Karnataka High Court
Sri H S Muniraju vs Sri H A Bheemanna on 26 March, 2025
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NC: 2025:KHC:12853
CRL.RP No. 1347 of 2016
C/W CRL.RP No. 1348 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO. 1347 OF 2016
C/W
CRIMINAL REVISION PETITION NO. 1348 OF 2016
IN CRL.RP No. 1347/2016
BETWEEN:
SRI. H.S.MUNIRAJU
S/O LATE SUBBANNA
AGED ABOUT 52 YEARS
PROPRIETOR, M/S SOWMYASHREE ENTERPRISES
R/AT HUTHANAHALLI VILLAGE
CHIKKAJALA HOBLI AND POST
BANGALORE NORTH TALUK
BANGALORE-562157
...PETITIONER
Digitally
signed by (BY SRI.L.NARASIMHA MURTHY, ADVOCATE)
REKHA R
Location: AND:
High Court of
Karnataka
SRI.H.A.BHEEMANNA
S/O LATE ANJANAPPA
AGED ABOUT 59 YEARS
R/AT HUTHANAHALLI VILLAGE
CHIKKAJALA HOBLI AND POST
BANGALORE NORTH TALUK
BANGALORE-562157
...RESPONDENT
(BY SRI.V.VISHWANATH SHETTY, ADVOCATE)
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NC: 2025:KHC:12853
CRL.RP No. 1347 of 2016
C/W CRL.RP No. 1348 of 2016
THIS CRL.RP IS FILED U/S.397 AND 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
JUDGMENT DATED 11.08.2016 IN CRL.A NO.335/2015 ON THE
FILE OF THE LXII ADDL. CITY CIVIL AND SESSIONS JUDGE, AT
BENGALURU (CCH-63) BY ALLOWING THIS PETITION AND
ETC.,
IN CRL.RP NO. 1348/2016
BETWEEN:
SRI H S MUNIRAJU
S/O LATE SUBBANNA,
AGED ABOUT 52 YEARS,
PROPRIETOR, M/S SOWMYASHREE ENTERPRISES
RESIDING AT HUTHANAHALLI VILLAGE,
CHIKKAJALA HOBLI AND POST,
BANGALORE NORTH TALUK,
BANGALORE-562157
...PETITIONER
(BY SRI.L.NARASIMHA MURTHY, ADVOCATE)
AND:
SRI H.A BHEEMANNA
SON OF LATE ANJANAPPA,
AGED ABOUT 59 YEARS,
RESIDING AT HUTHANAHALLI VILLAGE,
CHIKKAJALA HOBLI AND POST,
BANGALORE NORTH TALUK,
BANGALORE-562157
...RESPONDENT
(BY SRI.V.VISHWANATH SHETTY, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY
THE ADVOCATE FOR THE PETITIONER PRAYING TO SET
ASIDE THE JUDGMENT DATED 11.08.2016 IN
CRL.A.NO.337/2015 ON THE FILE OF LXII ADDL. CITY
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NC: 2025:KHC:12853
CRL.RP No. 1347 of 2016
C/W CRL.RP No. 1348 of 2016
CIVIL AND SESSIONS JUDGE, AT BANGALORE (CCH-63) BY
ALLOWING THIS PETITION AND ETC.,
THESE PETITIONS, COMING ON FOR HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
ORAL ORDER
These two petitions filed under Section 397 and 401 of Cr.P.C., is by accused challenging his conviction and sentence passed by the trial Court for the offence punishable under Section 138 of N.I. Act in C.C.Nos.16821/2005 and 26825/2005, which came to be confirmed by the Sessions Court by dismissing the appeals filed by him.
2. For the sake of convenience, parties are referred to by their ranks before the trial Court.
3. Since the complainant and accused are common and the facts leading to the filing of complaints are also -4- NC: 2025:KHC:12853 CRL.RP No. 1347 of 2016 C/W CRL.RP No. 1348 of 2016 common, they are clubbed together and disposed of by a common order.
4. It is the case of the complainant that he and accused are residents of the same village and being friends known to each other from the past several years. Accused is a contractor by profession. In the month of April 2004, accused approached the complainant for hand loan of Rs.3,85,000/- promising to repay the same in two instalments in an interval of six months. Accordingly, complainant lend him Rs.3,85,000/- in cash on 20.04.2004. However, accused failed to fulfill his promise and on repeated request and demand by the complainant, accused issued 3 cheques i.e., cheque for Rs.1,85,000/- dated 20.10.2004 and 2 cheques Rs.1,00,000/- each dated 05.04.2005 with an assurance that they would be honoured on presentation. Accordingly, he presented 2 cheques for Rs.1,00,000/- each on due date and cheque for Rs.1,85,000/- in the first week of February, 2005. -5-
NC: 2025:KHC:12853 CRL.RP No. 1347 of 2016 C/W CRL.RP No. 1348 of 2016 4.1 However, all the cheques were dishonoured for "funds insufficient" and "proprietory not marked". Complainant got issued legal notice. However, accused has refused to receive the legal notice and sent it back. He has also not paid the amount due under the cheque and also send reply. Without any alternative, complaint is filed.
5. After due service of summons, accused has appeared and contested the case by pleading not guilty.
6. In CC.No.16821/2005, complainant got himself examined as PW-1 and got marked Exs.P1 to 8.
7. In CC.No.26825/2005, complainant got himself examined as PW-1 and got marked Exs.P1 to 10.
8. During the course of his statement under Section 313 Cr.P.C, accused has denied the incriminating evidence led by the complainant.
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NC: 2025:KHC:12853 CRL.RP No. 1347 of 2016 C/W CRL.RP No. 1348 of 2016
9. In both cases, accused examined himself as DW-1. In CC.No.16821/2005, he has relied upon Exs.D1 to 3.
10. The trial Court accepted the contention of the complainant and convicted the accused.
11. In CC.No.16821/2005, accused is sentenced to pay a fine of Rs.3,70,000/- in default to undergo simple imprisonment for one year. Out of it, Rs.3,45,000/- is awarded as compensation and remaining sum of Rs.25,000/- to be defrayed towards litigation expenses.
12. In CC.No.26825/2005, accused is sentenced to pay a fine of Rs.4,00,000/- in default to undergo simple imprisonment for one year. Out of it, Rs.3,75,000/- is awarded as compensation and remaining sum of Rs.25,000/- to be defrayed towards litigation expenses.
13. Aggrieved by the same, accused filed Crl.A.No.335/2015 and 337/2015 before the Sessions -7- NC: 2025:KHC:12853 CRL.RP No. 1347 of 2016 C/W CRL.RP No. 1348 of 2016 Court. However, they were dismissed confirming the judgment and order passed by the trial Court.
14. Aggrieved by the same, accused is before this Court contending that the impugned judgment and order are against law, facts and probabilities of the case and as such liable to be set aside. The evidence led by the complainant is highly discrepant and unconvincing. The impugned judgment and order is perverse, illegal, arbitrary and not in accordance with law. There is no application of mind. Both Courts have erred in holding that complainant has proved advancing loan of Rs.3,85,000/- and that the cheques were issued towards repayment of the same. Complainant has failed to prove his financial capacity, except his self-serving statement.
14.1 The trial Court has failed to appreciate the fact that accused has borrowed Rs.2,00,000/- from complainant during May 2003 and at that time, 3 blank cheques were issued by way of security. Even though the -8- NC: 2025:KHC:12853 CRL.RP No. 1347 of 2016 C/W CRL.RP No. 1348 of 2016 said amount is repaid, complainant failed to return the blank cheques. Using the same, he has filed false complaints. The punishment imposed is disproportionate to the allegations proved against the accused.
14.2 At the first instance, the complaints were dismissed and accused was acquitted. Complainant challenged the same in Crl.A.No.1646/2006 c/w 1647/2006. It was allowed and case was remanded to the trial Court for reconsideration. After the remand the trial Court convicted the petitioner. Viewed from any angle, the impugned judgment and order are not sustainable and pray to allow the petition and acquit the accused.
15. On the other hand learned counsel for complainant supported the impugned judgment and order and sought for dismissal of the petitions.
16. Heard arguments of both sides and perused the record.
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17. Accused admit the fact that he and complainant are known to each other since a long period. It is not in dispute that the cheques in question are drawn on the account of the accused maintained with his banker and they bear his signature. Therefore, presumption under Section 139 of N.I Act comes into play, placing the initial burden on the accused to prove that they were not issued towards repayment of any legally recoverable debt or liability. Though accused dispute that on 20.04.2004, he has borrowed Rs.3,85,000/- from the complainant and issued the cheques, he has specifically contended that during May 2003, he had borrowed hand loan of Rs.2,00,000/- from the complainant and at that time issued the cheques in question blank by way of security. He has alleged that even though the said loan of Rs.2,00,000/- was repaid, complainant did not return the cheques and misusing them, he has filed false complaints. In the light of the presumption and specific defence unless and until he rebut the presumption by establishing his
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NC: 2025:KHC:12853 CRL.RP No. 1347 of 2016 C/W CRL.RP No. 1348 of 2016 defence, the burden would not shift on the complainant to prove his case.
18. After the cheques were dishonoured, complainant has sent legal notice. In both cases, the said notices are returned to the sender on the ground that accused has refused to receive them. Consequently, he has failed to send any reply. Though during his cross- examination, accused has denied that he has refused to receive the notices, the endorsement on the envelopes prove the said fact. Of course, accused is not disputing his address to which the legal notices were sent. The accused has not chosen to examine the postman to prove that he never refused to receive the legal notice and the endorsement thereon is false. By not receiving the notice and failing to send reply, the accused has lost an opportunity to come up with his defence at the earliest.
19. Speaking with regard to his financial capacity, the complainant has specifically deposed that he is owning
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NC: 2025:KHC:12853 CRL.RP No. 1347 of 2016 C/W CRL.RP No. 1348 of 2016 agricultural land and growing grapes. In fact during his cross-examination, accused has admitted that on several occasions he had borrowed loan from complainant and repaid the same and complainant is having agricultural land measuring 4-5 acres and he is getting decent income. By taking a defence that he had borrowed Rs.2,00,000/- from the complainant, accused is admitting both the financial capacity of the complainant and his necessity to borrow loan.
20. Of course, accused has failed to produce any documents to prove that during 2003 he had borrowed loan and repaid the same to the complainant and that complainant failed to return the subject cheques and went on postponing. If at all the subject cheques were issued for the alleged loan taken during 2003 and the same was repaid, there was no impediment for the accused to instruct the Bank not to honour them and stop payment. That would have been an easy way to safeguard his interest. As admitted by the accused, he has also not filed
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NC: 2025:KHC:12853 CRL.RP No. 1347 of 2016 C/W CRL.RP No. 1348 of 2016 any complaint against the complainant alleging misuse of the cheques.
21. The accused has also taken up a defence that complainant is money lender and he has filed several cases. To evidence this fact, he has relied upon Exs.D2 and 3 which is the complaint filed by him against one M.Nagaraju in CC.No.110/2005 for the offence punishable under Section 138 of N.I Act and his deposition. In fact at the first instance, the trial Court dismissed the complaint on the ground that complainant is a money lender. However, in Crl.A.No.1646/2006 c/w 1647/2006, the said orders were set aside and the matters were remanded to the trial Court for fresh disposal. In the said judgment, it was observed that as held in S.Parameshwarappa and Anr. Vs. Choodappa (S.Parameshwarappa)1, this Court has held that the provisions of Karnataka Money Lenders' Act are not applicable to provisions of Negotiable Instrument Act. Mere fact that the complainant has extended hand 1 ILR 2006 KAR 4287
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NC: 2025:KHC:12853 CRL.RP No. 1347 of 2016 C/W CRL.RP No. 1348 of 2016 loan to some other persons and initiated proceedings is not a ground to disbelieve his case.
22. Thus, the accused has failed to rebut the presumption. However, through the oral and documentary evidence placed on record, the complainant has proved his case. The trial Court as well as the Sessions Court after due appreciation of oral and documentary evidence have rightly convicted the accused. The conclusions arrived at by them are consistent with the evidence on record and this Court finds no justifiable grounds to interfere with the same. In the result, the petitions fail, and accordingly the following:
ORDER
1. Both petitions filed by accused under Section 397 and 401 of Cr.P.C. is dismissed.
2. The impugned judgment and order dated 20.01.2015 in C.C.Nos.16821/2005 and 26825/2005 on the file of XVIII ACMM,
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NC: 2025:KHC:12853 CRL.RP No. 1347 of 2016 C/W CRL.RP No. 1348 of 2016 Bengaluru and judgment and order in Crl.A.Nos.335/2015 and 337/2015 on the file of LXII Addl.City Civil and Sessions Judge, Bengaluru, are confirmed.
3. The Registry is directed to send back the trial Court as well as Sessions Court records along with copy of this order forthwith.
Sd/-
(J.M.KHAZI) JUDGE RR List No.: 1 Sl No.: 51