Dismissed

Narasimharaju H v. R. Govindegowda

Karnataka HC29 Aug 2023CRL.RP/367/2015

Case brief

AI extract

What is this about?

Karnataka High Court dismissed a criminal revision petition challenging a conviction and sentence under Section 138 NI Act. The court held that the accused failed to rebut the presumption of cheque dishonour despite the signature match and lack of documentary defense. Order of conviction confirmed.

What did the court decide?

Revision petition dismissed; judgment of conviction and sentence confirmed.

Narasimharaju H Vs R. Govindegowda — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL REVISION PETITION NO. 367 OF 2015

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BETWEEN:

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NARASIMHARAJU .H, S/O LATE HARLYANNACHAR, AGED ABOUT 57 YEARS, WORKING AT M/S L.G. BALAKRISHNA, AND BROTHERS LTD., MYSORE SOUTH, MYSORE-577 001.

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…PETITIONER

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(BY SMT. MOHANA KUMARI .B.V, ADVOCATE FOR SRI. ABUBACKER SHAFI, ADOVATE)

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AND:

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Digitally signed by RENUKAMBA K G

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Location: High Court of Karnataka

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R. GOVINDEGOWDA, S/O LATE RAMEGOWDA, AGED ABOUT 55 YEARS, OPERATOR, M/S. L.G. BALAKRISHNA AND BROTHERS LTD., MYSORE SOUTH, MSYORE-577 001.

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…RESPONDENT

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(BY SRI. S.A. MARUTHI PRASAD, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 AND 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT/ORDER DATED 28.1.2015 PASSED BY THE V ADDL. DIST. AND S.J., MYSORE IN CRL.A.NO.143/2013 AND JUDGMENT AND ORDER DATED 24.4.2013 PASSED BY THE IV ADDL. I C.J. AND J.M.F.C., MYSORE IN C.C.NO.1617/2010 BY ALLOWING THE ABOVE R.P. AND ACQUIT THE PETITIONER.

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NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

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

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ORDER

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This revision is filed by the revision

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petitioner/accused challenging the judgment of conviction and order of sentence passed by IV Additional I Civil Judge & J.M.F.C., Mysore in CC.No.1617/2010 dated 24.04.2013 and confirmed by V Additional Sessions Judge, Mysore in Crl.A.No.143/2013 vide judgment dated 28.01.2015.

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For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case are that the accused being the friend of the complainant has approached him on 10.08.2009 and borrowed a sum of Rs.75,000/- for his legal necessity agreeing to repay the same in three months. However, he did not repaid the said debt and when complainant has insisted, the accused has issued a cheque dated 01.03.2010 and when the said cheque was presented, it dishonoured for insufficient of

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3 - NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

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funds. A legal notice came to be issued and in spite of service of legal notice accused has not paid the cheque amount and hence, complaint came to be lodged.

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The learned Magistrate has taken cognizance and in pursuance of the summons, accused has appeared and was enlarged on bail. He has also denied accusation under Section 138 of the Negotiable Instruments Act, 1881 (for short “N.I. Act). The complainant was examined as PW1 and one witness was examined as PW2 and complainant has placed reliance on nine documents marked at Exs.P1 to P9. Thereafter, the statement of accused under Section 313 Cr.P.C. was recorded and case of the accused is of total denial. The accused also got examined himself as DW1. However, he has not produced any documentary evidence in support of his contention.

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After having heard the arguments and after appreciating the oral as well as documentary evidence, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of the N.I. Act by

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4 - NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

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imposing a sentence of fine of Rs.77 , 000/- with default sentence.

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Being aggrieved by this judgment of conviction and order of sentence, the accused has filed the appeal before the V Additional Sessions Judge, Mysore, in Crl.A.No.143/2013. The learned Sessions Judge after reappreciating the oral and documentary evidence, has dismissed the appeal by confirming the judgment of conviction and order of sentence passed by learned Magistrate. Being aggrieved by these concurrent findings, the accused is before this Court by way of this revision.

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Heard the arguments advanced by the learned

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counsel for revision petitioner and the learned counsel for respondent. Perused the records.

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The learned counsel for the revision petitioner would contend that both the Courts below have failed to appreciate the oral and documentary evidence in proper perspective and have committed an error in convicting the accused. Hence, he would seek for allowing the revision.

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5 - NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

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Per contra, the learned counsel for the

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respondent would support the judgment of conviction and order of sentence passed by trial Court and confirmed by the appellate Court. He would contend that the cheque and signature have been admitted and presumption is in favour of the complainant which is not rebutted and hence, he would sought for dismissal of the revision.

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Having heard the arguments and after appreciating the oral and documentary evidence, now the following point would arise for my consideration:

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“Whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court are perverse, erroneous and arbitrary so as to call for any interference by this Court?”

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It is the specific contention of the petitioner

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that accused has availed a hand loan of Rs.75,000/- from him assuring him of repayment within three months and when he failed to do so, he has issued cheque under

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Ex.P1. The accused has taken the defense that the cheque does not belong to his account. But to substantiate this case accused has not produced any documents. The signature on the cheque admittedly belongs to the accused which is not under serious dispute. The simple dispute raised by the accused is that cheque does not belongs to him, but he did not disclose how this cheque came in possession of the complainant. The accused in his 313 statement simply asserted that he has not issued the cheque to complainant and did not availed the loan but there is no explanation how the cheque belonging to accused came in possession of the complainant. He is not prepared to explain any of these aspects. The accused though disputes his signature on the cheque when the signature available on vakalath is compared under Section 73 of the Evidence Act it is one and the same. The accused has not taken any steps to dispute that Ex.P1 does not bear his signature. Both the Courts below have appreciated the oral and documentary evidence in proper perspective and have rightly convicted the accused.

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7 - NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

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Further, PW2 who is the Manager has specifically deposed that while opening the account accused has given a model signature and the signature on the cheque tallies with model signature. Hence, it is prima facie establish that the cheque belongs to accused and it bears his signature. No cogent and acceptable rebuttal evidence is produced by the accused so as to draw a probable defense and so as to rebut the presumption. Under such circumstances, both the Courts below have rightly convicted the accused by imposing a reasonable sentence. The judgment of conviction and order of sentence passed by both the Courts below cannot be said to be erroneous or arbitrary so as to call for any interference. Accordingly point under consideration is answered in negative. Hence, revision petition being devoid of any merits, does not survive for consideration. Accordingly, I proceed to pass the following:

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8 - NC: 2023:KHC:30819 CRL.RP No. 367 of 2015

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ORDER

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The revision petition stands dismissed .

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Sd/JUDGE

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DS List No.: 1 Sl No.: 13

Narasimharaju H v. R. Govindegowda

Case brief

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Narasimharaju H v. R. Govindegowda

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