Karnataka High Court

Sannaswamy vs Sridhar on 2 May, 2025

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                                                               NC: 2025:KHC:17921
                                                          CRL.RP No. 1028 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 2ND DAY OF MAY, 2025

                                              BEFORE

                              THE HON'BLE MR JUSTICE RAJESH RAI K

                         CRIMINAL REVISION PETITION NO. 1028 OF 2022

                      BETWEEN:

                         SANNASWAMY
                         S/O NANJEGOWDA
                         AGED ABOUT 61 YEARS
                         R/AT FIRST FLOOR,
                         LAKSHMI NILAYA
                         KUVEMPU NAGARA
                         MIG-1-86-A
                         HASSAN-573 201.
                                                                    ...PETITIONER
                      (BY SRI. VIJAY KUMAR T, ADVOCATE)

                      AND:

                         SRIDHAR
Digitally signed by      S/O SHIVEGOWDA
MAYAGAIAH
VINUTHA                  AGED ABOUT 60 YEARS,
Location: HIGH           R/AT NAVEEN DRY CLEANER
COURT OF                 B.M. ROAD
KARNATAKA
                         HASSAN-573 201.
                                                                   ...RESPONDENT
                      (BY SRI. SHASHIDHAR K.N, ADVOCATE)

                           THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
                      PRAYING TO SET ASIDE THE JUDGMENT DATED 30.04.2022
                      PASSED BY THE LEARNED III ADDITIONAL DISTRICT AND
                      SESSIONS JUDGE AT HASSAN IN CRL.A.NO.244/2019 AND
                      JUDGMENT DATED 31.07.2019 PASSED BY THE IV ADDITIONAL
                      CIVIL JUDGE AND JMFC AT HASSAN IN C.C.NO.6045/2015 AND
                      THE PETITIONER TO BE ACQUITTED FOR THE OFFENCE ALLEGE
                      AGAINST HIM.
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                                                  NC: 2025:KHC:17921
                                           CRL.RP No. 1028 of 2022




    THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

CORAM:      HON'BLE MR JUSTICE RAJESH RAI K

                            ORAL ORDER

In this revision petition, the petitioner has assailed the

judgment passed in Crl.A.No.244/2019 dated 30.04.2022 by

the III Additional District and Sessions Judge, Hassan,

(hereinafter referred to as 'the First Appellate Court), whereby

the First Appellate Court dismissed the appeal filed by the

revision petitioner by confirming the judgment of conviction

and the order of sentence passed in C.C.No.6045/2015 dated

31.07.2019 by the IV Additional Civil Judge and JMFC, Hassan

(hereinafter referred to as 'the Trial Court').

2. Parties are referred to as per their ranking before

the Trial Court.

3. The abridged facts of the case are that that:

The complainant and the accused are the relatives and

are well acquainted with each other. In the month of

December, 2014, the accused approached the complainant for

financial help and borrowed a sum of Rs.2,00,000/- from the

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complainant as hand loan for his domestic necessities assuring

to repay the same within two months. For repayment of the

said loan amount, the accused has issued a cheque bearing

No.061874 dated 06.02.2015 drawn on Karnataka Bank,

Hassan Branch. The said cheque was presented by the

complainant through his banker for encashment, however, the

same was returned with an endorsement 'Insufficient Funds' on

07.02.2015. The said aspect was informed by the complainant

to the accused, despite he failed to repay the same. As such,

the complainant issued a legal notice to the accused on

19.02.2015, calling upon him to repay the cheque amount.

Though the said notice served to the accused, neither he

replied to the legal notice nor repaid the loan amount. As such,

the complainant filed the private complaint before the trial

Court under Section 200 of Cr.P.C against the accused for the

offence punishable under Section 138 of Negotiable

Instruments Act, 1881 (hereinafter referred to as the 'NI Act').

4. In order to prove the case of the complainant, he

examined himself as PW.1 and marked 5 documents as

Exs.P1 to P5. However the accused examined himself as DW.1.

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5. After assessment of oral and documentary evidence

placed before the trial Court, the trial Court passed the

judgment by convicting the accused for the offence punishable

under Section 138 of the N.I. Act and sentenced him to pay a

fine of Rs.2,26,000/-, in default of payment of fine, directed

him to undergo simple imprisonment for a period of six months.

On recovery of fine amount, he was directed to pay a sum of

Rs.2,24,000/- to the complainant as compensation and

remaining fine amount of Rs.2,000/- defrayed to the State for

the expenses incurred in the prosecution.

6. Aggrieved by the above judgment, the accused

preferred the criminal appeal before the First Appellate Court in

Crl.A.No.244/2019. On reassessment of the oral and

documentary evidence and documents on record, the learned

Session Judge dismissed the appeal and confirmed the

judgment of conviction and the order of sentence passed by the

trial Court. Challenge to the same is lis before this Court.

7. I have heard the learned counsel, Sri T. Vijay

Kumar, for the revision petitioner and learned counsel,

Sri K.N.Shashidhar, for the respondent.

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8. The primary contention of the learned counsel for

the revision petitioner is that the trial Court and the First

Appellate Court grossly erred while passing the impugned

judgment by convicting the accused without appreciating the

evidence on record in the right perspective. He further

contended that the defence of the accused has not been

properly appreciated by the trial Court and the First Appellate

Court. The specific case of the accused is that he being the

relative of the complainant, the complainant used to visit his

house, thereby the complainant had stolen the cheque-Ex.P1

from his house and presented the same for unlawful gain.

Further it is contended that the legal notice issued by the

complainant is also not served to the accused. In such

circumstances, the mandatory statutory requirement does not

complied. With these grounds, he prays to allow the revision

petition.

9. Per contra, learned counsel for the

respondent/complainant contended that both the trial Court

and the First Appellate Court after meticulously examining the

entire evidence and documents available on record, passed well

reasoned judgments, which do not call for any interference at

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the hands of this Court. He further contended that the accused

failed to rebut the initial presumption arising under the

provisions of Sections 118 and 139 of N.I. Act by placing

cogent evidence. It is further contended that the legal notice

has been served to the accused as per postal reciept-Ex.P4 and

Ex.P5. Though the defence of the accused is that the

complainant had stolen the cheque in question from the

accused, the same is not proved by placing reliable evidence.

Even otherwise, the accused has failed to lodge any complaint

to that effect. Accordingly, both the trial Court and the First

Appellate Court rightly convicted the accused for the offence

punishable under Section 138 of N.I. Act. Hence, he prays to

dismiss the revision petition.

10. Having heard the learned counsel for the respective

parties so also perused the documents, the sole point that

would arise for my consideration is:

"Whether the First Appellate Court is justified in dismissing the appeal in Crl.A.No.244/2019 dated 30.04.2022 thereby confirming the judgment of conviction and the order of sentence passed by the trial Court in C.C.No.6045/2015 dated 31.07.2019?

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11. I have given my anxious consideration on the

arguments advanced by the learned counsel for the respective

parties and also carefully perused the entire materials on

record placed before me.

12. It could be gathered from the records, Ex.P1-the

cheque in question and the signature of the accused on Ex.P1,

are not seriously disputed by the accused. The specific defence

raised by the accused is that he being the relative of the

complainant, the cheque-Ex.P1 was stolen by the complainant.

As rightly contended by the learned counsel for the

complainant, there is no such complaint lodged by the accused

to that effect. Further though it is contended by the learned

counsel for the accused that Ex.P3-the legal notice was not

served to the accused, the postal receipt as per Ex.P4 and

Ex.P5 clearly depict that the said notice was served to the

accused and the accused also not disputed his residence at the

relevant point of time. Admittedly, there is no reply notice

issued by the accused. No doubt, the initial presumption arises

under Sections 118 and 139 of N.I. Act, is a rebuttable

presumption. However, it is settled position of law that such

defence of the accused must be a probable one with cogent

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evidence. In the case on hand the accused has failed to rebut

the initial presumption by placing a probable defence. In such

circumstances, both the trial Court and the First Appellate

Court rightly passed the reasoned judgments which do not call

for any interference at the hands of this Court.

13. In that view of the matter, this revision petition

lacks merits and liable to be dismissed. Accordingly, I answer

the point raised above in affirmative and proceed to pass the

following:

ORDER

i) The Criminal Revision petition is dismissed;

ii) The order of the sentence passed by the IV Additional Civil Judge and JMFC, Hassan in C.C.No.6045/2015 dated 31.07.2019, which was confirmed by the III Additional District and Sessions Judge, Hassan in Crl.A.No.244/2019 dated 30.04.2022, is hereby upheld.

iii) Three months time is granted to the revision petitioner/accused to deposit the fine amount before the trial Court (including the amount already deposited by the

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accused) from the date of receipt of the certified copy of this order.