Karnataka High Court
Sri M Ramakrishnappa vs Mrs Mala on 23 August, 2023
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NC: 2023:KHC:30148
CRL.RP No. 18 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL REVISION PETITION NO. 18 OF 2020
BETWEEN:
SRI. M. RAMAKRISHNAPPA, S/O MUNIKONDAPPA,
AGED ABOUT 65 YEARS,
R/A NO. 32, 1ST CROSS,
NAGASANDRA POST, BAGALAGUNTE,
BANGALORE - 560 073.
...PETITIONER
(BY SRI. SHRIVATSA, ADVOCATE FOR
SRI. PARAMESHWAR N. HEGDE, ADVOCATE)
AND:
MRS. MALA, W/O UNNIKRISHNAN,
AGED ABOUT 42 YEARS,
TEACHER, C/O PHONIX CONVENT,
3RD MAIN, 3RD CROSS, NAGASANDRA POST,
Digitally BAGALAGUNTE, BANGALORE - 560 073.
signed by
HARSHITHA ...RESPONDENT
B
(BY SRI. P.M.GOPI, ADVOCATE FOR
Location: SRI. P.M.SIDDAMALLAPPA, ADVOCATE)
High Court
Of Karnataka
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT DATED 14.12.2018 PASSED BY THE
LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU (CCH-64) IN CRL.A.NO.1477/2015 AND THE ORDER
DATED 17.11.2015 IN C.C.NO.10280/2009 FROM THE FILE OF THE
COURT OF XVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
AT BENGALURU, AND CONSEQUENTLY ACQUIT THE
PETITIONER/ACCUSED FOR THE OFFENCE P/U/S.138 OF NI ACT.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2023:KHC:30148
CRL.RP No. 18 of 2020
ORDER
The petitioner being the accused in CC.No.10280/2009 on the file of the learned XVIII Addl. Chief Metropolitan, Magistrate, Bangalore (hereinafter referred to as the 'Trial Court' for brevity) is impugning the judgment of conviction and order of sentence dated 17.11.2015 convicting him for the offence punishable under Section 138 of Negotiable Instrument Act (for short 'NI Act') and sentencing him to pay a fine of Rs.6,20,000/- and in default, to undergo simple imprisonment for a period of one year, which was confirmed vide judgment dated 14.12.2018 passed in Crl.A.No.1477/2015 on the file of the LXIII Addl. City Civil & Sessions Judge, CCH-64, Bengaluru City (hereinafter referred to as 'the First Appellate Court' for brevity).
2. Brief facts of the case are that, the complainant filed private complaint in PCR No.19224/2008 against the accused alleging commission of offence under Section 138 of NI Act. It is contended that the accused has borrowed a -3- NC: 2023:KHC:30148 CRL.RP No. 18 of 2020 sum of Rs.6,00,000/- from the complainant on 25.08.2008 and towards repayment of the same, he has issued cheque Ex.P.1 for Rs.6,00,000/-. The cheque was presented for encashment. The same was dishonored as account closed. When the accused was called upon to pay the cheque amount by issuing notice, accused has not replied to the same nor repaid the cheque amount. Thereby, he has committed the offence punishable under Section 138 of NI Act. Accordingly, she prayed learned Magistrate to take cognizance and to initiate action against the accused.
3. Learned Magistrate took cognizance of the offence. The accused appeared before the Court and pleaded not guilty for the accusation made against him. The complainant examined herself as PW.1 and got marked Exs.P1 to 24 in support of her contention. The accused denied all the incriminating materials available on record in the statement recorded under Section 313 of Cr.P.C. The accused examined himself as DW1 but not led any evidence and chosen to mark any document in -4- NC: 2023:KHC:30148 CRL.RP No. 18 of 2020 support of his defence. The trial court after taking into consideration of all these material on record, came to the conclusion that the complainant is successful in proving the guilt of the accused beyond reasonable doubt. Accordingly, convicted and sentenced as stated above.
4. Being aggrieved by the same, the accused has preferred Crl.A.No.1477/2015. The first appellate court on re-appreciation of materials on record, dismissed the criminal appeal by confirming the impugned judgment of conviction and order of sentence passed by the trial court. Being aggrieved by the same, the accused has preferred this revision petition.
5. Even though the matter is listed for hearing on interlocutory application-IA.No.1/2022 filed by the learned counsel for the respondent for release of the amount in deposit, as per the order dated 04.08.2023, both parties were directed to address their argument on merits. Accordingly, when the matter is listed today, learned -5- NC: 2023:KHC:30148 CRL.RP No. 18 of 2020 counsel for petitioner submits that he has no instruction from the accused to address arguments. Hence, his arguments is taken as nil. Heard learned counsel for the respondent. Perused the materials including the trial court records.
6. Learned counsel for the respondent submits that the complainant had lent an amount of Rs.6,00,000/- to the accused. Towards repayment of the same, Ex.P.1 was issued. Even though, the cheque was presented for encashment, the same was dishonored as account closed. The account was deliberately closed as he has not arranged for funds in his account.
7. Learned counsel submitted that even though the accused took up defence that the complainant is a stranger to him, the documents produced before the Court disclose that the complainant and the accused were known to each other. The documents also disclose that the legal notice was served on the accused, but he had neither replied nor complied with the demands made therein. -6-
NC: 2023:KHC:30148 CRL.RP No. 18 of 2020 Under such circumstances, the trial court and the first appellate court were right in convicting the accused. There are no merits in the contention taken by the revision petition. Hence, prayed for dismissal of the petition in the interest of justice.
8. In view of the submissions made by the learned counsel for the respondent, the point that would arise for my consideration is:
"Whether the impugned judgment of conviction and order of sentence passed by the Trial Court, which was confirmed by the First Appellate Court suffers from any infirmities and calls for interference by this Court?"
9. My answer to the above point is in the 'Negative' for the following:
REASONS
10. It is the specific contention of the complainant while filing the private complaint that, she had lent an amount of Rs.6,00,000/- to the accused on 25.08.2008 and towards repayment of the same, Ex.P.1 cheque dated -7- NC: 2023:KHC:30148 CRL.RP No. 18 of 2020 22.10.2008 was issued by the accused. To prove the same, she has stepped into the witness box and deposed as PW1. The witness was cross-examined at length by learned counsel for the accused on various dates, but nothing has been elicited from her to disbelieve her version. It is suggested to the witness that blank cheque with signature of accused was handed over to the mother of the complainant towards repayment of sum of Rs.1,00,000/-, which the mother of complainant had given to the complainant and the same was misused by the complainant. The said suggestion was denied by the witness.
11. The accused examined himself as DW.1 and admitted that Ex.P1-cheque belongs to his bank account and bears his signature. Reiterating his defence, he has stated that during 2006, Puttathayamma had paid Rs.1,00,000/- as an advance in a land dealing. He had issued the said cheque to one Puttathayamma as a security. Since the land could not be purchased by -8- NC: 2023:KHC:30148 CRL.RP No. 18 of 2020 Puttathayamma, she was demanding to give back the advance amount. Towards payment of the same, he had issued the cheque Ex.P1. During cross-examination, he admits that he had not taken any action against Puttathayamma for not returning the cheque and misusing the same. Witness admitted that he is not having any document to show that he had entered into an agreement with Puttathayamma in respect of landed property. The witness admitted that his wife had registered C.C.No.21106/2007 and Exs.P.9 and 10 were got marked through witness. Since the accused admitted the documents, Exs.P12 to 17 were came to be marked during the cross-examination. Witness admitted that in the criminal case, he was deposed as witness. Exs.P.18 to 24 were also marked during the cross-examination.
12. Ex.P.1 is the cheque dated 22.10.2008 for Rs.6,00,000/- issued by accused in favour of the complainant and accused admits the cheque belongs to his bank account and his signature found therein. However, -9- NC: 2023:KHC:30148 CRL.RP No. 18 of 2020 disputed that he had issued cheque to the complainant towards legally recovery debts. Ex.P.2 is the bank endorsement returning the cheque as account closed. Ex.P.4 is the legal notice dated 10.11.2008 issued by the complainant to the accused and Exs.P.5 and 6 are the postal receipt and certificate of posting.
13. Ex.P.7 is the postal acknowledgment for having served notice on the accused. Ex.P.8 is the complaint lodged by the complainant. Ex.P.9 is the affidavit filed by one Meena, wife of the accused-Ramakrisnappa in the suit OS.No.283/2005. Ex.P.10 is also a similar affidavit filed by Meena W/o Ramakrishnappa in the said suit. Ex.P.11 is the order sheet in OS No.283/2005 which was filed by Meena and Ex.P.12 is the plaint in OS. No.283/2005, where the plaintiff is Smt. Meena W/o M.Ramakrishnappa, aged 42 years, resident of No.32, I cross, Bagalakunte Nagasandra PO, Yeswanthapura Hobli, Bangalore 560 073.
14. It is pertinent to note that in the affidavit also, similar address is mentioned as Meena W/o Ramakrishna.
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NC: 2023:KHC:30148 CRL.RP No. 18 of 2020 The very same address is found in Ex.P.4 legal notice issued to the accused. Ex.P.14 is the deposition of the said Meena W/o M.Ramakrishnappa in CC. No.21106/2007. Ex.P.15 is the FIR registered on the basis of first information given by Smt. Meena and Ex.P.16 is the first information. Exs.P.18, 19 and Ex.P.21 to 23 are the photos which are admitted by the accused during cross- examination. Ex.P.20 is the sale deed.
15. Oral and documentary evidence placed before the trial court discloses that the accused has categorically admitted the cheque Ex.P.1 and his signature found therein and the witness admit issuance of cheque with his signature. The presumption under Sections 118 and 139 of NI Act comes into operation and it is for the accused to rebut the said presumption. Even though, PW1 was cross- examined at length, nothing has been elicited from her to disbelieve her version. The accused examined himself as DW1, but he has not probabalised his defence. The defence taken by accused that he has given blank cheque
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NC: 2023:KHC:30148 CRL.RP No. 18 of 2020 with his signature to the mother of the complainant is not probabalised.
16. It is relevant to refer to the decision of the Hon'ble Apex Court in M/s Kalamani Tex and another Vs P Balasubramanian1, wherein, the Hon'ble Apex Court recorded its various decision and held in paragraphs 15 and 17 as under:
"15. No doubt, and as correctly argued by Senior Counsel for the appellants, the presumptions raised under Sections 118 and Section 139 are rebuttable in nature. As held in M.S. Narayana Menon v. State of Kerala, which was relied upon in Basalingappa, a probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility. These principles were also affirmed in Kumar Exports, wherein it was further held that a bare denial of passing of consideration would not aid the case of accused.
17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption 1 (2021) 5 SCC 283
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NC: 2023:KHC:30148 CRL.RP No. 18 of 2020 cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar, where this court held that:
"36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
(emphasis supplied)
17. In view of the above, position of law is very well settled. When the complainant discharges his primary burden to prove issuance of cheque, the burden shifts on to the accused to rebut the presumption under Section 139 of NI Act. Even though the standard of proof required is only a preponderance of probability, the accused is not successful in probablising his defence. Under such circumstances, it is to be held that the complainant is successful in proving the guilt of the accused beyond reasonable doubt and therefore the accused is liable for conviction.
18. In view of the discussions held above, I am of the opinion that there is no merit in the contention taken by the
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NC: 2023:KHC:30148 CRL.RP No. 18 of 2020 petitioner. The Trial Court and the First Appellate Court have taken into consideration all the materials on record in a proper perspective and arrived at a right conclusion. I do not find any reason to interfere with the same. Hence, I answer the above point in the Negative and proceed to pass the following:
ORDER
(i) The revision petition is dismissed.
(ii) The amount in deposit, if any, be transmitted to the Trial Court to appropriate the same towards the fine amount and towards compensation.
Registry is directed to send back the Trial Court records along with copy of the order.
Sd/-
JUDGE BH List No.: 1 Sl No.: 10 CT:STK