Petitioner filed a revision petition challenging conviction and sentence for cheque dishonour under Section 138 NI Act. Court held presumption under Section 139 NI Act stands unrebutted and dismissed the petition.
The Criminal Revision Petition is dismissed. No change in conviction and sentence.
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CRL.RP No. 326 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY CRIMINAL REVISION PETITION NO. 326 OF 2021
BETWEEN:
SRI HULIRAMAIAH @ RAJU S/O LATE CHIKKARAMAIAH AGED ABOUT 48 YEARS R/AT NO.156, 2ND FLOOR, 4TH CROSS SMT. SHARADAMMA AND RAMAIAH NILAYA BILEKAHALLI, BANNERGHATTA ROAD BANGALORE - 560 076.
…PETITIONER
(BY SRI. VIJAYAKUMAR S.,ADVOCATE)
AND:
Digitally signed by C MALATHI Location: High Court of Karnataka
SRI C MANJAPPA S/O CHINNE GOWDA AGED ABOUT 51 YEARS R/AT NO.68, 2ND CROSS ROAD BILEKAHALLI, BANNERGHATTA ROAD BANGALORE - 560 076.
(BY SRI.T.S. VENKATESH., ADVOCATE)
…RESPONDENT
THIS CRIMINAL REVIEW PETITON IS FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE DATED 10.07.2019 IN C.C.NO.6349/2018 PASSED BY THE HONOURABLE XIII ADDL.C.M.M., BENGALURU AND ORDER DATED 15.02.2021 PASSED BY THE LXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-65), BENGALURU IN CRL.A.NO.1638/2019 AND ACQUIT THE PETITIONER BY ALLOWING THE ABOVE PETITION.
CRL.RP No. 326 of 2021
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition under Section 397 of Cr.P.C. is filed by the accused challenging the judgment and order of conviction and sentence passed by the XIII Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.6349/2018 dated 10.07.2019 and the judgment and order dated 15.02.2021 passed by the LXIV Addl. City Civil and Sessions Judge at Bengaluru in
Crl.A.No.1638/2019.
The complainant/respondent and accused/petitioner
are known to each other. The accused had borrowed a sum of Rs.2,85,000/- from the petitioner for the purpose of business and had executed a loan agreement dated
01.03.2017 in favour of the complainant and also had
CRL.RP No. 326 of 2021
issued two post dated cheques towards repayment of the loan borrowed by the accused. The accused had requested the complainant to present the cheque for realization after five months. Accordingly, the complainant had presented the cheque bearing No.323707 dated 16.10.2017 for a sum of Rs.2,85,000/- issued by the petitioner and the drawee bank had returned the same with the bankers endorsement ‘funds insufficient’. After receiving the memo regarding dishonour of the cheque in question the respondent/complainant got issued a legal notice to the petitioner and inspite of service of the same,
the petitioner had not complied the demand made in the legal notice nor had issued any reply to the same. It is under these circumstances, the respondent/complainant had filed a complaint under Section 200 of Cr.P.C. for an offence punishable under Section 138 of the Negotiable Instruments Act.
CRL.RP No. 326 of 2021
respondent, to substantiate his case had examined himself before the trial court as PW-1 and another witness was examined as PW-2 and he also got marked 10 documents as Exs. P1 to P10. The accused denied the incriminating circumstances available against him during recording his statement under Section 313 of Cr.P.C. and had examined himself as DW-1. The trial court by judgment and order dated 10.07.2019 convicted the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced him to pay a fine of Rs.2,85,000/- and in default, to undergo simple imprisonment for six months.
The said judgment and order of conviction and sentence passed by the trial court was upheld by the appellate court in Crl.A.No.1638/2019 on 15.02.2021. It is in this factual background, the petitioner is before this Court.
document and though post dated cheques were issued on 01.03.2017, they have been presented nearly after six months. He submits that there is a dispute between the respondent and his wife and the cheque in question was stolen by PW-2 from the house of the petitioner. He also submits that the transaction is not reflected in the IT
returns of the respondent.
CRL.RP No. 326 of 2021
facie proved the transaction and the issuance of the cheque and the signature found in the cheque are not seriously disputed by the petitioner. Therefore, the presumption under Section 139 of NI Act arises against the petitioner that the cheque in question has been issued by him to the respondent towards discharge of his legally recoverable debt. The said presumption is not rebutted by the petitioner by raising a probable defence before the trial court and therefore, he is liable to be convicted for the offence punishable under Section 138 of Negotiable Instruments Act. The courts below, after appreciating the oral and documentary evidence available on record, have recorded concurrent finding against the petitioner to the effect that the petitioner has failed to successfully rebut the presumption that arises against him under Section 139 of the Negotiable Instruments Act. The impugned judgment and order passed by the courts below are well reasoned and they do not suffer from any illegality or irregularity which requires interference by this Court. It is trite that unless the petitioner proves that the judgment
CRL.RP No. 326 of 2021
passed by the courts below suffer from illegality or perversity, this Court in exercise of its revisional powers
cannot reverse the same.
The amount in deposit, if any, either before the appellate court or before the trial court is permitted to be withdrawn by the respondent/complainant.
Registry shall transmit the trial court records, forthwith.
Sd/JUDGE
CM
List No.: 1 Sl No.: 37
2 issues framed by the court
Whether the presumption under Section 139 of the Negotiable Instruments Act applies and is rebutted by the petitioner.
Whether the Courts below suffered from any illegality or perversity requiring interference in this revision petition.
Colour shows how this judgement treated each authority
not citedReferred
4 provisions across 2 enactments
SRI HULIRAMAIAH @ RAJU
SRI C MANJAPPA
S VISHWAJITH SHETTY
As recorded by the court registry
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