IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.289/2015 BETWEEN:
Devraj.H.M., S/o Mogappa Shetty, Aged about 38 years, R/o. Hedadal Village, Kuduvalli Post, Chikmagalur Taluk Chikmagalur – 577 101.
(By Sri. Ganesh Shet.H, Advocate-Absent) AND:
Smt. Kumari, W/o. H.V.Jagadish, Aged about 48 years, R/o.Hedadal Village, Kuvalli Post, Chikmagalur Taluk, Chikmagalur – 577101.
(By Sri. Girish B.Baladare, Advocate) ...Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 read with Section 401 of Criminal Procedure Code praying to set aside the judgment and sentence dated 13.6.2013 passed by the II Additional Civil Judge & J.M.F.C., Chikmagalur in C.C. No.631/2010 and judgment dated 27.6.2014 passed by the II Addl. Dist. and S.J., Chikmagalur in Crl.A.No.203/2013 and acquit the petitioner.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
O R D E R The present Revision Petition has been filed by the accused-petitioner challenging the judgment passed by the II Additional District and Sessions Judge, Chikmagalur in Crl.A.No.203/2013 dated 27.06.2014 where under the judgment of II Additional Civil Judge & J.M.F.C., Chikmagalur in C.C.No.631/2010 dated 13.06.2013 is confirmed.
2. I have heard the learned counsel for the respondent-complainant. Learned counsel for the petitioner is not present. Even as could be seen from the order sheet dated 14.08.2017, 25.06.2018, 13.02.2019, 14.06.2019 and 11.07.2019, the learned counsel for the petitioner has not appeared. Since the criminal revision petition cannot be dismissed for default, the same is taken on merits and disposed of by this judgment.
3. Facts of the case are that accused borrowed a sum of Rs.35,000/- for his urgent necessity and for repayment of the said amount, he issued a cheque bearing No.166024 dated 30.07.2009 drawn on Corporation Bank, Magadi Road, Bengaluru and when the said cheque was presented for honouring, it returned with a shara “Funds Insufficient” dated 16.10.2009. Thereafter the same was informed to the accused and again accused requested the complainant to present the said cheque once again in the month of January 2010 and again the said cheque was dishonoured. Thereafter, the complainant has got issued a legal notice on 03.02.2010 through RPAD. It was returned with postal shara as “refused” and thereafter, there was no reply by the accused. As contemplated under the law, the complainant filed the complaint against the accused under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short). Thereafter, the Court below took cognizance and issued summons to the accused. Accused appeared his plea was recorded, he pleaded not guilty, thereafter, the complainant examined himself as PW.1 and got marked six documents as Exs.P1 to P6. Thereafter, the accused was examined under Section 313 of Cr.P.C and he got examined himself as DW.1 and got marked one document as Ex.D1. After hearing both the sides, the Court below convicted the accused under Section 138 of the Act and sentenced him to pay a sum of Rs.45,000/- and out of the fine amount Rs.40,000/- is ordered to be given to the complainant under Section 357(3) of Cr.P.C.
4. Being aggrieved by the said judgment, the present petitioner filed Crl.A.203/2013 before the District Court. The First Appellate Court by judgment dated 27.06.2014 confirmed the judgment passed by the Court below. Challenging the same, the petitioner is before this Court.
5. The main grounds urged by the learned counsel for the petitioner in this petition are that the Court below has grossly erred in coming to the conclusion that the petitioner is guilty of the alleged offence. It is further stated that as on that date, the cheque was not issued to the respondent-complainant for discharge of any debts. It is his further submission that the said cheque has been kept in the house for the use of his mother and the said cheque has been misused by the respondent-complainant. It is further submitted that without giving much weight to the evidence of DW.1, the trial Court has wrongly passed the impugned judgment. On these grounds, he prayed to allow the petition and to set aside the judgments of both the Courts below.
6. Per contra, learned counsel appearing on behalf of the respondent-complainant vehemently argued and submitted that the accused has borrowed a sum of Rs.35,000/- for his urgent necessities and has issued the cheque dated 30.07.2009. Thereafter, the formalities under Section 138 of the Act have been complied and legal notice dated 03.02.2010 was issued and the same has been returned with the postal shara as “refused”. He has not given any reply to the said notice. It is his further submission that he has not disputed the signature at Ex.P1 - cheque, but it is his specific contention that the said cheque has been kept in his house towards the expenses of his mother and the complainant by misusing the same, has filed a false case. He has not rebutted the said presumption. Courts below have rightly drawn the presumption and have come to a right conclusion. No good grounds have been made out to allow the petition. The same is liable to be dismissed. He prays to dismiss the petition.
7. As could be seen from the records accused admits the signature and the cheque - Ex.P1, but it is his specific contention that he had kept the cheque in his house towards the expenses of his mother and the complainant misusing the same, has filed a false case. It is well settled proposition of law by the Hon’ble Apex Court in the case of Rangappa v. Sri. Mohan reported in (2010) 11 SCC 441, wherein it has been observed that at once the cheque relates to the account of the accused and he accepts and admit the signature on the said cheque, then initial presumption as contemplated under Section 139 of the Act has to be raised. It is mandatory presumption and it is the accused who has to rebut the said presumption on preponderance of probabilities. The only contention which has been taken by the petitioner/accused is that the said cheque has been misused by the complainant which has been kept in the house. Though he has produced Ex.D1 – Driving Licence to show that he was residing in Bangalore and if really the said cheque has been misused by the complainant, then under such circumstances, he could have examined his mother for whose benefit the said cheque has been issued. For the reasons best known to the accused the mother has not been examined.
8. Be that as it may, even the accused has not filed any complaint to the police for missing of the cheque. If really the said cheque has been missed, immediately he could have filed the complaint and he has not even intimated the Bank Authorities about the misuse and missing of the cheque.
9. Looking from any angle the evidence which has been produced by PW.1 to the effect that he had kept the signed cheque in his house for the benefit of his mother and he was not even having any loan transactions, the same cannot be acceptable. Even during the course of cross-examination of PW.1 nothing has been elicited to substantiate the said fact.
10. I am conscious of the fact that once the Court has drawn presumption and the said presumption has not been rebutted by the accused and no material has been produced so as to discard the evidence of PW.1-complainant. The only inference that can be drawn by the Court is as against the accused and the offence under Section 138 of the Act stands proved and accused has to be convicted.
11. Under such circumstances, keeping in view the above said facts and circumstances of the case, I am of the considered opinion that the contentions taken up by the learned counsel for the petitioner in this behalf do not survive for consideration.
12. I have gone through the judgments of the First Appellate Court as well as the Trial Court. Both the Courts below, after considering all the material placed on record, have rightly come to the conclusion and the impugned judgments are neither perverse nor illegal and they are liable to be confirmed.
13. Accordingly, the petition is dismissed being devoid of merits Sd/- JUDGE SJK/KG/SSD