2015 on the
file of LXII Addl.City Civil and Sessions
Judge, Bengaluru, are confirmed.
3. The Registry is directed to send back the
trial Court as well as Sessions Court
records along with copy of this order
forthwith.
Sd/-
(J.M.KHAZI)
JUDGE
RR
