IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF JANUARY, 2024 BEFORE THE HON'BLE MS.JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.320 OF 2022 BETWEEN:

SRI KRISHNA NAIKA K S/O SRI KAMALA NAIK, AGED ABOUT 55 YEARS, R/AT VIJAYAPURA, HONNALI TALUK, DAVANAGERE DISTRICT - 577 217.

…PETITIONER (BY SRI. NANDISH GOWDA G B, ADVOCATE)

AND:

SRI. T B BASAVARAJ S/O SRI.T.VEERANNA, AGED ABOUT 39 YEARS, R/AT DOOR NO.1850/1, 2^ND CROSS, A BLOCK, N.N.EXTENSION, DAVANAGERE - 577 002 …..RESPONDENT (BY SRI. SRINIVASAN S K, ADVOCATE)

THIS CRL.RP IS FILED UNDER SECTION 397(1) OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 10.12.2021 PASSED BY THE COURT OF THE 2^ND ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, DAVANAGERE IN CRL.A.NO.97/2019 BY CONFIRMING THE JUDGMENT DATED 14.10.2019 PASSED BY THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS-I COURT, DAVANAGERE IN C.C.NO.1682/2017 AND CONSEQUENTLY ACQUIT THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT.

THIS CRL.RP HAVING BEEN HEARD AND RESERVED ON

07.11.2023, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Being aggrieved by his conviction and sentence for the offence punishable under Section 138 of N.I. Act, imposed by the trial Court, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him, accused has filed this petition under Section 397 of Cr.P.C.

2. For the sake of convenience, the parties are referred to by their rank before the trial Court.

3. Complainant filed the complaint against accused alleging that he and accused are known to each other since 6–7 years. Accused borrowed a sum of Rs.3,50,000/- from the complainant for his necessity with a promise to repay the same within six months. On the same day he issued a post dated 02.12.2014 cheque for Rs.3,50,000/- with an assurance of prompt payment. On 09.02.2015, when complainant presented the cheque for realization, it was dishonoured on the ground "Funds insufficient". Though complainant brought this fact to the notice of accused, he did not care to pay the amount. Therefore, complainant issued legal notice dated 02.03.2015. However, accused has not claimed it. Therefore again complainant issued one more notice by correcting his address. When acknowledgement for having served the notice or at least unserved postal envelope is not returned, the complainant has written letter to the postmaster and he has sent reply stating that the notice is duly served. Despite the same, the accused has neither paid the amount due under the cheque nor sent any reply. Hence, the complaint.

4. After due service of summons, the accused has appeared through counsel and registered the complaint.

5. In order to prove the allegations against the accused, complainant has examined himself as PW-1 and got marked Ex.P1 to 18 (though in the index of the judgment, the documents marked for complainant are shown as Ex.P1 to 11 only).

6. During the course of statement under Section

313 Cr.P.C, the accused has denied the incriminating evidence. He has relied upon Ex.D1.

7. The trial Court accepted the case of the complainant and convicted the accused.

8. Accused challenged the same before the Sessions Court in Crl.A.No.97/2019. However, the Session Court confirmed the judgment and order of the trial Court, by dismissing the appeal filed by the accused.

9. Aggrieved by the same, the accused has approached this Court under revisional jurisdiction contending that the judgment and order of the trial Court as well as the Sessions Court are and not sustainable, both in law and on facts and as such liable to be set aside. Both courts have ignored the bristling inconsistency and contradiction in the evidence of complainant and has given undue weight to it. They have erred in observing that the cheque was issued towards discharge of any legally recoverable debt or liability. The Courts below have also erred in holding that the legal notice is served on the accused. Co