Dismissed

Sri Ubedur Rehaman, v. H.E. Thimmachari

Karnataka HC1 Apr 2024CRL.RP/463/2024

Case brief

AI extract

What is this about?

Dismissing a Criminal Revision Petition challenging a conviction and sentence under S. 138 NI Act, the High Court held that no grounds existed for interference as the lower courts have considered material, evidence supports the presumption of guilt due to the dishonoured cheque, and the sentence is not exorbitant.

What did the court decide?

Revision Petition dismissed; conviction and sentence confirmed.

Sri Ubedur Rehaman, Vs H.E. Thimmachari — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:13146 CRL.RP No. 463 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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CRIMINAL REVISION PETITION NO. 463 OF 2024

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BETWEEN:

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SRI UBEDUR REHAMAN, S/O FASLUR REHAMAN, AGED ABOUT 57 YEARS, OCC: BUSINESS, R/AT J.M. ROAD, MUDIGERE TOWN, MUDIGERE TALUK-577132 CHIKKAMAGALURU DISTRICT.

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…PETITIONER

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(BY SRI SOWRABA JEEVALA L.M., ADVOCATE)

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AND:

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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H.E. THIMMACHARI S/O LATE ERACHARI, AGED ABOUT 64 YEARS, OCC: AGRICULTURIST, R/AT KUVEMPUNAGARA, MUDIGERE TOWN, MUDIGERE TALUK-577132 CHIKKAMAGALURU DISTRICT.

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…RESPONDENT

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THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO ALLOW THIS CRL.RP BY SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 04.01.2024 PASSED IN CRL.A.NO.152/2023 BY THE LEARNED II ADDL.DISTRICT AND SESSIONS JUDGE AT CHIKKAMAGALURU THEREBY DISMISSING THE APPEAL FILED BY THE PETITIONER AND CONFIRMING THE JUDGMENT AND

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2 - NC: 2024:KHC:13146 CRL.RP No. 463 of 2024

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ORDER OF CONVICTION AND SENTENCE DATED 21.07.2023 PASSED IN C.C.NO.1086/2021 BY THE LEARNED PRL.CIVIL JUDGE AND J.M.F.C MUDIGERE THEREBY CONVICTING THE PETITIONER FOR THE OFFENCE P/U/S.138 OF N.I ACT AND SENTENCING HIM TO PAY A FINE OF RS.2,25,000/- TO THE COMPLAINANT IN DEFAULT TO PAY FINE AMOUNT SHALL UNDERGO S.I FOR THREE MONTHS.

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

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ORDER

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This matter is listed for admission and I have heard the learned counsel for the petitioner.

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The factual matrix of the case of the

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complainant before the Trial Court is that accused had purchased total 490 kilograms of pepper for Rs.400/- per kilogram from the complainant worth Rs.1,96,000/-. The accused, in order to pay the said amount had issued a Cheque dated 27.09.2021 for Rs.1,96,000/- and when the Cheque was presented, the same was dishonored with an endorsement, ‘Account Blocked Situation Covered in 2125’

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as per the endorsement dated 29.09.2021. Thereafter, legal notice was issued on 22.10.2021 calling upon the accused to pay the amount through RPAD. Inspite of legal

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notice dated 22.10.2021, the accused neither complied with the order nor replied to the notice. Hence, the complainant filed the complaint and cognizance was taken and the accused was secured and he did not plead guilty. Hence the complainant examined himself as P.W.1 and also got marked the documents as Exs.P1 to P5. On the other hand, the revision petitioner has not adduced any rebuttal evidence and only defence was taken that the complainant used to visit the shop of the accused and he had collected the Cheque only to pay the rent in favour of the owner. Though such defence was taken, in order to prove the said defence, not examined himself and even he did not enter into the witness box.

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The Trial Court also taken note of the defence

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which has been taken and discussed the same in Para No.17 and so also with regard to service of notice in Para No.16 that the petitioner did not examine the postal authority for not serving the notice of Ex.P3 and postal receipt is also marked as Ex.P5 and no reply was given

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and after thought, the petitioner only took the defence of misusing of the Cheque. The Trial Court also in Para No.18 taken note of the fact that, since the accused is running a shop, he is having business knowledge and he is a prudent men. When such being the case, it is improbable to believe the defence of the accused and also taken note of the fact that no defence has been raised regarding writing of Ex.P1-cheque and giving the same by the complainant and even not denied the contents of the document of Ex.P1.

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The Trial Court also in Para No.19, taking note of the judgment of the Apex Court in H. PUKHRAJ VS. D. PARASMAL reported in 2015 17 SCC 368, the judgment in M/S. METERS AND INSTRUMENT PRIVATE LTD. VS. KANCHANA MEHETHA reported in (2018) 1 SCC 560 as well as the judgment in KAUSHALYA DEVI MASSAND

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VS. ROOPKISHORE KHORE reported in (2011) 4 SCC

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593 , ordered to pay an amount of Rs.2,25,000/-, since the transaction is of the year 2021 and this judgment was

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passed in 2023 after lapse of two years of the said transaction. The said sentence to pay fine of Rs.2,25,000/is not exorbitant and the same commensurate with the gravity of the offence and the amount payable by the revision petitioner. The Appellate Court also in the appeal, in detail discussed the material on record and taken note of the transaction between the parties and also considered the case of the revision petitioner. The Apex Court also taken note of the decision of three Judge Bench of Hon'ble Apex Court in M/S. Modi

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Cements Ltd V/s Shri Kuchil Kumar Nandi reported in (1998) 3 SCC and discussed the evidence in detail and also comes to the conclusion that though suggestions were made and not led any rebuttal evidence. In detail discussed in paragraph No.24 and in paragraph No.29 comes to the conclusion that Ex.P1 –Cheque belongs to the account maintained by the accused, the signature found on the said Cheque is that of the accused. The said Cheque returned unpaid as account was blocked and even for issuing of Cheque afterwards blocked the account. All

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these factors were taken note of by the appellate Court. Even relied upon the judgment of the Rangappa’s case with regard to the non-issuance of the reply notice and meticulously perused the material placed on record and except the said suggestion that Cheque was misused nothing is elicited from the mouth of PW1 and also no rebuttable evidence is also led by the accused and rightly drawn the presumption under Section 118 and Section 139 of NI Act. Hence, I do not find any ground to interfere with order of the Trial Court as well as the First Appellate Court. The scope of revision is very limited and this Court can only exercise revisional powers if any material has not been considered by the Trial Court as well as the First Appellate Court. Hence, no ground is made out to entertain the revision petition.

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In view of the discussions, made above, I pass the following:

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ORDER

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The Revision Petition is dismissed .

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Sd/JUDGE

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ST,RHS List No.: 1 Sl No.: 29

Sri Ubedur Rehaman, v. H.E. Thimmachari

Case brief

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Sri Ubedur Rehaman, v. H.E. Thimmachari

Case brief

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