Sanjeevappa R Vs City Corporation, Shivamogga

THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C (438 OF BNSS) PRAYING TO ALLOW THIS PETITION AND SET ASIDE THE JUDGMENT OF CONVICTION, SENTENCE AND FINE PASSED IN C.C.NO.1206/2021 DATED 04.10.2023 BY THE I ADDL.SENIOR CIVIL JUDGE AND C.J.M SHIVAMOGGA AND THE ORDER PASSED IN CRL.A.NO.170/2023 PASSED BY THE LEARNED III ADDL. DISTRICT AND SESSIONS JUDGE SHIVAMOGGA DATED 01.02.2025 AND CONSEQUENTLY SET THE ACCUSED AT HIS LIBERTY FOR THE ALLEGED OFFENCE P/U/S 138 OF N.I ACT.

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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:41717 CRL.RP No. 658 of 2025

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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 of conviction, sentence and fine dated 04.10.2023 passed by I Addl. Senior Civil Judge & CJM, Shivamogga and judgment dated 01.02.2025 passed by III Addl. District & Sessions Judge, Shivamogga, in Crl.A.no.170/2023, this Revision Petition is filed.

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Sri D.C.Jagadeesh, learned counsel for petitioner submitted Revision Petition is by accused against concurrent findings. It was submitted on an allegation that petitioner (accused herein) was in business of advertisements by erecting hoardings within jurisdiction of Shivamogga City Corporation and was due to pay a sum of Rs.1,66,122/- towards advertisement fee for year 2015-16 to said Corporation and a likesum for year 2016-17 and on demand had issued a cheque bearing no.020380 dated 02.11.2016 for Rs.1,66,122/- drawn on Axis Bank, Shivamogga Branch, Shivamogga, which when presented for collection on 19.01.2017 returned dishonoured on same day with shara 'Funds Insufficient' and thereafter even when respondent - complainant had got issued demand notice

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NC: 2025:KHC:41717 CRL.RP No. 658 of 2025

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HC-KAR

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which was duly served, accused had failed to make payment thereby committed offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, ' ACT '), a complaint was filed under Section 200 of Cr.P.C.

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On appearance, accused had denied charges and sought to be tried. Thereafter complainant got himself examined as P.W.1 and got marked Exs.P-1 to P-8. In his statement recorded under Section 313 of Cr.P.C. accused denied incriminating material and did not lead rebuttal evidence.

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It was submitted petitioner had contended that there was no legally enforceable debt and that respondent - complainant had resorted to filing of private complaint instead of proceeding for recovery of advertisement fee used as per provisions of Corporation Act. And both Trial Court as well as Appellate Court without proper appreciation passed impugned order of conviction. Same were unsustainable in law, and therefore, sought for allowing Revision Petition.

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Heard learned counsel for petitioner and perused

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impugned judgment.

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NC: 2025:KHC:41717 CRL.RP No. 658 of 2025

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HC-KAR

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A bare perusal of impugned judgments would reveal both Trial Court as well as Appellate Court have on detailed examination of entire material on record passed reasoned order of conviction. Only defence put up by accused is denying legally enforceable debt. However, it is noted by Trial Court there was no dispute by accused about issuance of cheque and complainant produced statement of advertisement and fee details as per Ex.P-8, which would substantiate that accused was due for certain amounts to respondent. Though it is contended Ex.P1 - cheque was taken by force and not towards any legally enforceable debt, there is no complaint filed. Admittedly cheque was presented for collection and returned dishonoured. Issuance of demand notice, its service on accused and failure of accused to make payment within time as provided under Section 138 of Act are not in dispute. Trial Court and Appellate Court have extended benefit of presumption available under Section 139 of Act.

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It is noted by First Appellate Court except suggestion that complainant had not informed accused about fee to be paid to Corporation, there is no material elicitation. It

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NC: 2025:KHC:41717 CRL.RP No. 658 of 2025

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HC-KAR

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is suggested Ex.P1 - Cheque was issued as a security. It also

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noticed that accused had failed to reply to demand notice.

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Under such circumstances, when defence set up by accused would be insufficient to upset presumption available to holder of a cheque under Section 139 of Act, order of conviction by Trial Court and Appellate Court would be proper.

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As per ratio laid down by Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander & Anr. reported in (2012) 9 SCC 460, revision can be entertained only in case of findings of Courts suffer from perversity or are being contrary to provisions of statute. Since no such ground is prima facie established. Hence, I do not find any ground to entertain Revision.

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10. Revision Petition is dismissed.

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In view of dismissal of Revision Petition,

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I.A.no.1/2025 is dismissed.

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Sd/(RAVI V HOSMANI) JUDGE

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HNM

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List No.: 1 Sl No.: 30

Sanjeevappa R v. City Corporation, Shivamogga

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Sanjeevappa R v. City Corporation, Shivamogga

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