Dismissed

Sri Raju H B v. Sri B Shivarajaiah

Karnataka HC20 Feb 2023CRL.RP/359/2019

Case brief

AI extract

What is this about?

This Criminal Revision Petition challenging a conviction under Section 138 of the Negotiable Instruments Act was dismissed by the High Court of Karnataka. The Court upheld the conviction noting that the accused failed to provide evidence to rebut the presumption of lawful consideration and that the lower courts did not commit any error apparent on the face of the record.

What the court decided

AI extract

Sri Raju H B Vs Sri B Shivarajaiah — Cheque Dishonour | Karnataka HC (2023)

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CRL.RP No. 359 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CRIMINAL REVISION PETITION NO. 359 OF 2019

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BETWEEN:

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SRI. RAJU H.B. S/O. GATAPPA, AGED ABOUT 30 YEARS, R/AT C/O. JANI BASAPPA, AKKUR VILLAGE AND POST, KOOTAGAL HOBLI, RAMANAGARAM TALUK, RAMANAGARA DISTRICT- 571 511

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…PETITIONER

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(BY SRI. LAKSHMIKANTH K., ADVOCATE )

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. B. SHIVARAJAIAH S/O. BYALAIAH, AGED ABOUT 33 YEARS, R/AT. NO. 42, 5^TH CROSS, SRINIVAS NAGAR, BANGALORE-560072.

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…RESPONDENT

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(BY SRI. NAGARAJ DAMODAR, ADVOCATE (THROUGH VC))

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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 JUDGMENT AND ORDER DATED 19.07.2016 PASSED IN C.C.NO.6658/2011 BY THE LEARNED XVI A.C.M.M., BANGALORE AND CONFIRMED IN CRL.A.NO.932/2016 DATED 11.02.2019 BY THE LEARNED LXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-65).

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CRL.RP No. 359 of 2019

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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 19.07.2016 passed by the XVI Additional Chief Metropolitan Magistrate, Bengaluru City (henceforth referred to as 'Trial Court' for short) in C.C.No.6658/2011 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and consequent sentence to pay fine of Rs.2,25,000/-. The petitioner has also called in question the judgment dated 11.02.2019 passed by the LXIV Addl. City Civil and Sessions Judge, Bengaluru (CCH - 65) (henceforth referred to as 'Appellate Court' for short), in Crl.A.No.932/2016 by which, the judgment of conviction passed by the Trial Court was upheld.

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The parties shall henceforth be referred to as they

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were arraigned before the Trial Court. The petitioner was the accused and the respondent was the complainant.

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The records disclose that the accused and the complainant were friends and belonged to the same village. The

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CRL.RP No. 359 of 2019

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accused is stated to have sought financial assistance from the complainant to meet his family necessities. The complainant paid a sum of Rs.1,85,000/- to the accused, who promised to repay the same within six months. However, even after six months, the accused failed to pay the money and after pursuing him, he finally handed over the cheque bearing No.580657 dated 05.08.2010 for a sum of Rs.1,85,000/- drawn on the State Bank of India, Bengaluru. The said cheque was dishonoured due to insufficient funds. The complainant caused a notice of demand, which returned unserved, while notice sent through certificate of posting was served upon the accused. However, the accused neither replied to the notice nor paid the amount payable under the cheque in question. Hence, the complainant launched prosecution against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

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The sworn statement of the complainant was recorded and C.C.No.6658/2011 was registered and process was issued to the accused, who appeared and was released on bail. The substance of the accusation was read over to the accused who pleaded not guilty and claimed to be tried. The

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CRL.RP No. 359 of 2019

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complainant was examined as PW.1 and he marked Exs.P1 to P7. The statement of the accused under Section 313 of Cr.P.C. was recorded, who denied the incriminating evidence against him and examined himself as DW.1 and two other witnesses were examined as DW.2 and DW.3 and marked Exs.D1 to D6.

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Based on the oral and documentary evidence, the Trial Court held that the complainant had proved that the accused had committed an offence punishable under Section 138 of the Negotiable Instruments Act and consequently convicted him for the said offence and sentenced him to pay fine of Rs.2,25,000/-.

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Being aggrieved by the said judgment of conviction passed by the Trial Court, the accused filed Crl.A.No.932/2016 before the Appellate Court. The Appellate Court secured the records of the Trial Court, heard the counsel for the accused as well as the complainant and after framing points for consideration, re-appreciated the evidence and dismissed the appeal.

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CRL.RP No. 359 of 2019

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Being aggrieved by the judgments of both the

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Courts, the present revision petition is filed.

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The learned counsel for the petitioner/accused contended that there was no lawful debt payable by the accused to the complainant on the date of drawing up of the cheque and therefore, the Trial Court and the Appellate Court committed an error in convicting the accused based on the presumption under Section 139 of the Negotiable Instruments Act. He also contended that the Trial Court as well as the Appellate Court did not apply their mind to the evidence on record. Further he claimed that the Trial Court and Appellate Court turned blind eye to the requirements of Section 138 of the Negotiable Instruments Act and that both the Courts failed to apply mandatory provisions of law while deciding the case. It is also contended that the complainant did not have financial capacity to pay a sum of Rs.1,85,000/-.

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Learned counsel for the respondent/complainant submits that though it was claimed by the accused before the Trial Court that the cheque in question was given by him to a person named, Hanumaiah, who is the cousin brother of the

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6 - CRL.RP No. 359 of 2019

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complainant, no evidence in that regard was produced. He also contended that the documents produced by the accused as Exs.D1 to D5 did not have any bearing on the facts of this case and therefore, the Trial Court and the Appellate Court were justified in convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

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I have considered the submissions made by the learned counsel for the petitioner/accused as well as the learned counsel for the respondent/complainant. I have also perused the records of the Trial Court, its judgment as well as the judgment of the Appellate Court.

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The fact that the accused and the complainant belong to the same village and were known to each other is not seriously disputed. The Trial Court has considered the defence of the accused that the cheque in question was given to a person named, Hanumaiah, who is the cousin brother of the complainant and held that though the complainant had launched the prosecution of the accused in the year 2011, a belated complaint was filed in the year 2014 accusing the complainant and Hanumaiah of launching a false prosecution

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CRL.RP No. 359 of 2019

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based on a cheque that was drawn in favour of Hanumaiah, who had then organized a chit fund. Except this self-serving statement, the accused did not adduce any evidence to establish that the cheque in question was not drawn towards discharge of any lawful debt. The evidence of DW.2 and DW.3 are also inconsequential, as these persons claim that the cousin brother of the complainant was running a chit and that they were handing over blank cheques to the cousin brother of the complainant to be retained as security. These witnesses admitted that after conclusion of the chit, the cheques given by them were returned to them. However, in so far as the present case is concerned, there is no material to establish that the instant cheque was one of the cheques given to the cousin brother of the complainant, which was not returned.

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In that view of the matter, the Trial Court and the Appellate Court have rightly assessed the evidence on record and have rightly come to the conclusion that the cheque in question was issued towards discharge of a lawful debt. There is no error apparent on the face of the record warranting interference of this Court in a revision petition under Section 397 of Cr.P.C.

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CRL.RP No. 359 of 2019

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Hence, this revision petition lacks merit and is

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dismissed .

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The Registry is directed to forthwith return the Trial Court as well as the Appellate Court records.

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Sd/JUDGE

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PMR List No.: 1 Sl No.: 26

Sri Raju H B v. Sri B Shivarajaiah

Case brief

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Sri Raju H B v. Sri B Shivarajaiah

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