Sri T K Rudradeva Vs Sri Vijaya Kumar

THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDERS ON SENTENCE PASSED IN C.C.NO.647/2020 DATED 12.08.2022 PASSED BY THE ADDL.SENIOR CIVIL JUDGE AND J.M.F.C AT K.G.F AND ALSO JUDGMENT OF CONVICTION AND ORDER PASSED IN CRL.A.NO.49/2022 DATED 04.03.2023 PASSED BY THE III ADDL.DISTRICT AND SESSIONS JUDGE, KOLAR (SITTING AT K.G.F) AND ACQUIT THE PETITIONER FOR THE OFFENCE P/U/S 138 OF THE N.I ACT.

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THIS PETITION, COMING ON FOR ORDERS, 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 of conviction and sentence dated 12.08.2022 passed by Additional Senior Civil Judge and JMFC., K.G.F., in C.C.no.647/2020 and confirmed in judgment dated 04.03.2023 passed by III Additional District and Sessions Judge at Kolar (Sitting at K.G.F.) in Crl.A.no.49/2022, this Revision Petition is filed.

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Sri Srinatha B.V., learned counsel appearing for Sri Nanjunda Gowda M.R., Advocate for petitioner-accused submitted that Revision Petition was filed challenging

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HC-KAR

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concurrent judgments convicting accused for offence punishable under Section 138 of Negotiable Instruments Act, 1881 ( N.I. ACT ).

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It was submitted that respondent-complainant had filed private complaint alleging that accused had approached him on 10.05.2019, obtained Rs.2,00,000/- as hand loan for his daughter's wedding reception which was celebrated on 17.05.2019 and issued cheque no.429633 dated 10.06.2020 for Rs.2,00,000/- drawn on Canara Bank, Singasandra Branch, Bengaluru, towards repayment, which when presented returned dishonoured with endorsement ' funds insufficient ' on 18.06.2020 and though demand notice dated 30.07.2020 got issued was served on 11.08.2020, accused failed to repay amount demanded within time and thereby committed offence punishable under Section 138 of N.I. Act.

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After appearance, accused denied charges and

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sought trial. Complainant examined himself as P.W.1 and got marked Exs.P-1 to P-10. Thereafter incriminating material was explained to accused, which he denied, and his statement

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HC-KAR

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under Section 313 of Cr.P.C. was recorded. Thereafter accused deposed as D.W.1, but did not mark any documents.

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Though accused had substantiated his defence denying borrowing from complainant and issuing cheque to complainant towards repayment and had also pointed out omission to mention name of person, who had accompanied complainant at time of transaction with accused, admission about not knowing accused prior to transaction as well as his assertion that cheque in question issued to one Anand was misused by complainant, Trial Court without proper appreciation passed order of conviction. It was submitted even finding of Appellate Court was also without proper re-appreciation, leading to this Revision Petition. It was submitted impugned judgments suffered from perversity and sought for allowing Revision Petition.

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On other hand, Sri Vijaya Kumar, learned counsel for respondent - complainant opposed petition and submitted that both Courts had concurrently held against accused and there was no scope for interference in Revision Petition.

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HC-KAR

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Heard learned counsel and perused impugned

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judgment and copy of deposition made available for perusal of this Court by learned counsel for respondent.

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At outset it is seen that this Revision Petition is by accused challenging concurrent findings convicting him for offence punishable under Section 138 of N.I. Act. Challenge is on ground of perversity of findings, firstly, insofar as inferring that issuance of Ex.P-1 cheque was towards discharge of legally enforceable debt.

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Said contention is sought to be bolstered on basis of admission by P.W.1 in cross-examination that prior to transaction in question, he was not acquainted with accused and failure to mention name of person, who had accompanied him at time of transaction in demand notice, but stated in deposition. It is also contended that except cheque in question there were no other documents to substantiate lending which would cast grave doubt about transaction and upset presumption under Section 139 of N.I. Act.

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A perusal of cross-examination of P.W.1 in complete, would reveal complainant had stated accused was

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HC-KAR

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accompanied by Venkatachalapathy, who was from same village and had introduced accused to him.

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It is also elicited that at time of lending complainant had sought for some guarantee, but Venkatachalapathy had assured that he would be guarantee and there was no requirement of anything else. Thus, there is sufficient explanation about complainant lending money to accused, despite not knowing him earlier. Insofar as failure to mention name of Venkatachalapathy in demand notice, same cannot be stated to be material omission to disbelie deposition of complainant.

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Apart from above, it is contended that cheque in question was given to one Anand son of B.C.Govindappa and said Anand in collusion with complainant has mis-used cheque for filing present case, but without examining said Anand. There is no material except suggestions which are denied, to substantiate said assertion. While passing impugned judgment both Courts have taken note of defence that cheque was issued to Anand to note admission about signature of accused on Ex.P-1 cheque and since it bore name of complainant and there

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HC-KAR

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was no dispute about handwriting on cheque, they rightly extended presumption under Section 139 of N.I. Act in favour of complainant.

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It is settled law that said presumption though rebuttable cannot be upset by mere suggestions, which are denied. In absence of probablising defence taken, impugned judgment of conviction of petitioner on basis of presumption would be in accordance with law. Besides, it is seen that both Courts have appreciated entire evidence on record and arrived at reasoned conclusions and cannot be stated to be suffering from perversity. Petition is sought to be propped up on hypertechnical contentions. No grounds to interfere, Revision Petition is dismissed.

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Sd/(RAVI V HOSMANI) JUDGE

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HNM List No.: 1 Sl No.: 3

Sri T K Rudradeva v. Sri Vijaya Kumar

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Sri T K Rudradeva v. Sri Vijaya Kumar

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