Gautam Constructions Vs Vijaykumar Kundanhalli

GAUTAM CONSTRUCTIONS, REPRESENTED BY ITS PROPRIETOR, MALLIKARJUN BASHETTIYAVAR AGE. 57 YEARS, OCC. BUSINESS, FLAT NO.1201, 12^TH FLOOR, MANTRI GREEN, B BLOCK, MALLESHWARAM, BENGALURU-560003.

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…PETITIONER (BY SRI. NAGARAJ C.KALLOORI AND SRI. RAJESH B. RAJANAL, ADVOCATES)

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AND:

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench

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SRI. RAJASHEKHAR MENASINKAI, S/O. SHANMUKAPPA OCC. AGRICULTURE AND BUSINESS, AGE. 45 YEARS, R/O VIDYANAGAR, HUBBALLI-580021.

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…RESPONDENT (BY SRI. S.S. NIRANJAN ADVOCATE FOR SRI. SHIVASHANKAR R.AMBLI, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 21/07/2017 BY PRINCIPAL CIVIL AND JMFC AT HUBBALLI IN C.C.NO.494/2017 FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND SENTENCING HIM TO PAY A SUM OF RS.7,85,000/- IN THE EVENT OF FAILURE TO PAY THE SAID AMOUNT, HE SHALL UNDERGO IMPRISONMENT FOR A PERIOD OF SIX

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HC-KAR

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MONTH AND SET ASIDE THE IMPUGNED JUDGMENT DATED 09/02/2021 PASSED IN CRIMINAL APPEAL NO.80/2017 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI.

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IN CRL. RP NO.100065/2021: BETWEEN:

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GAUTAM CONSTRUCTIONS, REPRESENTED BY ITS PROPRIETOR, MALLIKARJUN BASHETTIYAVAR, AGE. 57 YEARS, FLAT NO.1201, 12^TH FLOOR, MANTRI GREEN, B BLOCK, MALLESHWARAM, BENGALURU-560003.

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…PETITIONER

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(BY SRI. NAGARAJ C. KALLOORI AND SRI. RAJESH B. RAJANAL, ADVOCATES)

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AND:

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VIJAYKUMAR S. KUNDANHALLI AGE. 45 YEARS, OCC. AGRICULTURE AND BUSINESS, R/O. VISHWESHAR NAGAR, HUBBALLI-580028.

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…RESPONDENT

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(BY SRI. S.S. NIRANJAN AND SRI. SHIVASHANKAR R. AMBLI, ADVOCATES)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 09/02/2021 PASSED IN CRIMINAL APPEAL NO.9/2017 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE AT HUBBALLI SITTING AT DHARWAD AND SET ASIDE THE ORDER DATED 21/07/2027 PASSED BY THE PRINCIPAL CIVIL JUDGE AND AJMFC AT HUBBALLI IN CRIMINAL C.C.NO.493/2017 FOR THE OFFENCES U/S 138 OF N.I. ACT IN THE INTEREST OF JUSTICE.

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THESE CRIMINAL REVISION PETITIONS COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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HC-KAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

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Heard Sri Nagaraj C.Kolloori, learned counsel for the petitioner and Sri S.S.Niranjan for Sri Shivashankar R.Ambli, learned counsel for respondent.

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In these two petitions, revision petitioner is the common accused in respect of complaint filed by respondentRajashekhar and Vijaykumar respectively in C.C.No.494/2017 and 493/2017 respectively. Those two cases were filed for taking action for the commission of the offence under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I. Act’).

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Learned trial Judge after completing the formalities, summoned the accused, recorded the plea and thereafter, held the trial and recorded the evidence of the complainant and based on the documents filed before the Court, which comprised of dishonored cheque, bank endorsement, legal notice and reply notice, convicted the accused for the Offence Punishable under Section 138 of the N.I. Act and sentenced as under:

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HC-KAR

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Sentence in C.C.No.494/2017 is as under:

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“ Acting under section 255(2) Cr.P.C. read with Section 138 of Negotiable Instruments Act, the accused is convicted for an offence punishable under Section 138 of Negotiable Instruments Act.

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The Accused is liable to pay fine of Rs.7,85,000/(Rupees Seven Lakh Eighty Five Thousand only). In the event of failure to pay the above said fine amount, accused shall undergo imprisonment for a period of six months.

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Acting under Section 357(3) of Cr.P.C., out of above said fine amount, a compensation of amount of Rs.7,75,000/- (Rupees Seven Lakh Seventy Five Thousand only) be given to the complainant.

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Out of entire fine amount, Rs. 10,000/-(Rupees Ten Thousand only) has to be remitted to the Government.

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The Office is directed to supply a free copy of this judgment to the accused.”

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Sentence in C.C.No.493/2017 is as under:

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“Acting under section 255(2) Cr.P.C. read with Section 138 of Negotiable Instruments Act, the accused is convicted for an offence punishable under Section 138 of Negotiable Instruments Act.

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The Accused is liable to pay fine of Rs.6,60,000/(Rupees Six Lakh Sixty Thousand only). In the event of failure to pay the above said fine amount, accused shall undergo imprisonment for a period of six months.

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HC-KAR

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Acting under Section 357(3) of Cr.P.C., out of above said fine amount, a compensation of amount of Rs.6,50,000/- (Six Lakh Fifty Thousand only) be given to the complainant.

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Out of entire fine amount, Rs. 10,000/-(Rupees Ten Thousand only) has to be remitted to the Government.

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The Office is directed to supply, a free copy of this judgment to the accused.”

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Being aggrieved by the same, accused filed an appeal before the First Appellate Court in Criminal Appeal No.80/2017 and 79/2017 respectively. Before the First Appellate Court and additional evidence was sought to be placed on record, which was negated by the First Appellate Court and confirmed the conviction and sentence.

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Being further aggrieved by the same, accused is before this Court in these revision petitions.

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Sri Nagaraj C.Kolloori, learned counsel representing the revision petitioner reiterating the grounds urged in the revision petition, vehemently contented that accused is innocent of the offences alleged against him and cheque has been misused by the respective complainants who are respondents in

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HC-KAR

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these revision petitions and therefore, revision petition needs to be allowed.

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He would further contend that to establish that the cheque has been misused, additional evidence was sought to be placed on record before the First Appellate Court, which has not been considered by the learned Judge in the First Appellate Court, though observed that the additional evidence may indicate that the accused is innocent of the offences alleged against him.

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He would further contend that having made such an observation, it was the duty of the First Appellate Court to allow the additional evidence and not allowing the additional evidence on record and disposing of the appeal has rendered the impugned judgments in miscarriage of justice and sought for allowing the revision petitions.

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Per contra, Sri S.S.Niranjan, learned counsel for the complainant in both the cases representing Sri Shivashankar R.Ambli, Advocate on record, supports the impugned judgments.

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He would further contend that when there is no evidence placed on record by the accused before the trial Court,

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HC-KAR

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the learned trial Judge was justified in convicting the accused taking note of the fact that the cheque marked at Exhibit P1 in both the cases belonged to the accused and signature found therein is that of the accused.

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He would further contend that when there is no evidence at all on record before trial Magistrate, there was no scope for taking additional evidence before the First Appellate Court and sought for dismissal of the revision petitions.

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Having heard the arguments of both sides, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that the cheque marked at Exhibit P1 in both the cases belonged to the accused and signature found therein is that of the accused.

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According to the complaint in both the cases, the cheques were given towards the repayment of the legally recoverable debt by contending that accused had financial difficulty. Therefore, he had approached the respective

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HC-KAR

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complainants for financial help and towards the repayment of the said financial help, the cheques in question were issued.

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Contents of reply notice marked Exhibit P4, would make it clear that the complainant was a stranger to the accused. Further, the transactions as alleged by the complainant are denied and it is contented that proprietorship of the accused was closed long back on 30.03.2005 and the cheques have been misused.

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In order to rebut the presumption available to the complainant under Section 139 of the N.I.Act, no oral or documentary evidence were placed on record on behalf of the accused.

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Further, if there is a misuse of the cheque, as contented by the accused, that too in a sum of ₹. 7,75,000/-, no normal prudent person would keep quiet, especially after having caused a reply through an Advocate in not taking any positive action against the alleged misuse of the cheque.

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In the case on hand, according to the accused, in respective complainants are strangers to the accused and in such

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HC-KAR

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a case, a necessary police complaint would have been filed in the normal course. Non-taking of any positive action on the part of the accused would speak volumes about the alleged defence.

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Further, for the reasons best known to the accused, no defence evidence was placed. Therefore, the presumption availed by the complainant has been resorted to by the learned trial Magistrate while convicting the accused.

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No doubt, before the First Appellate Court, additional evidence was placed on record by filing an application under Section 391 of the Cr.P.C.

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If a party to the criminal case has not at all placed any evidence on record at the trial stage, would such a party be permitted to place additional evidence on record for the first time before the First Appellate Court was the question that fell for consideration before the Hon'ble Apex Court in the case of Ajitsinh Chechuji Rathod vs. State of Gujarat and Another.¹ Their lordships, while considering the scope and ambit

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1 (2024) 4 SCC 453

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HC-KAR

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of the consideration of the additional evidence for the first time before the Appellate Court, in paragraph No.8, held as under:

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“8. At the outset, we may note that the law is wellsettled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that nonrecording of such evidence may lead to failure of justice.”

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In the case on hand, since there was no evidence at all placed on record by the accused before the trial Court, seeking permission for the first time to place additional evidence on record before the First Appellate Court was thus rightly rejected by the First Appellate Court.

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Therefore, none of the contentions urged on behalf of the revision petitioner would hold water to set-aside the well-reasoned orders passed by both the Courts, having regard to the scope of the revisional jurisdiction.

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24. According, the following order:

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