A cheque-dishonour case where trial and appellate courts convicted the accused despite his claim that the cheque had been given to a third party. The High Court found the presumption unrebutted and no illegality in either court's judgment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:9051 CRL.RP No. 239 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 239 OF 2020
BETWEEN:
…PETITIONER
(BY SRI. SHANKAR H.S.,ADVOCATE)
AND:
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
…RESPONDENT
(BY SRI S.G.SWAMY, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 27.09.2018 PASSED IN C.C.NO.23074/2016 ON THE FILE OF THE JUDGE COURT OF SMALL CAUSES AND XXVI A.C.M.M., AT BENGALURU AND THE JUDGMENT AND ORDER OF
IN CRL.A.NO.2155/2018 DATED 19.12.2019 ON THE FILE OF THE COURT OF LXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BENGALURU CITY (CCH-68) AND FURTHER BE PLEASED TO ACQUIT THE PETITIONER BY ALLOWING THIS REVISION PETITION.
THIS PETITION, COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for revision petitioner and
also the learned counsel for the respondent.
Bank of India, BEL factory campus, Jalahalli, Bengaluru dated 01.07.2016, which was bounced and returned unpaid with an endorsement that “ funds insufficient ” vide bank memo dated 02.07.2016. Thereafter he has issued the legal notice through RPAD on 30.07.2016, the same was served and no reply was given. Hence, the cause of action arisen for filing of private complaint. The accused also appeared before the Trial Court and also denied the allegations made in the complaint. The complainant himself examined as PW1 and got marked documents Ex.P1 to Ex.P5. On the other hand, defendant examined himself as DW1 and got marked Ex.D1 to Ex.D3, but not examined any other witnesses.
documentary evidence available on record, considered the evidence of PW1 and also the documents which have been produced as Ex.P1 to Ex.P5 and taken note of answer elicited from the mouth of PW1. The Trial Court in paragraph No.11 comes to the conclusion that nothing is
elicited in the cross-examination of PW1 that there is no existence of legally recoverable debt payable by the accused to the complainant. The Trial Court also taken note of the defense taken by the accused/revision petitioner that he has not availed any loan from the complainant, but he has given the Cheque to one Virupaksha and he has filed the false complaint. The very factum of issuance of Cheque is admitted by the accused. There is a presumption under Section 138 of Negotiable Instrument Act and also the presumption was not rebutted. Even though took the contention that they gave Cheque to the Virupaksha and said Virupaksha has also not been examined before the Trial Court, the same is also taken note of by the Trial Court in paragraph No.16 that the accused has not taken any legal action against the complainant, though he contend that Cheque was given to the Virupaksha. Even after the receipt of service of notice. Even not given any reply to the said notice. Even he is assuming that he has given the Cheque in favour of Virupaksha, when the notice was issued to him, he ought
to have given reply contending that he has given the Cheque in favour of Virupaksha, not in favour of the complainant. No such reply was also given. All these facts are taken note of by the Trial Court. The appellate Court also on re-appreciation of both oral and documentary evidence available on record, considered the evidence of PW1 and also the documentary evidence of Ex.P1 to Ex.P5 and the document of Ex.D1 to Ex.D3. No doubt certified copy of the order passed in other connected matters are also produced before the Court. The appellate Court having taken note of the document of Cheque which is admitted and also the defense which has been taken before the Trial Court and comes to the conclusion that in order to rebut the evidence of complainant nothing is placed on record except marking of document Ex.D1 to Ex.D3.
vehemently contend that the complainant had misused the Cheque which was given to the Virupaksha. In order to
substantiate this contention no material is placed before the Court. The Court below also considered the evidence available on record. The very contention that both the Courts below fail to appreciate the fact that complainant is a stranger to the accused and there was no any transaction cannot be accepted.
record, particularly the Cheque was issued and also the endorsement was issued as funds insufficient and notice was also issued. No reply was given and only during the cross-examination defense was taken that the Cheque was given in favour of Virupaksha and not to the complainant. In order to accept his contention also no material is placed on record. Hence, I do not find any illegality committed by the Trial Court and also the appellate Court in appreciating both oral and documentary evidence available on record. The judgment of the Courts below not suffers from any legality and its correctness.
ORDER
The Criminal Revision Petition is dismissed.
Sd/JUDGE
RHS
List No.: 1 Sl No.: 33
1 issue framed by the court
Whether the conviction of the accused for cheque dishonour under Section 138 of the Negotiable Instruments Act was legally justified and free from illegality.
2 provisions across 2 enactments
Karthik Kumar K.
Gangaiah
H.P.Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
