Sri. Chandrashekhar B S Vs Sri I.C. Shivanna

SRI I.C. SHIVANNA S/O LATE CHANNABASAPPA, AGED ABOUT 67 YEARS, R/AT ITTAPATTANA VILLAGE, MALLIPATNA HOBLI, ARAKALAGUDU TALUK, HASSAN DISTRICT - 573102.

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…RESPONDENT

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(BY SRI PRASANNA V R., ADVOCATE)

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THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C., PRAYING TO SET ASIDE ORDER PASSED IN CRL.A.NO.111/2022, BY COURT OF PRL. DISTRICT SESSIONS JUDGE AT KODAGU AT MADIKERI ITS ORDER DATED 27.11.2023 AND SET ASIDE ORDER OF CONVICTION C.C.NO.1971/2014 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC COURT AT SOMAVARPET BY ITS ORDER DATED 01.12.2022.

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NC: 2025:KHC:50230 CRL.RP No. 264 of 2024

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HC-KAR

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THIS PETITION IS COMING ON FOR FINAL HEARING , THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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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 27.11.2023 passed by Prl.

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District and Sessions Judge, Kodagu-Madikeri, in Crl.A.no.111/2022 confirming judgment dated 01.12.2022 passed by Prl. Civil Judge and JMFC, Somavarpet, in C.C.no.1971/2014, this revision petition is filed.

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Sri CM Venkata Reddy, learned counsel for petitioner (accused) submitted, petition was by accused against concurrent erroneous findings of conviction for offence punishable under Section 138 of Negotiable Instruments Act, 1881, ('NI Act' for short).

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It was submitted, respondent (complainant) filed private complaint under Section 200 of Code of Criminal Procedure, 1978 ('CrPC' for short) alleging that accused was known to him and for his household necessities, borrowed Rs.1 Lakh on 12.03.2013 assuring to repay same within one month

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NC: 2025:KHC:50230 CRL.RP No. 264 of 2024

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HC-KAR

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and issued cheque no.10090 drawn on Sahakara Bank, Shanivara Sante Branch, for Rs.1 Lakh dated 12.04.2013, which when presented for collection, returned dishonored with endorsement 'insufficient funds' on 06.05.2012. Even when demand notice dated 25.05.2013 got issued by complainant was served on accused on 30.05.2013, accused failed to repay amount, thereby committed offence punishable under Section 138 of NI Act.

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It was submitted, on appearance, accused denied charges and sought trial. Thereafter, complainant examined himself and another as PWs.1 and 2 and got marked Exhibits P1 to P7. And, on appraisal of incriminating material against him, accused denied same and his statement under Section 313 of CrPC was recorded. Thereafter, accused examined himself and another as DWs.1 and 2 and got marked Exhibits D1 to D4. It was submitted, though accused has set-up substantial defence that for very same loan transaction of Rs.1 Lakh, complainant had obtained several signed cheques and had earlier filed CC.no.262/2007 before JMFC, Arakalagudu, which was settled by paying Rs.1,95,000/-. Instead of returning remaining cheques, complainant got filed other

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NC: 2025:KHC:50230 CRL.RP No. 264 of 2024

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HC-KAR

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complaints through different persons, three of which were withdrawn. It was submitted, accused had produced order copy

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in CC.no.2062/2007 as Ex.D1. Without appreciating said defence, trial Court proceeded to hold that complainant was entitled for presumption under Section 139 of NI Act, accused failed to upset same and passed impugned judgment convicting him.

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It was submitted, even appeal filed thereagainst was dismissed without proper re-appreciation, leading to this revision petition. Thus, impugned judgments were contrary to material on record and liable to set aside as perverse. On above grounds, sought for allowing revision petition.

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On other hand, Sri VR Prasanna, learned counsel for complainant opposed revision petition. It was submitted, both Courts concurrently appreciated material on record and arrived at well reasoned conclusions, leaving no scope for interference. On said ground, sought dismissal.

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Heard learned counsel and perused impugned judgments and record.

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NC: 2025:KHC:50230 CRL.RP No. 264 of 2024

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HC-KAR

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This revision petition is by accused challenging concurrent judgments of conviction for offence punishable under Section 138 of NI Act. Challenge is mainly on ground that impugned judgments are contrary to material on record and as such, suffer from perversity.

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While borrowing money from complainant is not disputed, it was contended at that time, complainant had collected several signed cheques as security and in CC.no.262/2007 filed earlier, claim of complainant was settled by accused paying Rs.1,95,000/- as indicated in Ex.D1-certified copy of judgment/order sheet. Thereafter, three other complaints got filed by complainant herein through other persons against accused were dismissed as withdrawn. Thus, Ex.D1 would be sufficient to upset presumption available in favour of complainant. Therefore, for failure to lead any evidence establishing lending of money other than money lent and settled in CC.no.262/2007, present complaint would be untenable. However, while passing impugned judgment, trial Court has observed that nothing material to corroborate or substantiate such defence by accused was elicited in crossexamination of complainant/his witness.

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NC: 2025:KHC:50230 CRL.RP No. 264 of 2024

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HC-KAR

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Moreover, as contended, if complainant had failed to return cheques even after settlement of his dues in CC.no.262/2007, nothing prevented accused herein from issuing instructions to his banker to stop payment. Admittedly, Exs.P3 and 4 - Endorsements indicate reason for dishonor was 'insufficient funds' and not 'stop payment'. Further, accused also did not issue reply to demand notice, which would also lead to inference against him. Merely on ground of earlier case being settled would not by itself, establish or substantiate that issuance of cheque in question was for repayment of very same debt. Thus, impugned findings would not suffer from perversity.

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It is also seen that trial Court as well as Appellate Court have examined facts and circumstances and arrived at reasoned conclusions and same are not shown to be suffering from perversity. No case of perversity is made out.

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Revision petition is devoid of merits and is dismissed .

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Sd/(RAVI V HOSMANI) JUDGE

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AV

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List No.: 1 Sl No.: 49

Sri. Chandrashekhar B S v. Sri I.C. Shivanna

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Sri. Chandrashekhar B S v. Sri I.C. Shivanna

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