IN THE HIGH ooum or KARNATAKAAT BANGALORE
DATED THISTHE 17111 DAY OF FEBRUARY. 2010
BEFORE E
TI-iii HONBLE MRJUSTICE JAWAD V
CRIMINAL REVISION PETITION._'NO._'1-1.?! 2909 it
BETWEEN:
B. S. Shamu
Son of Seenappa,
Aged about 52 years.
Residing at No. 1001.
3"' Main Road,
Hosakerehaiii. .. 1 _
BSKIII stage, " ,
Bangaiore--560"{)85f~--._...';7 " .j" . ....PE'1'I"i'iO1\EER
(By Sri. it
AND: I V by E V.
J. indu
E)/o D1'. VS_._ Javare V
Aged about 38 yea'1*s._
i.v"'Rces1dmg"a1;,_«No_..634, ----------
V41-ii Cross, V'i,i\£_;1in._ Road,
i3--SK:i sm_g-9.,» 'E _ .
...RESPONDEN'I.'
{By Sri".'~._S. sicidgppa. Adv.)
, Criminal Revision Petition is filed under Section 397
:1'/XKW4-Oi'A {5} C1'.P.C by the aC1voCu'£.e For the petitioner praying
..._that this Honbie Court" may be pleased to set aside the order of
.i Comrictioii and sentence and the fine imposed by XVI Add}. Chief
ivietropoiitan Magistrate, Bangaiore, in CC. No. 27616/2005
A""'dated 23.12.2006 and set aside the order passed by the
Appellate Court. in Cri. Appeal No.95/2007 dated 11.12.2008
passed' by the Sessions Judge. B'd11g&1lOI'€?, FTCAV. anci acquit the
petitioner in the above case.
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This petition coining on for adiiiissioii this day. the Court.
made the following:
ORDER
Petitioner t.he Convicted accused is in revision against the
judgment and Criminal Appeal No.95/2007 dated l1,Vl2_.l20_O8
on the file of Sessions Judge. Fast Track
Confirming the judgment. in dated
23.12.2006. whereby. he was convicted :I_’oi9 jth’e
Section 138 of the Negotiable II]Svl,i”t_1’_I11€r1’l:S._Pll(T1T.
2. This petition is posted a;f7t’e:A’rv._no.tjice t.o’~otjhe,r§ side for
admission. Since both sides lThVe..p.etition is admitted
and by eoiisent it isVta..l_»{en» Tor final disposal.
3. .Frorris.the,vi*eeord.s available it is noticed that, the
_..r.espon.d.ent’initiated.«prosecution against the petitioner for
,_0l’f6’I:1C3E’aVUI’1_(Z’lt3.If’ 1.38 of the Negotiable lnstrtiments AC1 on
the the petitioner had approached her and
V l)orro\Xfed zi.l.s1;.rn of Rs.3.00.000/– agreeing to repay the same
“l”.’.\/’\7,l_’t’.l/IA i:}t.ei’est. and l.()\VE1i”ClS repaynieiiti. issued cheques which on
“pi’C’S€li;l”l.E’l:l.lOi’l to the bank. were dishonoured for ‘iI1Sl4_Lfll(?i(:’I1f
dft;-nets’. Notice issued as enwsaged under Clause (b) under
it Section 138 of the Negotiable liistrumeiiis Act. was not (‘()111pliCCl.
0192/
.–3V”4
<1. Cognizanee was taken for the. offence. under Section .138
of the Negotiable Instruments Act and t.he petitioner was
summoned to answer the charge. he pleaded not guilty.
Consequent to which he was put to trial. During _wh4ich;r-'lt~h"e:V.
complainant, examined herself as PW} and placed"-reliancelion:
ten documents. while the accused also::t:end"ered~;th.e as":
DW}. and examined two witnesses. Consv_i_derii1g the-~_. e'vide1t1e,e'–spo'~_
brought. on record. the learned T1'ia},Jtsdge fouiidra.ic'on'iplai'nant's V
evidence out weighed the 'deifence'llar'1d;eon§equen'tly~"convicted
him for the offence under rfiillfi Néigotiabie
Instruments Act and a of Rs.3.00.000/~
as fine. "«fijrinii.nallllAppeal No.95/2007
reiterating–._plea oltl'ef.in–nocerice§-which did not find favour. The
learned Applellpate the appeal. Against both the
judgments, he is inarevisioii.
‘ -r
-J2.’ Th’e:”vtals’s.ert,ive contention against the impugned
T’
V judgrnenlts there is no material evidence establishing
‘ existence.’ of: debt or liability between the respondent and the
ll petitioin_er; that the transaction if any was between the petitioner
Dinesh Shetty. The issuance of cheque was under
“duress and was not v0Eu.nt”arily done. The cheque has been
obtained under fraud and duress and hence they were
unenforceable against: the petitioner.
gee,
6. Per Contra. learned Counsel for t.he respondent
supports the impugned judgments contending’ that. the money
lending transaction between the parties is documented t.hi”~-ough
the statement of accounts of ICICI Bank and that _
liability of the petitioner.
7. Keeping in mind these aspects, l–._haVel’examinettT”thVe’..
material made available in supplen’ten*t:ation’ to t’hetr._corite’nti’ons. ”
8. Though the respond–e11t;.sAVl”assert.iyely urged that.
impugned cheques Aywere issuerd the-.v.’reVjs;po~11dent towards
repayment of petitione–r denied it. Against
the said :’denial…:1i?ve ‘l’i1i’cl ‘l”t1pn-co1ttrav’erted document ie, the
statement of ICICI Bank relating to the
account maintained by, the complainant–~respondent. The
statenv.ieht3_ol’t a_ccottntvv.ev.i«dences the fact. that, the respondent
hadsissnedcheques in favour of the petitioner totaling to a sum
of uSince the cheque of the complainant has been
encashed by the petitioner. in the absence of any material
eiftdpehee, it has to be accepted that the petitioner has withdrawn
“the”:an1ount covered under the cheques issued in his name by
hrthveflrespondent. It also compels the petitioner to explain under
ah the circumstances and in relation to what. t1’ansact.ion he had
received the said amount. The accused has failed to explain. but
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on the other hand has referred to one Dinesh Shetty. According
to him, the complainant had paid amount to him t.o be passed
on to Dinesh Shetty with whom she had subscribed to a chit. if
we believe this contention. then Dinesh Shetty should have». been
a material witness. The petitioner did not venture__tjo”‘st1.’m._nIo:n
him on his own’ or with court assistance to S€CL1f€»,.f’l.’i’SVpIiéS€l1C’e”
to tender evidence. Therefore. the plea has jj.re1;11ained’r.a~.,_pleaf
without transferring into a va’.’.id_ defeiice. the
respondent is concerned. the statenient of aceotziits filed by her
is a clincher to establish vi’ne’t:_1uIn between the parties of money
lending and in the absence of “any ‘;5_1*e_slum13tio11 under
Section 139 is ;’a’\2a;.iVl:eable;i._ to favour of the
eornplainant. _ .
9. I am ‘satitsfield trial Court as also the Appellate
‘Court right iunwtlheir conclusion that. the primary burden
‘clislcliargedé by the Complainant”. to establish the allegations
in it is the accused who had failed to rebut
lithe presurnption against him and also failed to establish his
°’v.defe1:1ce. ‘here is a concurrent finding on facts and this is
revi’s_io1~1-Vuridei’ Section 397 with its scope being very narrow.
drirowever. for ascertaining as to where the injustice has been
“done or any material evidence has been ignored by the Trial
Court, 1 have even looked into the evidence and I am satisfied
{jl»33:/
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that the impugned judgments need no interference and
accordingly they are c:onfii’i1ied.
10. The petiion is devoid of merit. and is 1’1€3I'(3¥C)}-:””‘l””u’_”E,’>(3VV’x’?i’§§\.’VI.:._1’f’~.
the accused has not deposited the amount. of i’ine__ini~posed gipon’
him by the impugned judgnients. he is.’
to deposit the amount in Court inierins the order”; . A. V’ 2
*AP/ —