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2025 DAILYLAW 21893 (KAR)

T RAJANNA v. MR RAVI

CRL.RP/139/2016 · 2025-02-11

H P Sandesh

body2025

Judgment text

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- 1 - NC: 2025:KHC:6117 CRL.RP No. 139 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 139 OF 2016 BETWEEN: 1. T. RAJANNA S/O LATE THIMMARAYAPPA, R/AT NAGAPPA BUILDING, OPP. KMF QTRS. D.B.PURA ROAD, RAJANAKUNTE, DIBBUR, BANGALORE-560089. …PETITIONER (BY SRI. RAVINSON M., ADVOCATE) AND: 1. MR. RAVI PROP. SWARNA JEWELS, SHOP NO.65, ARUN COMPLEX, DVG ROAD, BASAVANAGUDI, BANGALORE-560065. …RESPONDENT (BY SRI. R. SRINIVAS, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 25.11.2015 PASSED BY THE LXIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-64) IN CRL.A.NO.329/2015 AND CONFIRMING THE ORDER DATED 04.02.2015 PASSED IN C.C.NO.32121/2011 ON THE FILE OF THE XLII A.C.M.M., BANGALORE. THIS PETITION COMING ON FOR ADMITTED THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6117 CRL.RP No. 139 of 2016 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER 1. Heard The learned counsel for revision petitioner and also the learned counsel for the respondent. 2. This revision petition is filed against the order of conviction and sentence passed by the Trial Court for the offence punishable under Section 138 of N.I Act and also against the order of confirmation passed in Crl.A.No.329/2015. 3. The factual matrix of case of the complainant before the Trial Court that accused and complainant are close friends. The accused took financial assistance from the complainant to the extent of Rs.11,50,000/- in the month of January to March and agreed to return the amount in the month of July 2011 along with interest and accused issued Cheque dated 29.07.2011 to the complainant. When the said Cheque was presented to the bank it was dishonored with an endorsement ‘Opening Balance Insufficient’ and he has issued the legal notice and the same was served. Inspite of service of notice, the - 3 - NC: 2025:KHC:6117 CRL.RP No. 139 of 2016 accused failed to reply and repay the amount and hence, complaint was filed and the Trial Court has taken the cognizance. The accused did not plead guilty and claims trial. The complainant examined as PW1 and got marked Ex.P1 to Ex.P5 and also accused was subjected to 313 statement and also he has been examined as DW1 before the Trial Court. 4. The Trial Court having considered both oral and documentary evidence placed on record taken note of Cheque was issued and admitted the signature, but the contention before the Trial Court that Cheque was given for getting the loan in favour of the accused, but he did not return those Cheques after he availed the loan and the said defense was not accepted. On the other hand, the Trial Court taken note of the evidence of PW1 particularly Cheque, legal notice and postal receipts having served the notice and the Trial Court convicted and sentenced the accused. Being aggrieved by the said order, an appeal also filed before the First Appellate Court. The First Appellate Court also having considered the grounds urged in - 4 - NC: 2025:KHC:6117 CRL.RP No. 139 of 2016 paragraph No.4 of the judgment, comes to the conclusion that appellant/accused admitted the Cheque in question marked at Ex.P1 belongs to his account. When he admitted the signature, then presumption arises and the presumption under Section 139 of N.I Act is rebuttable and no such rebuttable evidence before the Trial Court to accept the theory of defense of the accused. In the defense it is contended that in the year 2006, the complainant collected some blank signed Cheques of the accused under the guise of securing loan from the accused in the bank and the same were misused. In order to substantiate the said contention, except examining himself, nothing is placed on record before the Trial Court. The Trial Court as well as First Appellate Court taken note of the fact that he has availed the loan of Rs.3.35 Crores in the Vijaya Bank in the year 2007 and there was no need to getting the loan in favour of him by securing the loan from any of the bank. Hence, not accepted the case of the appellant. - 5 - NC: 2025:KHC:6117 CRL.RP No. 139 of 2016 5. Being aggrieved by the concurrent finding, present revision petition is filed. The main contention of the counsel appearing for the revision petitioner before this Court is that both the Courts have not accepted the defense and specific case of the revision petitioner that Cheques are given in the year 2007 and the same have been misused and also it is contended that respondent did not issue notice to the proper address of the petitioner. The counsel would vehemently contend that both the Courts have not considered the evidence in a proper perspective. 6. The counsel appearing for respondent also brought to notice of this Court the order dated 09.02.2016 wherein this Court directed to execute a indemnity bond for a sum of Rs.12,20,000/- with one surety for likesum for the satisfaction of the Trial Court and also the revision petitioner undertaken to pay the same with interest 12% p.a from the date of the Cheque till payment, if the revision petition dismissed by this Court and hence counsel also contend that he has to pay the interest on the - 6 - NC: 2025:KHC:6117 CRL.RP No. 139 of 2016 fine amount at the rate of interest 12% p.a from 09.02.2016. 7. 7. Having heard the learned counsel for revision petitioner and also the learned counsel for the respondent and also considering the grounds urged in the revision petition as well as oral submission of the petitioner’s counsel and also the respondent’s counsel, the points that would arise for consideration of this Court are: 1) Whether the Trial Court as well as First Appellate Court committed an error in convicting and concurring that accused committed offence under Section 138 of N.I Act and whether it requires interference of this Court by exercising the revisional jurisdiction? 2) What Order? 8. Having heard the counsels for respective parties and also on perusal of material available on record, the very case of the complainant before the Trial Court that in the month of January to March he had taken the amount - 7 - NC: 2025:KHC:6117 CRL.RP No. 139 of 2016 of Rs.11,50,000/- and he had agreed to return the amount in the month of July-2011 along with the interest, but he did not pay any amount and hence, he has issued the post dated Cheque including the interest to the tune of Rs.11,98,246/- when the same was presented and dishonored, the fact that notice was also issued by the complainant. The Trial Court also taken the cognizance after filing of the complaint and both the Courts have relied upon the document of Ex.P1-Cheque and the same is not disputed. Hence, the Court has to presume that there was a transaction. In order to rebut the presumption, the accused has to lead cogent evidence before the Court and nothing is elicited in the cross- examination of PW1 with regard to witness that those Cheques are given in the year 2006 itself since he took the specific contention that those Cheques are given to get the loan on behalf of the accused from the bank. Both the Courts taken note of the fact that in the year 2007 itself, the accused borrowed the loan of Rs.3.25 Crore from the Vijaya bank and also nothing is elicited in the cross- - 8 - NC: 2025:KHC:6117 CRL.RP No. 139 of 2016 examination of PW1 to accept the defense of the revision petitioner. Apart from that when the Cheque was issued and admitted in the absence of any plausible defense and preponderance of probability in favour of the petitioner, question of exercising the revisional power does not arise. The Court can exercise the revisional power only if finding is not legal and the reasoning is perverse and if any order suffers from legality and correctness only Court can exercise revisional jurisdiction and both the Courts can taken note of the evidence available on record, both oral and documentary evidence. Hence, I do not find any ground to exercise the revisional jurisdiction. 9. The counsel appearing for respondent brought to notice of this Court the conditional order passed on 09.02.2016 to execute a indemnity bond for a sum of Rs.12,20,000/- that is the fine amount and ordered to pay the compensation and if not successful in the revision petition, he shall pay the interest 12% p.a since undertaking was given before this Court and there was no any order to deposit the amount while suspending the - 9 - NC: 2025:KHC:6117 CRL.RP No. 139 of 2016 sentence. When such order has been passed and this Court not found any infirmity in the order of the Trial Court, the petitioner is directed to pay the interest at 12% p.a as undertaken on the amount of Rs.12,20,000/- vide order dated 09.02.2016. 10. In view of the discussions made above, I pass the following: ORDER i) The Revision Petition is dismissed. ii) The Revision Petitioner is directed to pay interest at 12% p.a as undertaken and execute indemnity bond for sum of Rs.12,20,000/- before the Trial Court in terms of order dated 09.02.2016 passed by this Court. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 69