Karnataka High Court
N P Jayaprada vs Gopala N on 15 March, 2024
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NC: 2024:KHC:10800
CRL.RP No. 219 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL REVISION PETITION NO. 219 OF 2020
BETWEEN:
N P JAYAPRADA,
AGED ABOUT 40 YEARS,
PHARMACIST,
GOVERNMENT HOSPITAL,
KUNIGAL-572 130. ...PETITIONER
(BY SRI VISHALAXA KADIWAL, ADVOCATE [ABSENT])
AND:
GOPALA N,
S/O LATE G NAGARAJ,
AGED ABOUT 32 YEARS,
R/O C/O WORKING AT STUD FORM,
KUNIGAL-572 130. ...RESPONDENT
Digitally
signed by (BY SRI SHARANADEEP, ADVOCATE FOR SRI RAVI
NANDINI R KUMARA.B.R, ADVOCATE [PH])
Location: High
Court of THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C TO
Karnataka SET ASIDE THE JUDGMENT, CONVICTION AND SENTENCE
PASSED LEARNED PRINCIPAL CIVIL JUDGE (Jr.Dn) AND JMFC
AT KUNIGAL IN C.C.NO.795/2017 DATED 31.01.2019 WHICH
HAS BEEN CONFIRMED BY THE LERANED II ADDITIONAL
DISTRICT AND SESSIONS JUDGE PASSED IN CRL.A.NO.9/2019
DATED 21.12.2019 ALLOW THIS CRIMINAL REVISION
PETITION AND ACQUIT THE PETITIONER IN THE ABOVE CASE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:10800
CRL.RP No. 219 of 2020
ORDER
The matter is posted for Admission. None appears for revision petitioner. Case was filed during January, 2020 and obtained order of suspension of sentence. Thereafter inspite of lapse of four years, the revision petitioner has not effectively prosecuting the case. The revision petition cannot be dismissed for default/non prosecution, therefore, proceeded with the passing of order.
2. Heard the learned counsel Sri Sharandeep, for respondent.
3. This revision petition is filed by the accused in CC No.795/2017 challenging the orders passed by the Courts below dated 31-01-2019 and 21-12-2019.
4. Brief facts of the case for disposal of this revision petition are that, the respondent/complainant is related to accused/ revision petitioner. The accused had borrowed a sum of Rs.3,00,000/- during February 2015 and agreed to repay the said amount within a period of -3- NC: 2024:KHC:10800 CRL.RP No. 219 of 2020 eight months. She did not return the amount. Therefore, complainant insisted her to pay the amount. For discharge of the said loan amount, accused had issued a cheque bearing No.685276 for Rs.3,00,000/- drawn on State Bank of Mysore, Kunigal Branch, dated 16-12-2017. Complainant had presented the cheque for encashment and it was dishonoured with a shara 'funds insufficient'. He had complied with the provisions of Negotiable Instruments Act, and issued notice to accused through RPAD. The notice was duly served on the accused. The accused did not re-pay the amount. However, replied to the said notice denying the contentions of the complainant. Thereafter, the complainant has filed the petition before the concerned JMFC Court alleging that the accused had committed an offence punishable under Section 138 of Negotiable Instruments Act. The JMFC Court, Kunigal, took cognizance of the case and issued process to the accused. The accused pleaded not guilty and claimed to be tried.
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NC: 2024:KHC:10800 CRL.RP No. 219 of 2020
5. To prove his case, the complainant examined PWs 1 and 2 and got marked Exs.P1 to 5. Thereafter, the learned trial Judge examined the accused under Section 313 of Cr.P.C., and her answers were recorded. Accused examined DW1 and got marked Ex.D1 and 2.
6. After hearing both the sides and appreciating the evidence on record, the learned trial Judge found the accused guilty of the offence punishable under Section 138 of Negotiable Instruments Act. Hence she was convicted for the same and sentenced her to pay a fine of Rs.4,00,000/-, in default of payment of fine, she shall undergo simple imprisonment for six months by judgment dated 31-1-2018.
7. Accused had challenged the said judgment before the II Additional District and Sessions Judge at Tumakuru. The learned Appellate Judge, after re- appreciating the evidence on record, dismissed the appeal by the impugned judgment dated 21-12-2019. The same -5- NC: 2024:KHC:10800 CRL.RP No. 219 of 2020 is challenged by the revision petitioner/ accused on the grounds mentioned in the petition.
8. I have gone through the judgments passed by both the Courts below.
9. The defence of the accused/revision petitioner before the trial Court was total denial.
10. Before the trial Court, PW1 has deposed the facts of the case. He was cross-examined by the revision petitioner/accused, but nothing was brought out to discard his evidence, as per the findings of the trial Court. The relevant documents are placed on record.
11. The accused in her evidence, admits that Ex.P1 is belonging to her. But pleads ignorance as to how it came in possession of the complainant. As rightly submitted by the learned counsel for respondent, the endorsement issued by the bank does not show that signature found on Ex.P1 is not of the accused. On the contrary, the cheque was dishonoured for 'insufficiency of the funds'. There are presumptions under Section 118 and -6- NC: 2024:KHC:10800 CRL.RP No. 219 of 2020 139 of the Negotiable Instruments Act, in favour of the holder of the cheque/complainant. Mere denial is not sufficient, unless a cogent evidence is led by the accused to rebut the presumptions available in favour of the complainant.
12. Complainant had examined one of the witness to prove about the payment of the amount. A strange defence was taken by the accused contending that, at the time stated in the evidence of PW1, she was on duty. Admittedly, both the accused and complainant are residents of same town i.e., Kunigal. As rightly noted by the trial Court as well as the First Appellate Court, it cannot be an impossible thing to go out of the office and receive the amount. Therefore, the said defence cannot be a ground for setting aside the well reasoned orders passed by the Courts below.
13. It is also one of the contentions of the accused that the complainant was unable to prove that he had sufficient source of income. The learned trial Judge relying -7- NC: 2024:KHC:10800 CRL.RP No. 219 of 2020 on the judgment of the Hon'ble Apex Court in the case of 1 SRI RANGAPPA VS. MOHAN , held that 'there is no need for the complainant to prove his source of income unless, it is properly rebutted by the accused'. Considering in any angle, the grounds made out in the revision petition are not tenable to interfere in the findings of the Courts below. The said findings are not perverse, illegal or improper to interfere by this Court. Merely, a finding given by the Courts below against the revision petitioner cannot be a ground to hold that it was against law. Hence, this Court do not find any reason to interfere in the said findings.
14. For the aforesaid reasons, I pass the following:
ORDER The revision petition is dismissed.
Send the copy of this order to the Courts below.
Sd/-
JUDGE tsn* List No.: 1 Sl No.: 13 1 (2010) 4 SCC 441