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CRL.RP No. 76 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2023 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ CRIMINAL REVISION PETITION NO. 76 OF 2020
BETWEEN:
SRI. VENKATARAMANA PAI .G.N, AGED ABOUT 46 YEARS S/O SRI. G.R. NAGARAJ, R/O BIDARAGODU, BEGARU POST, BEHIND GOVERNMENT SCHOOL, TENGINAMANE, THIRTHAHALLI TALUK-577 432. …PETITIONER (BY SRI. K. S. GANESHA, ADVOCATE)
AND:
SRI. K.N. SUBRAMANYA, AGED ABOUT 52 YEARS, S/O LATE SRI. NAGENDRAIAH, R/O KAVALAGERE, NEELANDUR VILLAGE, NALLURU POST, SRINGERI TALUK, CHIKKAMAGALURU DISTRICT-577 139. …RESPONDENT (BY SMT. K.M. ROHINI, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT DATED 28.10.2019 PASSED BY THE 2ND ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU IN CRL.A.NO.42/2019 AND JUDGMENT DATED 17.01.2019 PASSED BY THE CIVIL JUDGE AND JMFC, SRINGERI IN C.C.NO.232/2014 IN CONVICTING THE PETITIONER AND DIRECT THAT THE PETITIONER BE ACQUITTED.
THIS CRL.RP COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA
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CRL.RP No. 76 of 2020
ORDER
This revision petition is filed challenging the judgment of conviction dated 17.01.2019 passed by the Civil Judge and JMFC at Sringeri in C.C.No.232/2014, by which, the petitioner was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act, 1881' for short) and was sentenced to pay a fine of Rs.1,80,000/-. The petitioner has also challenged the judgment dated 28.10.2019 passed by the II Additional District and Sessions Judge, Chikkamagaluru in Crl.A.No.42/2019, by which the judgment of the trial Court was upheld.
The parties shall henceforth be referred to as they were arraigned before the trial Court. The petitioner was the accused.
The records of the trial Court disclose that the accused borrowed a sum of Rs.2,00,000/- from the complainant on 15.07.2013 and towards repayment of the loan, he passed on a cheque bearing No.936169 drawn on Karnataka Bank Ltd, Begur Branch and instructed the complainant to present it after two months from the date marked on the
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CRL.RP No. 76 of 2020
cheque. Based on such instructions, the complainant presented the cheque on 26.09.2013 which however was dishonoured as the account was closed. The complainant therefore caused a notice on 26.09.2013, which was served upon the accused. However, the accused did not reply or repay the amount payable under the cheque in question. The complainant therefore initiated proceedings for prosecution of the accused under Section 138 of the NI Act, 1881. The trial Court recorded the pre-summoning evidence of the complainant and registered C.C.No.232/2014 and issued process to the accused, who appeared and was released on bail. The substance of the accusation was read over to the accused who pleaded not guilty and claimed to be tried. The complainant was examined as PW.1 and he marked Exs.P1 to P9. The statement of the accused was recorded under Section 313 of Cr.P.C. and thereafter, he led his evidence as DW.1.
Based on the oral and documentary evidence, the trial Court held that the accused failed to establish that he had borrowed a loan in the year 2010 from the complainant and had repaid it. It also held that the defence of the accused that the complainant was hiring the lorry owned by the accused for
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transportation of areca nut from Sringeri to Shivamogga and that the complainant had taken a signed blank cheque for security purpose, was not established. Since the accused admitted his signature on the cheque in question and as the defence set up by the accused was not probable, the trial Court convicted him for the offence punishable under Section 138 NI Act, 1881 and sentenced him to pay fine of Rs.1,80,000/-, after deducting a sum of Rs.25,000/- paid to the complainant during the course of the trial. Being aggrieved by the said judgment of conviction, the accused filed Crl.A.No.42/2019, which also was dismissed.
Being aggrieved by the above, the present revision petition is filed.
Learned counsel for the accused submitted that the complainant did not have any source of funds to pay a sum of Rs.2,00,000/-. He also claimed that under Section 269 SS of Income Tax Act, 1961 (hereinafter referred to as 'IT Act, 1961' for short), payment of more than Rs.20,000/- by cash was not permissible. Further he claimed that except the self serving statement that the accused had raised a loan from the
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CRL.RP No. 76 of 2020
complainant, there was no material placed on record that the accused had raised a loan from the complainant.
Learned counsel for respondent is absent and therefore, this Court did not have the benefit of his arguments.
Be that as it may, the defence of the accused that he had drawn the cheque favouring the complainant to be retained as security for the transportation of areca nut, established that the signature on the cheque at Ex.P1 was affixed by the accused himself. The accused was therefore bound to establish that the complainant had hired the vehicle of the accused for the purpose of transportation and that the cheque in question was given as security for the said purpose. The accused failed to respond to the legal notice and did not establish his defense before the trial Court. The contention of the accused that the complainant did not have funds to pay a sum of Rs.2,00,000/- is belied by the defence of the accused that the complainant was transporting areca nut in the lorry owned by the accused and that the accused used to frequently raise loans from the complainant. The other contention that the complainant could not have given away a sum of Rs.2,00,000/-
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CRL.RP No. 76 of 2020
as hand loan as the same was prohibited under Section 269 SS of the IT Act, 1961 is inconsequential as the Courts were not concerned with the proceedings under the IT Act, 1961 but were merely concerned with proceedings under the NI Act, 1881.
In that view of the matter, the accused failed to establish his defence in accordance with law and therefore, the trial Court and the Appellate Court were justified in convicting the accused for the offence punishable under Section 138 of NI Act, 1881.
There is no error apparent on the face of the record warranting interference by this Court in revision petition. Hence, this revision petition lacks merit and the same is dismissed.
Sd/- JUDGE
NR/- List No.: 1 Sl No.: 24