Sri Madhava Maiya Vs Sri Sundar Ram Nayak

THIS CRL.RP IS FILED U/S.397 R/W 401 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER AND SENTENCE CONVICTION DATED 20.01.2020 PASSED IN C.C.No.2382/2016 AT ANNEXURE-A ON THE FILE OF IV ADDITIONAL CIVIL JUDGE AND J.M.F.C., UDUPI AT ANNEXURE-A AND SET ASIDE THE JUDGMENT AND ORDER DATED 28.07.2022 PASSED BY THE HONOURABLE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI IN CRL.A.No.31/2020 AT ANNEXURE-B AND ETC.,

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IN CRL.RP NO. 1077/2022

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BETWEEN:

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SRI MADHAVA MAIYA

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S/O NARAYANA MAIYA

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AGED ABOUT 57 YEARS R/AT SUSHRAYA GUNDAMI VILLAGE P O SASTHANA

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UDUPI TALUK - 576 101.

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...PETITIONER

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(BY SRI. SRINIVAS C H, ADVOCATE)

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AND:

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SRI SUNDAR RAM NAYAK S/O RAM NAYAK

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NC: 2026:KHC:15636 CRL.RP No. 1071 of 2022 C/W CRL.RP No. 1077 of 2022 CRL.RP No. 1087 of 2022

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3 -

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HC-KAR

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AGED ABOUT 58 YEARS R/AT AT "SEETHARAM" HIG No. 65 II STAGE ANANATH NAGAR MANIPAL 576 104. UDUPI TALUK.

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…RESPONDENT

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(BY SRI SUKESH N J, ADVOCATE FOR SRI H JAYANTHA POOJARY, HCGP)

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THIS CRL.RP IS FILED U/S.397 R/W 401 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER AND SENTENCE CONVICTION DATED 20.01.2020 PASSED IN C.C.No.2231/2016 AT ANNEXURE-A ON THE FILE OF THE HON'BLE IV ADDITIONAL CIVIL JUDGE AND J.M.F.C., UDUPI AT ANNEXURE-A AND SET ASIDE THE JUDGMENT AND ORDER DATED 28.07.2022 PASSED BY THE HONOURABLE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI IN CRL.A.No.29/2020 AT ANNEXURE-B AND ETC.,

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IN CRL.RP NO. 1087/2022

BETWEEN:

SRI MADHAVA MAIYA

S/O NARAYANA MAIYA

AGED ABOUT 57 YEARS R/AT SUSHRAYA GUNDAMI VILLAGE P O SASTHANA UDUPI TALUK - 576 101.

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...PETITIONER

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(BY SRI. SRINIVAS C H.,ADVOCATE)

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NC: 2026:KHC:15636 CRL.RP No. 1071 of 2022 C/W CRL.RP No. 1077 of 2022 CRL.RP No. 1087 of 2022

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HC-KAR

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AND:

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SRI SUNDAR RAM NAYAK S/O RAM NAYAK AGED ABOUT 58 YEARS R/AT AT "SEETHARAM" HIG No. 65 II STAGE ANANATH NAGAR MANIPAL 576 104. UDUPI TALUK

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…RESPONDENT

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(BY SRI SUKESH N J, ADVOCATE FOR SRI H JAYANTHA POOJARY, HCGP)

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THIS CRL.RP IS FILED U/S.397 R/W 401 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER AND SENTENCE CONVICTION DATED 20.01.2020 PASSED IN C.C.No.2227/2016 AT ANNEXURE-A ON THE FILE OF THE HON'BLE IV ADDITIONAL CIVIL JUDGE AND J.M.F.C., UDUPI AT ANNEXURE-A AND SET ASIDE THE JUDGMENT AND ORDER DATED 28.07.2022 PASSED BY THE HONOURABLE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI IN CRL.A.No.30/2020 AT ANNEXURE-B AND ETC.,

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

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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HC-KAR

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ORAL ORDER

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Heard Sri Srinivas C.H learned counsel for the petitioner and learned counsel Sri Sukesh N.J for Sri H.Jayantha Poojary, learned counsel for the respondent.

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These three petitions are filed by the accused in CC Nos.2382/2016, 2331/2016 and 2227/2016 who has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, confirmed by the learned Judge in the First Appellate Court.

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The sentence passed in all these criminal cases

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is tabulated hereunder for easy understanding:

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Sl. No	Criminal Case No.	Criminal Appeal No.	Offence Punishable under Section	Fine Amount	Default sentence
1.	2382/2016	31/2020	138 of N.I Act	2,55,0000/-	6 months imprisonment
2.	2231/2016	29/2020	138 of N.I Act	3,05,0000/-	6 months imprisonment
3.	2227/2016	30/2020	138 of N.I Act	2,55,0000/-	6 months imprisonment

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All the three appeals were dismissed on merits

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and thereafter accused is before this Court.

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HC-KAR

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The facts of the case which are utmost

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necessary for disposal of these petitions are as under:

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5.1 Complainant is said to have paid a sum of Rs.8,00,000/- to the accused and towards the repayment, three cheques were given on three different dates, which on presentation came to be dishonored and there was no compliance to the callings of legal notice, though notice was duly served. There was no reply either.

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5.2 Therefore, complainant initiated action against

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the accused persons by filing complaint under Section 200 of Cr.P.C.

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5.3 Accused in all the three matters appeared and denied the plea.

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5.4 Thereafter, learned trial Magistrate recorded the evidence of the complainant and marked the documents namely dishonored cheques, bank endorsement, copy of the legal notice, postal acknowledgment and statement of account of the complainant. Detailed cross-examination of the complainant did not yield any result. The suggestion

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HC-KAR

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made to the complainant that the cheques were forcibly extracted with the help of Mustafa is denied by the complainant. The police complaint lodged in this regard ended in police filing the B-report.

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5.4 The learned trial Magistrate, noting the relevant aspects of the matter, raised the presumption as is contemplated under Section 139 of the Negotiable Instruments Act, in view of the fact that the cheque is belonging to the accused and signature found therein is that of the accused.

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No doubt, it is a rebuttable presumption. To rebut the said presumption, there is no defence evidence at all. Accused did not choose to step into the witness box nor placed any oral or documentary evidence on record.

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Following the dictum of the Hon'ble Apex Court in the case of Indian Bank Association & Others vs Union of India & Others reported in (2014) 5SCC 590 , Rangappa vs. Mohan reported in (2010) 11 SCC 441 and

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HC-KAR

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Rajesh Jain vs. Ajay Singh reported in (2023) 10 SCC

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148 , the accused was required to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act.

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In the absence of any such defence evidence, order of conviction recorded by trial Magistrate, confirmed by First Appellate Court, needs no interference, that too in the revisional jurisdiction.

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Accordingly, the following:

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ORDER

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Revision Petitions are dismissed .

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Sd/-

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(V SRISHANANDA)

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JUDGE