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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.24/2019
BETWEEN
SRI H NANDA KUMAR WORKING AS SENIOR AUDITOR OFFICE OF THE PRL ACCOUNTANT GENERAL (G & SSA) KARNATAKA BHAVAN, BANGALORE
AND R/AT NO 311 NANDA ASHIRVADA APARTMENT 1 MAIN ROAD, I CROSS CHANDRA LAYOUT, CANARA BANK COLONY BANGALORE - 560072 ...PETITIONER
(BY SRI M.V.PARAMESHWARAPPA, ADVOCATE)
AND PRABHAKAR MADHIRAJU S/O M N RAJU AGED ABOUT 50 YEARS R/AT NO 204, CHARTERED MADY J P NAGAR, 2ND PAHASE BANGALORE – 560078 … RESPONDENT (BY SRI R.SREENVASAIAH, ADVOCATE)
2 THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 RW SECTION 401 OF CR.PC PRAYING TO SET ASIDE THE ORDER OF TRIAL COURT, I.E., 16TH ACMM, BANGALORE, DATED 08.09.2017 IN C.C.NO.13531/2016 AND ETC.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
This matter is listed for admission. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
The factual matrix of the case of the respondent before the trial court is that the petitioner herein had availed a hand loan of Rs.4,50,000/- on 25.04.2015 from the respondent and promised to repay the same within 60 days and also executed a promissory note in favour of the respondent on the same day and the petitioner failed to repay the amount and on demand, he had issued two cheques i.e., one for an amount of Rs.2,00,000/- dated 05.01.2016 and another cheque dated 05.01.2016 for Rs.1,00,000/- and when those cheques were presented before the bank, one was returned with an endorsement as ‘signature differs’ and another one returned with
3 an endorsement as ‘funds insufficient’ hence, legal notice was issued to the petitioner and he has not replied to the said notice. Hence, the complaint was filed and the trial court took the cognizance and the petitioner was secured before the trial court and respondent/complainant got examined himself as PW1 and also got marked documents at Ex.C1 to C13. On the other hand, the petitioner also examined himself as DW1 and not marked any documents on his behalf and the trial court after considering both the oral and documentary evidence, convicted the petitioner for the offence pus 138 of N.I.Act and ordered to pay a fine of Rs.3,10,000 and in default he shall undergo simple imprisonment for a period of four months. Being aggrieved by the order of the trial court, an appeal was preferred in Crl.A.No.1428/2017 and the appellate court also on re- appreciation of material on record dismissed the appeal. Hence, the present revision petition is filed.
The main contention of the petitioner’s counsel is that no notice was served on the petitioner and apart from that the respondent was not having any source of income to pay the amount of Rs.4,50,000/- and to that effect evidence was led and
4 same has not been considered by the trial court. It is contended that even though the respondent has admitted that he had paid the said amount out of his salary savings, no material is placed to substantiate the same. The respondent also not produced any income tax returns to show that he had paid the said amount and inspite of it, both the Courts have committed an error in convicting the petitioner for the aforesaid offence. Hence, it requires interference of this Court.
Per contra, the counsel for the respondent would submit that the petitioner had not only issued two cheques but also executed the promissory note as per Ex.C6 for having received the amount. Apart from that notice was also sent to the petitioner but he has not replied to the said notice. Though the petitioner disputed the service of notice, the trial court came to the conclusion that the address mentioned in the legal notice was admitted by the petitioner and invoked Section 27 of the General clauses Act. The counsel would submit that no reply was given and no defence was set out at the first instance. The petitioner admitted the issuance of cheques at Ex.C1 and C3 and hence, there is no grounds to entertain the revision petition.
Having heard the respective counsel appearing for the parties and also on perusal of the material on record, the point that would arise for consideration of this Court is:
(1) Whether the trial court as well as the appellate court have committed an error in convicting the petitioner for the offence punishable under Section 138 of N.I.Act and whether this Court can exercise the revisional jurisdiction?
(2) What order?
Point Nos.1 and 2: 6. Having heard the respective counsel appearing for the parties and also on perusal of the material on record, it is not in dispute that Ex.C1 and C3 contains the signature of the petitioner herein and apart from that promissory note at Ex.C6 was also marked. Hence, the said documents disclose that there was a loan transaction between the parties. The said Ex.C1, C3 and C6 were not disputed by the petitioner but his only contention is that notice was not served properly and both the Courts have taken note of the admission given by petitioner
6 regarding service of notice is concerned and he categorically admits that the address shown in the legal notice pertains to his residence, hence, the very contention regarding no service of notice cannot be accepted. It is also the case of the respondent that the amount of Rs.4,50,000/- was paid and on demand, the subject matter of cheques were issued. I have already pointed out that the petitioner has not disputed the signature on the cheques and apart from that his only contention that the respondent was not having source of income. But it is the evidence of PW1 that he had paid the said amount out of his salary savings and also there is a presumption in favour of the holder of the cheque and the petitioner has to rebut the same. Admittedly, Ex.c6 also executed by the petitioner and the same is also not disputed by him. Now, the petitioner cannot contend that the respondent was not having source of income to pay the amount to him. Taking note of the material on record, both the Courts have came to the definite conclusion that there was a loan transaction between the parties and Ex.C1 and 3 were issued in respect of the said loan transaction and apart from that Ex.C6 was also executed in favour of the respondent in this regard. When such being the case, I do not find any perversity
7 in the findings of both the Courts. Hence, the question of interfering by exercising the revisional power does not arise in the absence of perverse finding given by both the Courts. Hence, I do not find any ground to admit the revision petition. Accordingly, the revision petition is dismissed.
Sd/- JUDGE