Karnataka High Court
Sri. S. G. Rajesh vs Sri. N. Prakash on 25 October, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.1248 OF 2017
BETWEEN:
SRI. S.G. RAJESH,
S/O. GNANESHWARA RAO SHENDGE,
AGED ABOUT 43 YEARS,
R/A NO.89/1-2 & 3,
6TH CROSS, RAYAPPA GARDEN,
RAMAKRISHNA ROAD,
COX TOWN,
BENGALURU-560 005
....PETITIONER
(BY SRI. S.G. RAJESH, PARTY-IN-PERSON)
AND:
SRI. N. PRAKASH,
S/O. LATE V. NARAYANA RAO,
AGED ABOUT 53 YEARS,
RESIDING AT NO.13, DARJIPET,
R.T. STREET CROSS, CHICKPET,
BENGALURU-560 053.
...RESPONDENT
(BY SRI. FAYAZ SAB B.G, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE
JUDGMENT DATED 04.07.2016 PASSED BY THE XIII
ADDL.C.M.M., BENGALURU IN C.C.NO.15562/2015 VIDE
ANNEXURE-A AND JUDGMENT DATED 01.09.2017 PASSED BY
THE LXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN CRL.A.NO.870/2016 VIDE ANNEXURE-B.
2
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 05.10.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision is filed by the revision petitioner / accused challenging the judgment of conviction and order of sentence passed by XIII Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.15562/2015 and confirmed by LXVI Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.870/2016.
2. For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case are as under:
That the complainant and the accused are cousins and in view of the said acquaintance, the accused had approached the complainant for financial assistance of Rs.4,50,000/- as a hand loan for his father's medical treatment and to clear the loan. The said loan was advanced by complainant on 26.12.2012 and accused 3 promised to repay the same within six months. In between it is asserted that complainant got transferred to Pune and was not able to repay the loan amount and agreed to pay the same within 15 months in monthly Rs.30,000/- installment by issuing 15 post dated cheques bearing Nos.000026 to 000040 of HDFC Bank, BTM layout II Stage, Bangalore. The said cheques were presented for encashment, but 9 cheques were honoured and other cheques from 000035 to 000037 were bounced for reason of insufficient funds. Then the accused promised to pay complainant total sum of Rs.90,000/-, but never repaid the same. He has also requested the complainant not to present the balance cheques 000035 to 000040 asserting that he will pay entire due of Rs.1,80,000/- towards these 6 cheques to the complainant.
4. It is further asserted that in the month of October 2014, accused again requested complainant for loan of Rs.6 Lakhs to clear standing loan, which he had availed in HDFC Bank, Bangalore and also promised that he will also clear the due of Rs.180000 including Rs.6 Lakhs. 4 Hence, the complainant has paid another loan of Rs.6 Lakhs in favour of accused on 10.12.2014. The accused has assured the complainant of repayment of Rs.6 Lakhs and Rs.1,80,000/- by the end of December 2014. Thereafter, he had issued a post dated cheque bearing 000121 dated 16.01.2015 for Rs.6 Lakhs to the complainant drawn on HDFC Bank, BTM Layout, Bangalore. When the said cheque came to be presented, it bounced for insufficient of funds. The complainant got issued a legal notice and though it is served, the accused did not repay the cheque amount and hence, a complaint came to be lodged.
5. On the basis of the complaint, the learned Magistrate has taken cognizance of the offence and issued process against the accused. The accused has appeared and was enlarged on bail. The plea under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act' for short) was recorded and he denied the same.
6. The complainant was examined as PW1 and he placed reliance on 11 documents marked at Ex.P1 to 5 Ex.P11. After conclusion of the evidence of the complainant the statement of the accused under Section 313 of Cr.P.C was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the complainant. The case of accused is of total denial. He also got examined himself as DW1 and placed reliance on Ex.D1 to Ex.D8.
7. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of N.I. Act by imposing sentence of fine of Rs.8 Lakhs.
8. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached LXVI Additional City Civil and Sessions Judge in Crl.A.No.870/2016. The Learned Sessions Judge after re- appreciating the oral and documentary evidence dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate. Against 6 these concurrent findings, the accused / revision petitioner is before this court by way of this revision.
9. Heard the arguments advanced by the revision petitioner/accused in person and learned counsel for the respondent / complainant. Perused the records.
10. The revision petitioner has prosecuted this matter in person. He would contend that he is well off and there is no need for him to take such a huge amount as a loan. On the contrary, he would contend that he used to send some amount to the accused for purchase of jewellery to his mother and for payment to his mother as the complainant is his cousin. He would also assert that the complainant himself is a tailor by profession and he was working in Vodafone and was earning Rs.12,000/- per month including incentives and hence, his contention of advancing huge loan of Rs.6 Lakhs cannot be accepted and he has failed to prove his financial status. He would also contend that he had sent certain cheques towards repayment of the 'loan installment of the bank' to the complainant, but the said cheques were misused and in this 7 regard he invites the attention to Ex.D10, which is a complaint filed against him by another person and both the complaints were on the same day and in that complaint, the complainant was a witness. Hence, he would assert that both the courts below have erred in convicting the accused and judgment of conviction and order sentence passed by both the courts below is perverse and sought for interference.
11. Per contra, the learned counsel for the respondent would contend that totally the accused has returned Rs.10 Lakhs to him on different occasions, which were taken as loan. He would also assert that the signature and the cheque have been admitted and presumption is in favour of the complainant which is not rebutted. He has further invited the attention of the court to Ex.P10, which is a e-mail issued by the accused admitting his liability. Hence, he would seek dismissal of the revision.
12. Having heard the arguments and on perusing the records, the following point would arise for my consideration:
8
(i) Whether the judgment of conviction and order of sentence passed by the trial court and confirmed by the sessions Judge are perverse, arbitrary and erroneous so as to call for any interference by this court?
13. It is the contention of the complainant that initially accused availed loan of Rs.4,50,000/- and towards repayment of the same, he issued 15 cheques of Rs.30,000/- each and 9 cheques were encashed, while 3 cheques were dishonoured and as per request, 6 cheques were not presented. According to the complainant, on 26.12.2012, he advanced Rs.4,50,000/-. He further asserts that subsequently accused again demanded Rs.6 Lakhs assuring him to pay total sum of Rs.7,80,000/- and he advanced Rs.6 Lakhs on 10.12.2014. According to the complainant, in discharge of the said debt of Rs.6 Lakhs, Ex.P1 came to be issued and it is bounced. The defence of the accused is that the complainant is not capable of advancing the loan, but he used to send the money to his mother for purchasing jewellery through accused and used 9 to send cheques to him for payment of bank installments. The cheque-Ex.P1 belongs to the accused and it bears his signature are the admitted facts.
14. In the cross-examination, PW1 admitted that he was working as a Tailor since, last 5 years. This evidence was recorded in 2015 and he further asserts that from 2004 to 2012, he was working in Vodafone. He further asserted that he used to receive commission to the tune of Rs.12,000/- to Rs.15,000/-. Ex.D1 when confronted to him, he admitted the same, which discloses that from November 2004 to October 2012, he used to receive salary of Rs.12,000/- in ACE Business Ventures inclusive of incentives. Hence, it is evident that till October 2012, his monthly income was Rs.12,000/-. The further cross- examination of PW1 discloses that prior to payment of Rs.4,50,000/- earlier also, he paid the loan to the tune of Rs.40,000/- to Rs.60,000/- upto 7 Lakhs till 2014. When the income of the complainant itself is Rs.12,000/- per month, it is hard to accept that he advanced nearly loan of 10 Rs.7 Lakhs till 2014 without charging interest to the complainant.
15. In his further cross-examination PW1 admitted that after leaving the job of Vodafone, he was working as an Attender in the Tailor shop of one Pranesh as admitted before XXI ACMM, Bangalore. Though he asserts that his wife is working in a private sector, he has not produced any documents to substantiate the same.
16. As per the complainant's admission, he was required to receive earlier balance of Rs.1,80,000/- and Rs.6 Lakhs advanced subsequently. His assertion is that this cheque Ex.P1 was issued towards Rs.6 Lakhs. He has further all along asserted that there was a promise to pay the balance Rs.1,80,000/- in cash. In the entire evidence or in the complaint, the complainant no where whispered as to balance of Rs.1,80,000/-. The accused has suggested to the complainant that the complainant has stolen the cheques from his house, but he denied the same. However, no complaint is lodged in this regard and that defence is not acceptable.
11
17. The conduct of the complainant in this regard is also suspicious. When the balance of Rs.1,80,000/- was due in December 2014, how he paid further Rs.6 Lakhs is not at all explained that too when the earlier amount itself was not paid. This conduct of the complainant is against human nature. Further in his cross-examination, he admitted that the accused has credited a total amount of Rs.9,47,500/- between 07.09.2013 to 22.08.2014 to his account. He asserts that it was pertaining to a different transaction. What is that different transaction is not all explained. He further admitted that accused has sent the amount to him through online for purchasing gold and he has purchased the gold and he admits the receipt Ex.D2. Though a suggestion was made that the said golden ornaments were not handed over to the mother of the accused, he disputed this aspect.
18. The complainant further admitted in his cross- examination that he is not doing any money lending business. His monthly income itself is hardly Rs.12,000/-. He had no other source of income. He further admits that 12 he has filed a cheque bounce case against one Panchmi for a sum of Rs.4,10,000/-, against one Raju for Rs.7 Lakhs and against Vinod Rao Shinde to the tune of Rs.5 Lakhs. If this version is taken into consideration, it is evident that complainant is dealing in Lakhs and advancing the loans in Lakhs to number of persons without charging interest and without disclosing the source of income. He never asserted that he is an income tax assessee. Hence, it can be safely presumed that the complainant is illegally doing money lending business and he is extracting higher rate of interest by cheating the borrowers as well as the State. When he is doing illegal money lending business, which is unaccounted money, it cannot be termed to be a legal transaction and source cannot be considered as legal source for advancement of the loan.
19. The learned counsel for the respondent has invited the attention of the court to Ex.P10 which is email submitted by the accused wherein he has admitted regarding due payment in respect of two installments of September and October and assured of clearing them by 13 November 2014. But this only discloses the earlier transaction, but it has nothing to do with the loan of Rs.6 Lakhs said to have been advanced on 10.12.2014 as this letter is dated 02.11.2014.
20. The accused got examined himself as DW1 and he has admitted issuance of 15 cheques of Rs.30,000/- to the accused and asserts that they were given to the maintenance of the family of the accused and 10 cheques were encashed. He has also deposed regarding online transfer to the complainant towards Rs.7,45,000/- and payment towards purchase of gold. From Ex.D3, it is evident that totally he has transferred to the tune of Rs.10,45,100/- to the account of the complainant. This Rs.10,45,100/- does not include 9/10 cheques of Rs.30,000/-. If this version is taken into consideration, then the accused has paid more than Rs.13 Lakhs to the complainant. The claim of the complainant is only to the tune of Rs.7,80,000/- in all and in this case, it is for Rs.6 Lakhs. Further, the complainant has produced Ex.D4 to show that he is financially sound and was an income tax 14 assessee. Ex.D10, is a complaint filed by one Dhanapal, wherein the allegations of payment of Rs.4,50,000/- again as asserted by the complainant in this case and interestingly the present complainant was shown to be witness to the said transaction.
21. Hence, these facts and circumstances clearly establish that complainant is illegally doing money transactions. He did not disclose his source of income though he was transacting in Lakhs, but his source of income itself is not established. Hence, it can be inferred that he is not having white money and his transactions are illegal transactions. Apart from that, the records disclose that the complainant has transferred more than Rs.13 Lakhs to the account of the complainant and though complainant claims that it was pertaining to different transactions, he never asserted what were those different transactions and according to him there are only two transactions of Rs.4,50,000/- and Rs.6 Lakhs. Considering these facts and circumstances, it is evident that the complainant/respondent has failed to prove the fact that the 15 accused has issued the disputed cheque Ex.P1 towards legally enforceable debt.
22. Both the courts below have failed to appreciate the oral and documentary evidence in its proper perspective. Further, accused is not required to rebut the presumption on the standard of proof of beyond all reasonable doubt, but he can prove his defence only on the basis of preponderance of probability. The evidence on record clearly establishes that the accused/revision petitioner was successful in proving his defence and complainant has not produced any other material to substantiate his claim. The courts below have failed to appreciate the defence of the accused, documents produced by the accused and cross-examination of the complainant and material admissions regarding transfer of the amount. Both the courts below carried away with the fact that cheque and signature have been admitted, but did not consider that the same has been rebutted. Hence, the judgments of conviction and orders of sentence suffer from perversity and call for interference by this court. 16 Considering these facts and circumstances the point under consideration is answered in the affirmative. As such, I proceed to pass the following ORDER
(i) The revision petition is allowed.
(ii) The judgment of conviction and order of sentence passed by XIII Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.15562/2015 and confirmed by LXVI Additional City Civil and Sessions Judge, Bangalore in Crl.A.NO.870/2016 are set aside.
(iii) The accused stands acquitted for the offence punishable under Section 138 of N.I.Act and bail bonds stand cancelled by setting him at liberty forthwith.
(iv) The amount in deposit made by the
revision petitioner / accused shall be
refunded to him.
Sd/-
JUDGE
SS