Karnataka High Court
Sri. G. K. Kempegowda vs Sri. D. Nagesh on 10 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:975
CRL.RP No. 1161 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1161 OF 2024
BETWEEN:
SRI. G. K. KEMPEGOWDA
S/O GADDANA KEMPEGOWDA,
AGED ABOUT 77 YEARS,
R/AT MOTHAHALLI VILLAGE,
KOTHATHI HOBLI,
MANDYA TALUK-571 478.
...PETITIONER
(BY SRI. K R NAGARAJA, ADVOCATE)
AND:
SRI. D. NAGESH
Digitally signed
by DEVIKA M S/O DEVAIAH,
Location: HIGH AGED ABOUT 42 YEARS,
COURT OF R/AT RAMAMANDIRA ROAD,
KARNATAKA
1ST CROSS, HOSAHALLI,
MANDYA CITY-571 606.
...RESPONDENT
(BY SRI. RAJA L., ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W SECTION 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGEMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 29.12.2021 IN CC.NO.163/2021
ON THE FILE OF THE COURT OF THE JMFC-II, MANDYA/TRIAL
COURT AND JUDGEMENT DATED 25.07.2024 IN
CRL.A.NO.6/2022 ON THE FILE OF COURT OF THE II
-2-
NC: 2025:KHC:975
CRL.RP No. 1161 of 2024
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
MANDYA/APPELLATE COURT; ACQUIT ACCUSED FOR THE
OFFENCE U/S 138 OF NI ACT IN CC.NO. 163/2021 ON THE FILE
OF THE COURT OF THE JMFC-II, MANDYA/TRIAL COURT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL ORDER
1. This matter is listed for admission and heard the learned counsel for revision petitioner and also the learned counsel for respondent. The records are received from the Trial Court and also the First Appellate Court and with the consent of both revision petitioner's counsel and also the counsel for respondent, matter is heard.
2. This revision petition is filed against the concurrent finding of Trial Court as well as the First Appellate Court. The Trial Court ordered to pay compensation of Rs.1,75,000/-. In default to pay the fine, the accused shall undergo further simple imprisonment for a period of three months and out of that Rs.5,000/- has to be deprived in favour of the State and remaining amount of Rs.1,70,000/- shall be paid to the complainant. The -3- NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 Trial Court having considered the material on record, particularly Ex.P1 to Ex.P7 accepted the case of complainant for having advanced an amount of Rs.1,50,000/- and Cheque was presented and the same was dishonored. The notice was issued to the very same address in which the petitioner is residing and the same was refused and Ex.P5(a) endorsement is with regard to the refusal and also taken note of judgment of the Apex Court in case of Rangappa V/s Sri.Mohan reported in (2010) 11 SCC 441 regarding presumption is concerned as presumption is rebuttable in nature under Section 139 of N.I Act and the initial burden is on the complainant and also taking into note of the said judgment comes to the conclusion that Cheque is admitted and though denied the signature in the cross-examination of RW1, but not sent the same to the FSL and hence accepted the case and not accepted the case of the accused/revision petitioner and convicted and sentenced. Being aggrieved by the same, an appeal is filed in Crl.A.No.6/2022. The First Appellate Court on re-appreciation of material available on record, -4- NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 comes to the conclusion that admittedly the Cheque in issue belongs to the account pertaining to the accused, but he had taken the contention that Cheque was given to the chit transaction as security and except self serving statement, there is nothing on record to say that the complainant was doing chit transaction as contended by the accused, but accused contended that the chit was for Rs.50,000/- and he has repaid the Cheque amount, but accused not produced any single material on record to say first of all the complainant was doing the chit transaction and also though DW1 deposed before the Court and admitted in the cross-examination that one Kempanna and Ninganna were members of chit and he had not lead any evidence of any member of the said chit transaction and hence not accepted the contention of revision petitioner and confirmed the judgment of the Trial Court.
3. Now, the revision petitioner's counsel contended that the respondent/complainant was not having any financial capacity and with regard to the -5- NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 financial capacity is concerned, he has not placed any document before the Court to show that he was having financial capacity. The counsel would vehemently contend that even assuming that the said Cheque is issued and belongs to the revision petitioner and not established any enforceable debt. The counsel also would contend that the when the Cheque was issued and the same is in respect of chit transaction is concerned. The Trial Court and First Appellate Court committed an error in convicting and sentencing. The counsel also would vehemently contend that there was no any license even to do the said chit business and also contend that the notice was not duly served. The counsel contend that his village is Mothahalli village and in the address it is mentioned as Muthahalli and also counsel contend that the Cheque was issued and the same is blank Cheque. The counsel would vehemently contend that the Cheque issued on 28.01.2012 and the Cheque dated 02.05.2012 which is post dated Cheque and the same was presented in the month of May-2012 and the bank issued on 02.05.2012. All these factors have not -6- NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 been taken note of by the Trial Court and First Appellate Court committed an error in convicting and confirming the revision petitioner and hence, it requires interference by exercising the revision jurisdiction.
4. Per Contra, the counsel appearing for the respondent would vehemently contend that issuance of Cheque is admitted and only contention is taken that Cheque was issued in respect of chit transaction. No material is placed with regard to the chit transaction is concerned. The counsel would vehemently contend that when notice was issued, he has refused and postal endorsement in Ex.P5 is very clear that postman visited on several occasions and ultimately he has refused the receipt of notice and now cannot contend that no notice was served on him. The counsel also would vehemently contend that when the defense was taken that he was running a chit transaction, no documents are placed before the Court to show that the respondent/complainant was running a chit. The counsel would vehemently contend -7- NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 that when he did not repay the amount, the Cheque was presented and the same was dishonored and thereafter only the complaint was filed before the Court. The amount is only Rs.1,50,000/- was advanced and even in the cross-examination of DW1, suggestion was made that he was doing dairy business and also photographs are confronted to him i.e., Ex.P6 and Ex.P7 and the same has been admitted by the DW1 to show that he was having the cow and also supplying the milk to the dairy as well and his case is also that he sold the cow and bullock and out of the said amount, he paid the amount of Rs.1,50,000/-, when such evidence is placed before the Court and also admittedly photo of Ex.P6 and Ex.P7, now cannot contend that he was not having any financial capacity to pay the amount.
5. The counsel would vehemently contend that the Trial Court as well as the First Appellate Court on considering both oral and documentary evidence placed on record, rightly comes to the conclusion that there is a -8- NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 presumption under Section 139 of N.I Act and the same has not been rebutted by leading any preponderance of probabilities and hence it does not requires any interference.
6. Having heard the learned counsel for revision petitioner and also the learned counsel for the respondent and also the contention of the revision petitioner's counsel that he had cited several judgments of this Court in revision petition itself with regard to giving of blank Cheque and the same is in different hand writing, the Court has to take note of the said material on record. Inspite of several citations are relied before the Trial Court and the same has not been considered by the Trial Court and First Appellate Court and it requires interference.
7. Having heard the submissions of revision petitioner's counsel and also the counsel appearing for the respondent and also looking into the material on record, the point would arise before this Court is as under: -9-
NC: 2025:KHC:975 CRL.RP No. 1161 of 2024
1) Whether the revision petitioner has made out the case to exercise the revisional jurisdiction and whether it requires interference?
2) What Order?
8. Having heard the learned counsel for revision petitioner and also the learned counsel for respondent and also on perusal of pleadings before the Trial Court when the complaint is filed under Section 200 of Cr.P.C invoking Section 138 of Negotiable Instruments Act, specific allegation is made against the revision petitioner herein that the complainant and accused are well known to each other since for sometimes. On the basis of the acquaintance and friendship, the accused for his legal necessity, for discharge of his hand loans and for his household expenses, borrowed a sum of Rs.1,20,000/- to the complainant on 28.01.2012 agreeing to repay the said loan amount to the complainant together with interest of 2% per annum within a period of 3 months. It is also
- 10 -
NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 pleaded in the complaint that he had issued a post dated 02.05.2012 Cheque in favour of the complainant for Rs.1,50,000/- and when the same was presented, the Cheque was dishonored and notice was issued and notice was refused and hence, filed the complaint. The Trial Court also taking into note of the complaint and also material took the cognizance and summon the petitioner and he disputed the same and hence, complainant examined himself as PW1 and got marked the subject matter of the Cheque as Ex.P1 and also produced the document of endorsement issued by the bank and notice and also refused the postal cover, photographs, Ex.P6 and Ex.P7. On the other hand, the petitioner examined himself as DW1 and not produced any document. The Trial Court having considered the material on record, particularly taking into note of admittedly, Cheque pertains to the account of the petitioner and though in the cross- examination, DW1 disputed the signature that the signature not belongs to him, but admittedly issuance of the Cheque for chit transaction. It is also the defense of
- 11 -
NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 the petitioner that the said Cheque is issued in respect of the chit fund for Rs.50,000/- and he has taken the chit for Rs.57,000/- but though he admits in the cross- examination that Ninganna and Kempanna are also the subscribers of the said chit and they have not been examined before the Trial Court. Having taken note of issuance of Cheque and admission of the petitioner that the said Cheque was issued in connection with chit transaction, nothing is placed on record except the self statement of the DW1 in his evidence. The other contention is that complainant/respondent was not having any financial capacity and not produced any evidence. In order to substantiate his contention during the course of cross-examination of DW1, even document of Ex.P6 and Ex.P7 are confronted and admitted the same. Apart from that other contention of the petitioner's counsel that notice was not duly served. Having perused Ex.P5, it is very clear that postman went to the house of the petitioner on several occasion and ultimately he has refused to receive the notice and there is an endorsement and when such
- 12 -
NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 being the case, the very contention of the petitioner's counsel that the petitioner is resident of Mottahalli and in the notice is addressed to Muttahalli and the said submission cannot be accepted in view of the endorsement found in Ex.P5(a) that he went to the house of the petitioner on several occasions and ultimately he has refused. The other contention that the Cheque was issued on 28.01.2012 itself, but the very case of the complainant is that when the Cheque was issued he gave post dated Cheque and also on perusal of Ex.P1, Cheque dated 02.05.2012 and hence, the contention of the revision petitioner's counsel that Cheque would have been presented within 3 months from 28.01.2012 also cannot be accepted since Ex.P1 dated 02.05.2012 and specific case is also that he has given the post dated Cheque and when such being the case, the very contention the revision petitioner that no any enforceable debt cannot be accepted.
- 13 -
NC: 2025:KHC:975 CRL.RP No. 1161 of 2024
9. The Trial Court as well as the First Appellate Court having taken note of the material on record and on re-appreciation of both oral and documentary evidence placed on record particularly the documents Ex.P1 to Ex.P7 and in paragraph No.9, the Trial Court discussed with regard to the evidence of the PW1 and also taken note of the principles laid down in the judgment of Rangappa V/s Sri.Mohan reported in (2010) 11 SCC 441 with regard to the presumption is concerned and also taken note of the evidence of DW1 in paragraph No.11 and he admitted the Ex.P5 - notice sent to the petitioner, but refused to receive the same and there is an endorsement and in detail discussion was made in paragraph No.11 regarding the case of the complainant and also taken note of the judgment of M.S.Narayana Menon @ Mani V/s State of Kerala and another reported in AIR 2006 SC 3366 "Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution", but in the case on hand, no such circumstances is warranted since they admitted the
- 14 -
NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 issuance of Cheque and also the Cheque pertains to him and no any preponderance of probabilities rebutting the case of the complainant. When such being the case, I do not find any error committed by the Trial Court in convicting and sentencing the revision petitioner. The First Appellate Court in paragraph No.17 taken note of the fact that admittedly, the Cheque in issue belongs to the account pertaining to the accused and also discussion is made with regard to the contention that he had taken chit transaction that the Cheque was issued in respect of chit transaction and also taken note of the evidence of the respondent/complainant and also the accused and taken note of the fact that though petitioner submits that Cheque issued in favour of chit transaction, he categorically admitted that one Kempanna and Ninganna were members of the chit and he had not lead any evidence with regard to the complainant was running chit transaction and in order to substantiate the same, he would have examined the members of the said chit and the same has not been done and having taken note of the
- 15 -
NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 admission with regard to the Cheque pertains to the petitioner and the signature and also in the cross- examination DW1 denies the signature, but he categorically admitted that Cheque was given in respect of chit transaction is concerned. The Court has to take note of the conduct of the petitioner also that in one breath denying the Cheque that signature not belongs to him and also on the contrary contention is taken that Cheque is given in respect of the chit transaction is concerned. When such material available on record, the First Appellate Court in detail discussed in paragraph No.20 with regard to the defense taken by the petitioner and also the presumption under Section 139 of N.I Act and except self styled statement of the petitioner that Cheque was issued in respect of the chit transaction is concerned, nothing is placed on record and the same is discussed in paragraph No.26 of the judgment of the First Appellate Court. Hence, I do not find any error committed by the First Appellate Court on re-appreciation evidence and not found any perversity in finding of the Trial Court as well as the First
- 16 -
NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 Appellate Court. The very contention of the revision petitioner's counsel that both Courts have committed an error cannot be accepted.
10. The learned counsel for revision petitioner would contend that when the appeal was filed in the year 2022, he was aged about 75 years and now he is aged about 77 years and the Court has to take note of the age of the revision petitioner and it is appropriate to modify the sentence instead of imprisonment and fine, the same has to be modified.
11. Having considered the submissions of the learned counsel for revision petitioner and also the learned counsel for the respondent and also considering the age of the revision petitioner who is aged about 77 years and the same can be modified as, if he fails to pay the amount within 4 weeks from today and then sentence passed by the Trial Court will remains as it is and subject to the payment only, the modification of the order that if he makes the payment then no question of imprisonment.
- 17 -
NC: 2025:KHC:975 CRL.RP No. 1161 of 2024 With this observation, the criminal revision petition is disposed of.
Sd/-
(H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 54