Karnataka High Court
Smt. M Suguna vs Sri Muni Krishna on 20 February, 2014
Equivalent citations: 2014 ACD 1097 (KAR), (2014) 140 ALLINDCAS 580 (KAR), (2014) 2 KANT LJ 582, (2014) 4 KCCR 3079, (2014) 4 BANKCAS 7(1)
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO. 1074/2012
BETWEEN:
SMT. M. SUGUNA
W/O LATE D. VENKATESH
AGED ABOUT 49 YEARS
NO.2 NAGAYANA PALYA
M.S. NAGAR POST
BANGALORE-560 033.
...PETITIONER
(BY SRI. D.R.P. BABU, ADV.,)
AND:
SRI. MUNI KRISHNA
S/O MUNI BYRAPPA
PROPRIETOR S.R.S. WINES
SHOP NO.655/2A
KHATA NO.1545 OF SITE NO.74
RAMASWAMY PALYA
BANGALORE-560 033.
... RESPONDENT
(BY SRI. JAYARAMAIAH, ADV.,)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 CR.P.C. PRAYING TO SET ASIDE THE
IMPUNGED ORDER DATED 24.10.11 PASSED IN
C.C.NO.4406/08 ON THE FILE OF THE XIII ADDL. C.M.M.,
BANGALORE AND ALSO THE JUDGMENT DATED 4.10.12
PASSED BY THE P.O., FTC-IX, BANGALORE CITY IN CRL.A.
NO.826/11.
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THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
This Criminal Revision Petition is preferred against the judgment dated 24.10.2011 in C.C.No.4406/2008 on the file of the XIII, Additional Chief Metropolitan Magistrate, Bangalore, convicting the petitioner for the offence punishable under Section 138 of N.I. Act and sentencing him to pay a fine of Rs.6,45,000/- and the judgment dated 04.10.2012 in Criminal Appeal No.826/2011 on the file of the Presiding Officer, Fast Track Court - IX, Bangalore City, whereby the judgment of conviction and sentence passed by the Magistrate came to be confirmed while dismissing the appeal.
2. The petitioner herein was the accused before the Magistrate and the respondent was the complainant. On the request of the accused, the complainant advanced a sum of Rs.5,00,000/- to the accused by way of cheque which has been duly encashed by the accused. Towards repayment of the 3 loan amount, originally the accused issued three cheques for Rs.2,00,000/- dated 01.03.2006, Rs.2,00,000/- dated 01.04.2006 and Rs.1,25,000/- dated 01.05.2006. Before the said cheques could be presented, the accused sought for some more time for the repayment and thereby she issued a cheque in question for Rs.6,38,000/- dated 26.11.2007. On presentation of the said cheque, it came to be dishonoured for the reasons "insufficient funds". As such, the complainant issued a legal notice to the accused informing the factum of the dishonour of the cheque and calling upon her to pay the cheque amount within a period of 15 days from the date of service of notice. The accused instead of repaying the cheque amount gave untenable reply which made the complainant to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act.
3. The accused having denied the accusation, the complainant in order to prove the charge levelled against the accused, examined himself as PW-1 and one 4 P. Rama Bhat as PW-2 and marked Exs.P1 to P15. The accused, on the other hand, got herself examined as DW-1. Learned Magistrate upon hearing both the learned counsel appearing for the parties and upon appreciation of the evidence on record by judgment dated 24.10.2011 convicted the accused for the offences punishable under Section 138 of N.I. Act and sentenced her to pay a fine of Rs.6,45,000/- apart from ordering for the payment of compensation amount of Rs.6,38,000/- and in default, to undergo Simple Imprisonment for a period of one year.
4. The judgment of conviction and sentence was questioned in Criminal Appeal No.826/2011 on the file of the Fast Track Court-IX, Bangalore City. Learned Presiding Officer of the Fast Track Court, on re- appreciation of the evidence and upon hearing the counsel appearing for the parties by his judgment dated 04.10.2012 dismissed the appeal while confirming the judgment of conviction and sentence passed by the Magistrate.
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5. The petitioner/accused has called in question the order passed by both the Courts below.
6. I have heard the learned counsel for the petitioner and the respondent. Perused the certified copies of the records produced by the learned counsel for the respondent.
7. Learned counsel for the petitioner-accused has submitted that the complainant was residing in the house belonging to the accused as a tenant and in that connection they were acquainted with each other and the accused has executed General Power of Attorney in favour of the complainant and by misusing the General Power of Attorney he created all the documents and filed a false case against her.
8. Per contra, learned counsel for the respondent-complainant has argued that the accused had obtained a loan amount of Rs.5,00,000/- which was paid to her by way of cheque which has been 6 encashed by her and the cheque issued by the accused towards repayment of loan was dishonoured and inspite of notice to that effect, she has not come forward to pay the cheque amount and thereby she committed an offence under Section 138 of N.I. Act and rightly both the Courts below have convicted her for the offence punishable under Section 138 of N.I. Act. Hence, he sought for dismissal of the revision petition.
9. It is the case of the complainant that the accused approached the complainant for a loan amount of Rs.5,00,000/-, which the complainant paid by way of cheque which has been duly encashed by the accused. Though the accused has not denied for having received the loan amount for Rs.5,00,000/- from the complainant, by the evidence of Bank Manager who is examined as PW-2, the complainant has established that the cheque issued by the complainant for Rs.5,00,000/- in favour of the accused has been duly encashed by her and amount has been paid to her by Bank Authorities. Now, it is for the accused to establish 7 the repayment of the loan amount. The case of the complainant is that towards repayment of the loan amount the accused issued three cheques for Rs.2,00,000/- dated 01.03.2006, Rs.2,00,000/- dated 01.04.2006 and Rs.1,25,000/- dated 01.05.2006. After issuance of those cheques, she approached the complainant and sought for some more time and by granting some more time the complainant obtained the cheque in question from the accused in lieu of the cheque already issued by her marked as Exs.P11, P12 and P13. But those cheques were never presented by the complainant in lieu of the cheque in question given by the accused for Rs.6,38,000/- issued by the accused on 26.11.2007 drawn on South Indian Bank Limited, Bangalore. The cheque-Ex.P1 was presented for encashment, it came to be dishonoured with an endorsement by the bank authorities "insufficient funds". Ex.P4 is Account Extract pertaining to the bank account of the complainant to show that an amount of Rs.5,00,000/- has been withdrawn by the accused in 8 pursuance of the cheque issued by the complainant in favour of the accused. Ex.P5 is the copy of the legal notice issued to the accused informing the factum of dishonour of the cheque. Ex.P6 is the receipts for having sent the notice by RPAD. Ex.P7 is the receipts for having sent the notice by Under Certificate of Posting. Ex.P8 is postal acknowledgement due for having received the notice by the accused sent by RPAD. Ex.P9 is reply notice given by the accused. Ex.P14 is the copy of the legal notice pertaining to the dishnour of the earlier three cheques. It appears after receipts of this notice, the accused approached and sought for some more time and by taking interest factor into consideration, the complainant obtained cheque from the accused as per Ex.P1 for Rs.6,38,000/-. Thus, all the mandatory requirements to file a complaint under Section 138 of N.I. Act have been fulfilled. The complainant having proved the advancement of Rs.5,00,000/- to the accused by way of cheque, it is for the accused to prove that she has paid the loan amount 9 of Rs.5,00,000/- taken from the complainant. The accused has failed to place on record any material to substantiate the same. The accused failed to rebut the presumption that the cheque issued by her is towards her legal liability. Thus, the complainant has proved that the accused committed an offence punishable under Section 138 of N.I. Act. Learned Magistrate as well as learned Sessions Judge have appreciated the evidence placed on record in its proper perspective and have come to the right conclusion. I do not find any illegalities or irregularities committed by both the Courts below. There is no merit in this revision petition. Hence, I pass the following order.
Criminal Revision Petition is dismissed.
Sd/-
JUDGE PMR