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2023 DIGILAW 595 (KAR)

N. A. Vasantha v. K. S. Chandrashekar

2023-04-13

S.VISHWAJITH SHETTY

body2023
JUDGMENT 1. This criminal revision petition by the accused under Sec. 397 of Cr.P.C. is filed challenging the judgment and order of conviction and sentence passed by the Court of Civil Judge & JMFC, Koppa in C.C.No.349/2015 dtd. 17/11/2018 and the judgment and order dtd. 31/8/2019 passed by the Court of II Addl. District & Sessions Judge, at Chikkamagaluru in Crl.A.No.190/2018. 2. Heard the learned counsel for the parties. 3. Facts leading to filing of this criminal revision petition narrated briefly are: The respondent/complainant had filed a complaint under Sec. 200 of Cr.P.C. against the petitioner for the offence punishable under Sec. 138 of N.I. Act contending that the petitioner had borrowed a sum of Rs.1, 90, 000.00 from him on 2/1/2015 for his urgent necessities and towards repayment of the said amount the petitioner had issued a cheque bearing No.017111 dtd. 15/3/2015 drawn in his favour for a sum of Rs.1, 90, 000.00 The said cheque on presentation for realization was dishonoured with a banker's endorsement 'funds insufficient'. 4. The complainant thereafterwords issued a legal notice in compliance of statutory requirement as provided under Sec. 138(b) of N.I. Act. The said notice was duly served on the petitioner on 7/4/2015. Inspite of service of the legal notice, the petitioner had not paid the amount covered under the cheque in question nor had he replied to the said notice. It is under these circumstances, the respondent had filed a complaint against the petitioner. 5. In the said proceedings, the petitioner had appeared before the trial Court and pleaded not guilty and the respondent/complainant in order to prove his case had examined himself as PW.1 and got marked five documents as Exs.P1 to P5. The petitioner had denied the incriminating circumstances available on record during the course of his Sec. 313 Cr.P.C. statement. He also examined himself as DW.1 in support of his defence. The trial Court thereafter heard the arguments addressed on both sides and by its judgment and order dtd. 17/11/2018 convicted the petitioner for the offence punishable under Sec. 138 of N.I. Act and sentenced him to pay fine of Rs.2, 05, 000.00. 6. The appeal filed by the petitioner against the said judgment and order of conviction and sentence passed by the trial Court was dismissed by the Appellate Court on 31/8/2019. It is under these factual background, the petitioner is before this Court. 7. 6. The appeal filed by the petitioner against the said judgment and order of conviction and sentence passed by the trial Court was dismissed by the Appellate Court on 31/8/2019. It is under these factual background, the petitioner is before this Court. 7. Learned counsel for the petitioner submits that the petitioner had borrowed only a sum of Rs.22, 500.00 from the respondent and the entire borrowed amount was paid with interest to the respondent and the cheque in question which was issued as a security for the said transaction was misused by the respondent. He submits that there is no proof that the petitioner had borrowed a sum of Rs.1, 90, 000.00 from the respondent and therefore the Courts below are not justified in convicting the petitioner for the offence punishable under Sec. 138 of N.I. Act. 8. Per contra, learned counsel for the respondent has argued in support of the impugned judgment and order of conviction and sentence and submits that the defence raised by the petitioner has not been proved by him by producing any evidence before the Courts below and therefore, the Courts below are justified in convicting him for the offence punishable under Sec. 138 of N.I. Act. 9. I have given my anxious consideration to the arguments addressed by both sides and also perused the material available on record. 10. The complainant in order to substantiate his case had examined himself as PW.1 and also got marked five documents as Exs.P1 to P5. Ex.P1 is the original cheque issued by the petitioner in favour of the respondent drawn on Karnataka Bank, Narve Branch, Koppa. The signature found in the said cheque is not seriously disputed by the petitioner and it is also not in dispute that the cheque is drawn on the bank account maintained by the petitioner in Karnataka Bank, Narve Branch. Having regard to the same, there is a presumption available against the petitioner under Sec. 139 of N.I. Act that the cheque in question has been issued by the petitioner to the respondent towards discharge of his legally recoverable debt. The petitioner had taken a defence before the trial Court that he had only borrowed a sum of Rs.22, 500.00 from the respondent and he had repaid the entire amount borrowed by him with interest to the respondent. The petitioner had taken a defence before the trial Court that he had only borrowed a sum of Rs.22, 500.00 from the respondent and he had repaid the entire amount borrowed by him with interest to the respondent. It is also his case that the cheque in question was issued as a security for the aforesaid transaction and the same was misused by the respondent. However, this defence raised by the petitioner has not been probabalized by him by producing necessary evidence before the trial Court. Though the petitioner was served with a statutory notice as provided under Sec. 138 (b) of N.I. Act, he had not replied to the same. The complaint filed by the respondent is in compliance of the requirement of law. The presumption that arose against the petitioner that the cheque in question was issued towards discharge of his legally recoverable debt was not successfully rebutted by him by raising a probable defence. 11. Under the circumstances, the Courts below were fully justified in convicting the petitioner for the offence punishable under Sec. 138 of N.I. Act. Even the sentence imposed by the Courts below against the petitioner is just and proper and therefore, I find no good reasons to interfere with the concurrent findings recorded by the Courts below against the petitioner. The revision petition is devoid of merit and therefore, the same is dismissed. The amount in deposit, if any, either before the Appellate Court or before the trial Court is permitted to be withdrawn by the respondent. Registry is directed to return the trial Court records forthwith.