Mr Thyagaraj v Vs Mr B K Usman

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 17.09.2022 IN CRL.A.No.5011/2019 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU, SITTING AT PUTTUR, D.K. AND THE JUDGMENT OF CONVICTION AND SENTENCE DATED 19.02.2019 IN C.C.No.960/2015 PASSED BY THE CIVIL JUDGE AND J.M.F.C., SULLIA, D.K. AND MAY BE ACQUITTED THE PETITIONER/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT.

¶17

2 -

¶18

NC: 2026:KHC:15709 CRL.RP No. 83 of 2023

¶19

HC-KAR

¶20

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶21

CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

¶22

ORAL ORDER

¶23

Heard Sri Rajarama S, learned counsel for the revision petitioner and Sri Harish N.K., learned counsel for the respondent.

¶24

Accused who suffered an order of conviction in C.C.No.960/2015 for the offence punishable under Section 138 of the Negotiable Instruments Act, confirmed in Criminal Appeal No.5011/2019 is the revision petitioner.

¶25

Facts in the nutshell which are utmost necessary for disposal of the present petition are as under:

¶26

3.1. A private complaint under Section 200 of Code of Criminal Procedure came to be filed alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act in respect of a dishonored cheque bearing No. 417921, dated 16.06.2015, drawn on Canara Bank, Sampaje Branch, in a sum of Rs.1,35,000/- which was issued towards the repayment of the legal liability.

¶27

3 - NC: 2026:KHC:15709 CRL.RP No. 83 of 2023

¶28

HC-KAR

¶29

Learned Trial Magistrate after completing the

¶30

necessary formalities secured the presence of the accused and recorded plea. Accused pleaded not guilty. Therefore, trial was held.

¶31

In order to prove the case of the complainant, Sri B.K. Usman has been examined P.W.1. Six documents were placed on record as Exs.P.1 to P.6.

¶32

As against the material evidence placed by the complainant, there is no contra evidence on record either oral or documentary by the accused.

¶33

Cross examination of P.W.1 did not yield any positive material so as to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act.

¶34

Therefore, learned Trial Judge was justified in recording an order of conviction for the offence under Section 138 of the Negotiable Instruments Act, noting the fact that there was no compliance to the callings of notice and cheque marked at Ex.P.1 did belong to the accused and signature found therein is that of the accused and same has been returned with an endorsement ‘Funds Insufficient’.

¶35

4 -

¶36

NC: 2026:KHC:15709 CRL.RP No. 83 of 2023

¶37

HC-KAR

¶38

Being aggrieved by the order of conviction recorded

¶39

by the learned Trial Magistrate, accused filed an appeal before the District Court in Criminal Appeal No.5011/2019.

¶40

Learned judge in the First Appellate Court, after securing the records, heard the arguments of both the parties in detail and on re-appreciation of the material evidence on record, dismissed the appeal. Thereafter, accused is before this Court in this revision.

¶41

Sri Rajarama S, learned counsel for the revision petitioner, while addressing the arguments with regard to the condonation of delay of 25 days in filing the revision petition would contend that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused and sought for allowing the revision petition by condoning the delay.

¶42

Per contra, counsel for respondent opposes the I.A.No.3/2023 as well as the revisional grounds and submits that there is no defence evidence on record nor the conditions of the interim order is complied. Therefore, petition needs to be dismissed.

¶43

5 - NC: 2026:KHC:15709 CRL.RP No. 83 of 2023

¶44

HC-KAR

¶45

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

¶46

Though reasons assigned in the affidavit in support of I.A.No.3/2023 is not sufficient in the interest of the justice, delay of 23 days in filing the revision petition is condoned and revision petition is taken up for arguments for consideration on merits.

¶47

On such consideration of the material on record, it is crystal clear that Ex.P.1 cheque belongs to the accused and the signature found therein is that of the accused.

¶48

According to the accused, the said cheque is misused by the complainant which was given as security.

¶49

To establish the same, there is no material evidence on record. No positive action has also been taken by the accused against the complainant.

¶50

Further, when the defense of misuse of cheque fails, the only inference that can be drawn by the Court is that the cheque is issued for the legally recoverable debt by resorting to statutory presumption available to the complainant under Section 139 of the Negotiable Instruments Act.

¶51

6 - NC: 2026:KHC:15709 CRL.RP No. 83 of 2023

¶52

HC-KAR

¶53

Before this Court, revision petitioner appeared in

¶54

person on last date of hearing and a submission is made that sum of Rs.90,000/- has been deposited before the Trial Court.

¶55

However, according to the counsel for respondent, what is deposited is only sum of Rs.44,935/-.

¶56

Sri Rajaram S, learned counsel for the revision petitioner is unable to justify the submission that there is a deposit of Rs.90,000/-.

¶57

Revision petitioner who appeared through Video Conferencing today would submit that he has given necessary receipt to the briefing counsel.

¶58

Sri Rajaram S, on instruction from the previous briefing counsel would submit that no such deposit is forthcoming in the Trial Court.

¶59

Taking note of these aspects of the matter and also taking note of the fact that there is no defence evidence placed on record, this Court is of the considered opinion that the order of the learned Trial Magistrate, confirmed by the First Appellate Court needs no interference that too in the revisional jurisdiction.

¶60