Dismissed

Sri C.V. Srinivasegowda v. Sri M.L. Venkatesh

Karnataka HC3 Feb 2023CRL.RP/357/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal revision petition challenging the conviction and fine for cheque dishonour. The court upheld the lower courts' decision rejecting the defense that the accused had obtained a blank cheque, noting the failure to produce the alleged third party to prove the claim.

What did the court decide?

Petition dismissed; conviction and sentence of Rs.3,05,000/- upheld; accused to deposit balance fine of Rs.1,05,000/- within two months.

Sri C.V. Srinivasegowda Vs Sri M.L. Venkatesh — Cheque Dishonour | Karnataka HC (2023)

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1 - CRL.RP No. 357 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CRIMINAL REVISION PETITION NO. 357 OF 2014

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BETWEEN:

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SRI C.V. SRINIVASEGOWDA, S/O VENKATEGOWDA, AGED 60 YEARS, PROPRIETOR OF DEVEERAMMA STONE CRUSHER, KRISHNA NAGAR, PANDAVAPURA TALUK, MANDYA DISTRICT - 571401.

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…PETITIONER

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(BY SRI. NITHISH K.N., ADVOCATE FOR SRI. K.V. NARASIMHAN, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. M.L. VENKATESH, S/O M. LINGAIAH, AGED 43 YEARS, NO.1203, SHARADA NILAYA, ASHOKNAGAR, MANDYA CITY - 571401.

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…RESPONDENT

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(BY SRI. SRIDHAR C.K., ADVOCATE)

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THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE ORDER DATED: 22.03.2014 PASSED BY THE PRESIDING OFFICE, FTC, MANDYA IN CRL.A.NO.114/2012 AND

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CRL.RP No. 357 of 2014

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ORDER DATED 07.03.2011 PASSED BY THE JMFC, MALAVALLI IN C.C.NO.493/2009.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner has challenged the judgment of conviction dated 07.03.2011 passed by I Addl.Civil Judge and JMFC, Malavalli (henceforth referred to as 'Trial Court') in C.C. No.493/2009 convicting him for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 and the consequent sentence to pay fine of Rs.3,05,000/-. The petitioner is also aggrieved by the judgment dated 22.03.2014 passed by Fast Track Court, Mandya (henceforth referred to as Appellate Court') in Crl.A.No.114/2012 by which the judgment of conviction was upheld.

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The parties shall henceforth be referred to as they were arraigned before the Trial Court. The petitioner was the accused while the respondent was the complainant.

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CRL.RP No. 357 of 2014

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The trial Court records disclose that the complainant and accused were known to each other. The accused had requested the complainant for a hand loan of Rs.3,00,000/- on 05.07.2008 to meet his immediate expenditure and to repay certain debts. In good faith, the complainant paid the said amount and the accused promised to return it on or before 04.01.2009. When the complainant demanded the accused to repay the amount, the accused passed on a cheque for a sum of Rs.3,00,000/- and assured that the cheque would be honoured on its presentation. However, the cheque was dishounoured due to insufficient funds in the account of the accused. The complainant therefore, issued a notice of demand calling upon the accused to pay the amount payable under the cheque. Even after the receipt of the notice, the accused failed to pay the amount, which compelled the complainant to initiate prosecution of the accused for the offence punishable under Section 138 of Negotiable Instrument Act, 1881. The trial Court took cognizance of the offence and issued process to the accused. The accused appeared and was released on bail. His plea was recorded and he pleaded not guilty and claimed to be tried. The complaint was examined as PW-1 and he marked

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CRL.RP No. 357 of 2014

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Ex. P-1 to P-4. The statement of the accused under Section 313 of Cr.P.C. was recorded and he denied the incriminating evidence against him. He led his evidence in defense as DW-1.

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Based on the oral and documentary evidence the trial court held that the accused had committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and convicted him for the said offence and sentenced him to pay fine of Rs.3,05,000/-.

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Being aggrieved by the said judgment, the accused filed Crl.A.No.114/2012.

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The Appellate Court secured the records of the trial court. Heard the counsel for the complainant and the accused and after re-appreciating the evidence on record, dismissed it in terms of the judgment dated 22.03.2014.

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Being aggrieved by the same, the present revision petition is filed.

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Learned counsel for the accused submitted that the

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cheque in question was not drawn favouring, the complainant it was handed over to a person named Ramegowda to be retained

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5 - CRL.RP No. 357 of 2014

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as security for a certain other loan of Rs.50,000/- and that the complainant had misused the said cheque to launch a false prosecution. He also contended that there was difference of ink in the signature of the accused as well as the writings on the cheque signifying that a blank cheque was handed over by the accused and that the complainant had filled it up before presenting it. He therefore, submitted that the presumption under Section 139 or Section 118 of Negotiable Instruments Act, 1881 cannot be drawn in the peculiar facts and circumstances of this case.

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Learned counsel for the respondent on the other hand, contended that the signature of the accused on the cheque in question was not denied by the accused and therefore, the trial court was justified in drawing the presumption under Section 139 of the Negotiable Instruments Act, 1881. He contended that if the cheque in question was handed over to Ramegowda for the purpose of hand loan of Rs.50,000/- then the accused must have examined Ramegowda to establish that defense. He contended that except the self serving statement of the accused, there was no palpable evidence on record to establish the defense of the accused.

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6 - CRL.RP No. 357 of 2014

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I have considered the submissions made by the learned counsel for the accused as well as learned counsel for the complainant and have also perused the records of the trial court and its judgment as well as the judgment of the appellate court.

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The fact that the cheque in question contained the signature of the accused is not seriously contested but on the contrary, it is claimed that the cheque was given to Ramegowda to secure a loan that the accused had allegedly raised from Ramegowda. It is alleged that the complainant had misused the said cheque to launch a prosecution under Section 138 of Negotiable Instruments Act, 1881. In order to buttress this defense, it is claimed that the ink of the entries found on cheque in question differed and therefore the cheque was not drawn in favour of the complainant but was drawn in favour of Ramegowda. However, no attempt was made to secure the presence of Ramegowda before the Court.

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If the accused had admitted his signature on the cheque in question, then it was but natural for the trial court to draw the presumption under Section 139 of Negotiable

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CRL.RP No. 357 of 2014

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Instruments Act, 1881. The accused was bound to establish his defense by summoning the said Ramegowda and to prove the transaction between him and Ramegowda and that the cheque in question was given to Ramegowda. Since no such effort is made by the accused, his defense can only be termed as moon shine and not probable. The trial court and the appellate court have therefore, rightly held that the complainant had proved the guilt of accused beyond any doubt and therefore, were justified in convicting, the accused for the said offence and sentencing him to pay fine of Rs.3,05,000/-. Hence, there is no error warranting interference by this court in a revision petition.

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Learned counsel for the petitioner claimed that a sum of Rs.2,00,000/- is already deposited and therefore, the trial court may be directed to consider this at the time of executing the order of sentence. If the accused has already deposited Rs.2,00,000/out of the fine amount of Rs.3,05,000/-, he shall deposit the balance sum of Rs.1,05,000/- within a period of two months from the date of receipt of the certified copy of this judgment failing which, the

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CRL.RP No. 357 of 2014

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complainant is at liberty to execute the order of sentence in

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accordance with law.

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Sd/JUDGE

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CPN List No.: 1 Sl No.: 36

Sri C.V. Srinivasegowda v. Sri M.L. Venkatesh

Case brief

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Sri C.V. Srinivasegowda v. Sri M.L. Venkatesh

Case brief

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