O R D E R

These two criminal revision petitions are filed challenging the judgment of conviction and confirmation passed by the Trial Court as well as the First Appellate Court questioning the same for the offence punishable under Section 138 of the Negotiable Instruments Act (‘NI Act’ for short).

2. The parties are referred as the complainant and accused for the convenience of the Court and to avoid the confusion.

The brief facts of the case:

3. C.C.No.6318/2018 is filed by the complainant one Basave Gowda claiming that he had invested an amount of Rs.1,00,400/- in the accused chit fund and in order to repay the chit amount, the accused had issued the cheque dated 02.11.2017 for an amount of Rs.1,00,400/- drawn on Karnataka Bank, Malleshwaram Branch, Bangalore. When the said cheque was presented, the same was returned with an endorsement “funds insufficient.” Hence, the complainant got issued the legal notice to the accused on 08.12.2017 and the same was returned with an endorsement “not claimed” and the accused did not reply or comply the notice and hence complaint was filed and cognizance was taken for the offence punishable under Section 138 of the NI Act. The complainant in order to prove his case examined himself as P.W.1 and got marked the documents at Exs.P.1 to 5. On the other hand, the accused examined himself as D.W.1 and got marked the documents at Exs.D.1 to 4. The Trial Court having perused both oral and documentary evidence placed on record convicted the accused and ordered to pay the cheque amount. The same was questioned by the accused in Crl.A.No.257/2020 and on re-appreciation of both oral and documentary evidence placed on record, the First Appellate Court confirmed the judgment of the Trial Court. Hence, Crl.R.P.No.395/2023 is filed before this Court.

4. Crl.R.P.No.343/2023 is arising out of C.C.No.6317/2018, wherein the complainant had invested an amount of Rs.2,56,250/- in the chit fund of the accused and for repayment of the money, the accused issued the cheque dated

04.11.2017 for the said amount. When the said cheque was presented, the same was returned with an endorsement “funds insufficient.” Hence, the complainant got issued the legal notice to the accused on 08.12.2017 and the same was returned with an endorsement “not claimed” and the accused did not reply or comply the notice and hence complaint was filed and cognizance was taken for the offence punishable under Section 138 of the NI Act. The complainant in order to prove his case examined himself as P.W.1 and got marked the documents at Exs.P.1 to 8. On the other hand, the accused examined himself as D.W.1 and got marked the documents at Exs.D.1 to 4. The Trial Court having perused both oral and documentary evidence placed on record convicted the accused and ordered to pay the cheque amount. Hence, Crl.A.No.258/2020 was filed and the same was dismissed confirming the judgment of the Trial Court. Hence, Crl.R.P.No.343/2023 is filed before this Court.

5. The learned counsel for the petitioner in both the petitions would contend that those two cheques are issued on 02.11.2017 and 04.11.2017. Admittedly, an amount of Rs.4,50,000/- was paid to the complainant Anand M.S. and the said amount is paid towards the amount of Rs.2,56,250/-, which is the subject matter of the other criminal case and in respect of the complainant Basavegowda to the tune of Rs.1,00,400/- and also in respect of another person Kumar to the tune of Rs.94,550/- and in total it comes to Rs.4,51,200/- and hence made the payment of Rs.4,50,000/- and hence the question of convicting and confirming the same against the accused is not tenable under law. The learned counsel contend that the complainants came near the house of the accused and caused threat and hence he issued the cheques and after subsequent to the issuance of the cheque only, an amount of Rs.4,50,000/- was paid on 09.11.2017. The Trial Court as well as the First Appellate Court failed to appreciate this fact and erroneously