Sri Lokesh B Vs Chikkamagaluru Nagara Gruha Nirmana Sahakara Sangha Limited

THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONORABLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE AND FINE IMPOSED BY TH PRL. JUDGE FAMILY COURT AT CHIKKAMAGALURU IN CRIMINAL APPEAL NO.214/2022 JUDGMENT DATED 22-092023 AND JUDGMENT IN C.C.NO.2125/2019 DATED 06-122021 PASSED BY THE COURT OF 2ND ADDL.SENIOR CIVIL JUDGE AND JMFC AT CHIKKAMAGALURU, FURTHER BE PLEASED TO ACQUIT THE PETITIONER.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2025:KHC:46382 CRL.RP No. 1574 of 2023

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL ORDER

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Challenging judgment dated 22.09.2023 passed by Prl. Judge, Family Court, Chikkamagaluru, in Crl.A.no.214/2022 confirming judgment dated 06.12.2021 passed by II Addl. Senior Civil Judge & JMFC., Chikkamagaluru, in C.C.no.2125/2019, this revision petition is filed.

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Sri KR Lingaraju, learned counsel for petitioner (accused) submitted that revision petition was against concurrent erroneous findings convicting petitioner for offence punishable under Section 138 of Negotiable Instruments Act, 1881, ('NI Act', for short).

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It was submitted, respondent (complainant) had filed private complaint under Section 200 of Code of Criminal Procedure, 1973 ( 'CrPC' for short) alleging that towards discharge of loan borrowed from complainant, accused had issued cheque no.922384 dated 18.06.2018 for Rs.76,038/-, which when presented for collection, returned dishonoured with endorsement "Funds Insufficient" . And as demand notice dated

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NC: 2025:KHC:46382 CRL.RP No. 1574 of 2023

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HC-KAR

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25.07.2018 got issued by complainant returned as unclaimed and there was failure of accused to repay cheque amount offence punishable under Section 138 of NI Act was committed.

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On appearance as accused pleaded not guilty, matter was set for trial, wherein Secretary of complainant Society was examined as PW.1 and Exhibits P1 to P12, got marked.

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Thereafter, statement of accused under Section 313 of CrPC by appraising him of incriminating material, which was denied. Accused did not choose to lead evidence. On consideration of material on record, trial Court convicted accused and directed him to pay fine amount of Rs.1,00,000/-. Appeal filed by him came to be dismissed, leading to this revision.

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It was submitted impugned judgments suffered from perversity and called for interference. It was firstly submitted, accused had earlier borrowed loan from Society and repaid same. Thereafter, he had accompanied one Pruthviraj as surety for loan borrowed by him from Society and had given

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NC: 2025:KHC:46382 CRL.RP No. 1574 of 2023

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HC-KAR

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cheque in question as security. However, society has misused same, created records about lending of joint loan, got cheque dishonoured and filed false case.

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It was further submitted, there was failure to serve demand notice prior to filing of complaint and lack of effort for recovery of loan amount from borrower also indicated misuse of cheque. On above grounds sought for interference.

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Sri BS Sachin, learned counsel for complainant opposed petition by submitting that both Courts on proper appreciation of material on record, arrived at reasoned findings convicting accused and therefore, there was no scope for interference.

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Heard learned counsel, perused material on record.

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From above, it is seen that this revision petition is by accused against concurrent findings convicting accused for offence punishable under Section 138 of NI Act. Hon'ble Supreme Court in case of Amit Kapoor v. Ramesh Chander

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& Anr. , reported in (2012) 9 SCC 460 , has held scope for interference against concurrent findings would be normally

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HC-KAR

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confined to examining whether findings suffer from perversity or are contrary to provisions of law.

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Insofar as first contention that cheque was given as security as accused was surety for loan obtained by Pruthviraj, it is seen that complainant - society, has produced loan application and sanction as Exs.P.6 and 7, which indicate loan to be obtained jointly by accused along with said Pruthviraj. Loan Ledger Extract produced as Ex.P.12 would substantiate amount due. Said material would sufficiently establish legally enforceable debt.

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Moreover, contention that cheque was issued as security, would be an admission about accused signature on it and its issue to complainant, attracting presumption under Section 139 of NI Act. Bare denial of relationship of creditor and debtor or assertion that cheque was issued as security in absence of specific material to substantiate same would be insufficient to upset presumption. It is also observed, accused did not step into witness box to rebut presumption.

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HC-KAR

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Insofar as contention about failure to issue and serve demand notice prior to filing of complaint, complainant produced demand notice as per Ex.P.3, postal cover as Ex.P.4 showing that notice issued had returned unclaimed. Trial Court observed, PW1 denied suggestion that notice was not served as correct address of accused was not mentioned. It noted except such suggestion, there was no material to establish that notice was sent to wrong address. It is not established that said finding is contrary to material on record.

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Insofar as contention that there was no effort for recovery of loan amount from other borrower, same is recorded only to be rejected, as a lending bank would be at liberty to proceed against any of joint borrowers or surety.

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Thus, none of grounds urged would be sufficient to entertain revision. Revision Petition is therefore dismissed.

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Sd/(RAVI V HOSMANI) JUDGE

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Psg*

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List No.: 1 Sl No.: 34

Sri Lokesh B v. Chikkamagaluru Nagara Gruha Nirmana Sahakara Sangha Limited

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Sri Lokesh B v. Chikkamagaluru Nagara Gruha Nirmana Sahakara Sangha Limited

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