Karnataka High Court
Sri M.Rama Kharvi vs Ramachandra on 21 January, 2014
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JANUARY 2014
BEFORE
HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO.21 OF 2010
BETWEEN
SRI. M. RAMA KHARVI
AGED ABOUT 44 YEARS
S/O BABU KHARVI
R/AT MOOKADIMANE
POST THARAPATHI
MADIKAL
UPPUNDA VILLAGE
KUNDAPURA TALUK.
... PETITIONER
(By Sri: MAHESH KIRAN SHETTY, ADV.,)
AND
1. RAMACHANDRA
S/O KANNA KHARVI
KANAKANAMANE
KARKIKALI
UPPUNDA VILLAGE
KUNDAPURA TALUK.
2. THE STATE - REPRESENTED
BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE.
... RESPONDENTS
(By Sri: VIGNEHWAR S SHATRI FOR R1)
NASRULLAH KHAN, HCGP FOR R2)
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THIS CRL.RP IS FILED UNDER SEC.397 R/W SEC. 401 CR.
P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
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SENTENCE PASSED BY THE II-ADDL. CIVIL JUDGE (JR. DVN) &
JMFC, KUNDAPURA IN C.C. NO. 3098/2002 DATED 16.11.2007
AND ALSO THE ORDER CONFIRMING THE ORDER OF THE
CONVICTION AND SENTENCE PASSED BY THE FAST TRACK
JUDGE, UDUPI DISTRICT, UDUPI IN CRIMINAL APPEAL NO.
187/2007 DATED 17.12.2009.
THIS CRL.RP HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, PRADEEP D.
WAINGANKAR J., PRONOUNCED THE FOLLOWING:
ORDER
This Criminal revision petition is filed under Section 397 r/w Section 401 of Cr.P.C. praying to set-aside the order of dismissal in Crl.A.No.187/2007, dated 17.12.2009 on the file of Fast Track Court, Udupi District, Udupi and confirming the judgment of conviction dated 16.11.2007 passed in C.C. NO.3098/2002 on the file of II Addl. Court(Jr.Dn.) & JMFC, Kundapura, for the offence punishable under section 138 of N.I. Act.
2. The revision petitioner is the accused in C.C.No.3098/2002 on the file of II Addl. Civil Judge(Jr.Dn.) and JMFC, Kundapura and the respondent is the complainant. The case of the complainant is that for the purpose of business, the accused approached and obtained 3 a loan amount of Rs.25,000/- from the complainant and in order to repay the loan amount, the accused issued a cheque bearing No.0707999 dated 30.4.2002 for Rs.25,000/- drawn on Karnataka Bank Ltd., Uppunda Branch. At the request of the accused, the complainant did not present the cheque quite some time for collection. When the complainant insisted for payment of the cheque amount, the accused revalidated the date of the cheque and assured the complainant to present the same for collection. Accordingly, the complainant presented the cheque on 6.9.2002 through his banker, but, it came to be dishonoured for 'insufficient funds', as such, upon following necessary formalities required under law, complaint came to be filed against the petitioner accused for the offence punishable under Section 138 of N.I. Act. The accused appeared before the Magistrate and denied the charge levelled against him. The complainant in order to prove his case, examined himself as PW-1 and relied upon five documents in support of his case. The accused did not lead his evidence. Upon hearing the arguments and upon consideration of the material placed on record, the learned 4 Magistrate found the accused guilty for the offence punishable under Section 138 of N.I. Act and thereby convicted the accused and sentenced him to pay 35,000/- and in default to undergo simple imprisonment for a period of two months.
3. Aggrieved by the judgment of conviction and sentence passed by the Magistrate, the accused preferred Crl.A.No.187/2007, which also came to be dismissed on merits by order dated 17.12.2009 on the file of Fast Track Judge, Udupi District. Challenging the concurrent findings of both the Courts below, this revision petition is filed by the petitioner accused questioning the legality and correctness of the order.
I have heard both the learned counsel for the petitioner and the respondent.
4. The fact that the accused issued a cheque for Rs.25,000/- for discharge of his liability in favour of the complainant is not in dispute. Even otherwise, the cheque has been produced and marked as Ex-P2. The accused has 5 not denied his signature, which is marked as Ex-P2(a). Though the cheque was issued on 30.4.1999, it was revalidated by correcting the date as 30.4.2002 and for having done so, the accused has put his signature below the date and marked as ExpP2(b). It is seen from the memo issued by Karnataka Bank as per Ex-P3 that the cheque came to be returned for 'insufficient funds'. Thereafter, the complainant issued a legal notice, copy of which is marked as Ex-P4. The notice was served upon the accused as could be seen from postal acknowledgement for having received the notice. Of-course the accused gave a reply as per Ex-P5 stating therein that the cheque has been presented beyond the period of limitation. But as it is seen that the cheque is revalidated by the accused himself by putting his initial and therefore there is no substance in the defence taken by the accused that the cheque was presented beyond the period of limitation. The accused has not led his evidence nor he has produced any documentary evidence, as such, having taken into consideration the material on record, the trial Court has convicted the accused under Section 138 of N.I. Act and sentenced him to 6 pay Rs.35,000/- to the complainant. Even if we go by the order passed by Fast Track Judge in Cr.A.No.187/2007, it is observed that the cheque has been revalidated by putting the date as 30.4.2002 in place of 30.4.1999. The Sessions Judge rightly held that once the issuance of cheque is admitted, it has to be presumed that the accused has issued a cheque towards his liability. It is for the accused to rebut the presumption by giving proper explanation for issuance of the said cheque by placing on record evidence. In the absence of evidence to that effect, it has to be presumed that he issued a cheque towards the discharge of his liability and therefore the Sessions Judge has also rightly confirmed the judgment of conviction and sentence passed by the learned Magistrate. I do not see any reason to interfere with the judgment passed by both the Courts below. Hence, criminal revision petition is dismissed.
Sd/-
JUDGE *mn/-