Karnataka High Court
M/S Khushboo'S Restaurant vs Mr. Suhail Khan on 29 September, 2023
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CRL.RP No. 524 of 2016
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 524 OF 2016
BETWEEN:
1. M/S. KHUSHBOO'S RESTAURANT
(NOW NOT IN EXISTENCE)
WAS AT NO.25/2
MARUTHI COMPLEX
LAVELLE ROAD
BANAGLORE - 560 001.
2. SRI. RAJKUMAR GARG
S/O JAGDEESH PRASAD
AGED ABOUT 60 YEARS
3. SMT. SUSHMA GARG
AGED ABOUT 58 YEARS
W/O RAJKUMAR GARG
NO.2&3 ARE PRESENTLY
RESIDING AT NO.404
C WING, QUEENS CORNER APARTMENTS
QUEENS ROAD
BANAGALORE - 560 001.
...PETITIONERS
(BY SRI. RAMESH P KULKARNI, ADVOCATE)
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CRL.RP No. 524 of 2016
AND:
MR. SUHAIL KHAN
AGED ABOUT 34 YEARS
S/O ABBAS KHAN
AT NO.8/10, 6TH CROSS
JOSEPH LAYOUT
HENNUR MAIN ROAD
LINGARAJAPURAM
BANGALORE - 560 084.
...RESPONDENT
(BY MS. GEETA R SHINDHE, ADVOCATE FOR
SRI. RAJENDRA DESAI, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED 18/4/2015,
PASSED BY THE XXI ACMM IN C.C.NO.13171/2012 AND SET
ASIDE THE ORDER AND JUDGMENT IN CRL.A.NO.715/2015
DATED 19/3/2016 PASSED BY LXVI ADDITIONAL CITY CIVIL
AND SESSION JUDGE, AT BANGALORE (CCH-67), AND ETC.,
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 12.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:-
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CRL.RP No. 524 of 2016
ORDER
1. This Criminal Revision Petition is filed by the petitioners, being aggrieved by the judgment of conviction and order of sentence dated 18.04.2015 in C.C.No.13171/2012 on the file of the learned XXI Additional Chief Metropolitan Magistrate, Bangalore, and its confirmation judgment and order dated 19.03.2016 in Crl.A.No.715/2015 on the file of the learned LXVI Additional City Civil and Sessions Judge, Bangalore City (CCH-67), seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioners / accused are convicted for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'N.I. Act').
2. The petitioners are the accused before the Trial Court and appellants before the Appellate Court.
Brief facts of the case are as under:
3. It is the case of the complainant that, petitioner No.1 is the Company, petitioner Nos. 2 and 3 are the Partners. The petitioner Nos.2 and 3 being the Partners, stated to have approached the respondent to borrow a loan of Rs.10,00,000/- and assured the respondent that, they would repay the said amount within one month with 1% interest per month. It is -4- CRL.RP No. 524 of 2016 further stated that petitioner Nos.2 and 3 have executed two On-demand Promissory Notes and issued two post-dated cheques for the said transaction. The respondent as per the instructions of petitioner Nos.2 and 3 presented the said cheques for encashment on 17.03.2012, those cheques were returned as 'funds insufficient'. A complaint came to be lodged before the jurisdictional Magistrate.
4. To prove the case of the complainant, the complainant examined, in all, 4 witnesses as PWs.1 to 4 and got marked 12 documents as Exhibits P1 to P12. On the other hand, the accused have not led any evidence nor marked any documents on their behalf. The Trial Court after appreciating the oral and documentary evidence on record, convicted the petitioners for the offence stated supra. Being aggrieved by the same, the petitioners preferred an appeal before the Appellate Court, the Appellate Court confirmed the judgment of conviction rendered by the Trial Court. Being aggrieved by the same, the petitioners have preferred this revision petition seeking to set aside the concurrent findings.
5. Heard Shri Ramesh P.Kulkarni, learned counsel for the petitioners, and Ms. Geeta R.Shindhe, learned counsel -5- CRL.RP No. 524 of 2016 appearing on behalf of Shri Rajendra Desai, learned counsel for the respondent.
6. It is the submission of learned counsel for the petitioners that the judgment of conviction and order of sentence passed by the Trial Court and its confirmation order passed by the Appellate Court require to be set aside as the concurrent findings are perverse, illegal and opposed to facts and law.
7. It is the contention of learned counsel for the petitioners that petitioner No.3 is not a Partner to petitioner No.1 - Company and the cheques issued on behalf of the said Company would not fasten the liability. It is further contended that after execution of On-demand Promissory Notes and cheques to the respondent anticipating that the respondent would pay the amount, the respondent did not lend the amount as agreed upon by him. Therefore, the Trial Court and the Appellate Court failed to take note of the above-said fact and convicted the petitioners for the offence punishable under Section 138 of the N.I. Act, which appears to be erroneous and liable to be set aside. Making such submissions, the learned counsel for the petitioners prays to allow the petition. -6- CRL.RP No. 524 of 2016
8. Per contra, learned counsel for the respondent, justified the concurrent findings and submitted that it is admitted by the petitioner Nos.2 and 3 that they are the Partners of petitioner No.1 - Company and they have approached the respondent for financial assistance. The respondent after having paid the amount of Rs.10,00,000/- has obtained two On-demand Promissory Notes and two cheques.
9. It is further submitted that the Courts below after appreciating the oral and documentary evidence on record opined that, the petitioners were found guilty of the offence under Section 138 of the N.I. Act and recorded their conviction which is appropriate and not required to be interfered with. Making such submissions, the learned counsel for the respondent prays to dismiss the petition.
10. Having heard the rival contentions urged by the learned counsels for the respective parties and also perused the documents available on record, the findings of the Courts below in recording the conviction, the points which arise for my consideration are:
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i) Whether the concurrent findings recorded by both the Courts below in convicting the petitioners for the offence under Section 138 of the N.I. Act are sustainable?
ii) Whether the petitioners have made out grounds to interfere with the concurrent findings recorded by both the Courts below for conviction?
11. This Court being a Revisional Court, having regarded the scope and ambit envisaged to appreciate the facts and law, it is necessary to have a cursory look upon the evidence and also the law to ascertain as to whether any illegality or perversity or error committed by the Courts below in recording the conviction.
12. Before adverting to the evidence of PWs.1 to 4, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of BASALINGAPPA v. MUDIBASAPPA1, the Hon'ble Supreme Court summarized the principles of presumption as envisaged under Sections 118 and 139 of N.I. Act, para No.25 relevant to mention here.
1 (2019)5 SCC 418 -8- CRL.RP No. 524 of 2016 "25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof a for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
On careful reading of the dictum of the Hon'ble Supreme Court, it appears that the accused can raise a probable defence to rebut the presumption by conducting the cross-examination of PW.1. In the said cross-examination if any discrepancy and -9- CRL.RP No. 524 of 2016 contradictions are brought out, the Court can consider the said discrepancy and contradictions as a material contradiction and can be held that presumption stood rebutted. It is also guided us that the accused need not enter into the witness box to rebut the presumption.
13. In the present case, the petitioners contended that they had not received the amount of Rs.10,00,000/- despite having issued cheques and also executed On-demand Promissory Notes. It is needless to say that, in the cross- examination, the accused raised a contention that the respondent had no financial capacity to lend such a huge amount.
14. On the contrary, the respondent contended that he had lent the amount of Rs.10,00,000/- to the petitioners. In lieu of having paid the said amount, he has received two cheques and two On-demand Promissory Notes executed by the petitioners. In order to substantiate his financial capacity, he got examined his wife as PW.2 and she stated that she sold the property as per Ex.P12 - sale deed and she had kept the amount in her house. The said amount was given to the petitioners. PWs. 3 and 4 who are the friends of PW.1, PW.4
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CRL.RP No. 524 of 2016admitted in his cross-examination that On-demand Promissory Notes which are marked as Exs.P1 and P2 have been scribed by Sri.Kurram. However, he says that he did not know who had filled Exs.P3 and P4-cheques. Further, he says that the amount was paid to the petitioners by PW.1. PW.3 stated to be the scribe of Exs.P1 and P2. He further admitted that the writings found on Exs.P3 and P4 not belong to him. He has stated in his examination-in-chief that PW.1 paid Rs.10.00 lakhs to Sri.Rajkumar and his wife who are the petitioners herein.
15. The contention of the accused/petitioners that they have not received the amount, however, admitted the execution of On-demand Promissory Notes and cheques are concerned. It is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of ANSS RAJASHEKAR v. AUGUSTUS JEBA ANANTH2, para No.13 which reads thus:
"13. In the present case, it is necessary now to consider whether the presumption under Section 139 stands rebutted by the appellant-accused. The defence of the appellant is that he has not borrowed the amount of Rs 15 lakhs from the complainant as alleged nor had he issued the cheque (Ext. P-1) in discharge of a legally enforceable debt. Specifically, the defence of the accused is that no payment was made by the complainant to him, in discharge 2 (2020) 15 SCC 348
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of which the cheques have been issued. His defence was that the cheque was issued to the complainant on an assurance of a loan which would be obtained from a financial institution. This, as we have noted, was also the defence in reply to the notice of demand issued by the complainant."
On careful reading of the dictum of the Hon'ble Supreme Court, it makes it clear that the defence taken by the accused can be construed that, the presumption stood rebutted on the strength of not only cross-examination but also by the issuance of reply to the legal notice issued by the complainant/respondent.
16. In the present case, the accused issued a reply notice as per Ex.P11 and contended that despite issuing the cheques and executed the On-demand Promissory Notes, not received the amount. The burden obviously would be shifted to the respondent /complainant to disprove the contention. To disprove the onus which was shifted against the complainant, the complainant has to prove the case beyond all reasonable doubt. Mere saying that he had lent an amount of Rs.10.00 lakhs would not be sufficient to prove the legally enforceable debt. Applying the principle enunciated by the Hon'ble Supreme Court in the Anss Rajashekar stated supra, it can be
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CRL.RP No. 524 of 2016inferred that the complainant failed to establish that the cheques are carrying legally enforceable debt or liability. Therefore, the findings of the Trial Court and Appellate Court in recording the conviction without considering the Ex.P11 and cross-examination of the petitioners appear to be vague, perverse and illegal. Therefore, interference with the findings of the Trial Court and the Appellate Court in recording the conviction are required to be interfered and the said conviction are required to be set aside.
17. In the light of the observations made above, the points that arose for my consideration are answered as under:-
Point No.(i) - "Negative"
Point No.(ii) - "Affirmative"
18. Hence, I proceed to pass the following:-
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence dated 18.04.2015 passed in
C.C.No.13171/2012 by the learned XXI
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CRL.RP No. 524 of 2016
Additional Chief Metropolitan Magistrate,
Bangalore, and the judgment and order dated
19.03.2016 in Crl.A.No.715/2015 by the learned LXVI Additional City Civil and Sessions Judge, Bangalore City (CCH-67), are set aside.
Sd/-
JUDGE UN