Karnataka High Court
N Krishnappa S/O Narasappa vs K Kumar S/O Kempanna on 4 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2273, 2021 (1) AKR 581
Crl.R.P.No.765/2011
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL REVISION PETITION No.765/2011
BETWEEN:
SRI.N.KRISHNAPPA
SON OF NARASAPPA
AGED ABOUT 55 YEARS
RESIDING AT KACHOHALLI CROSS
NEAR SHREE LAKSHMI SAW MILLS
CHIKKA GOLARAHATTI
MAGADI MAIN ROAD, BANGALORE - 560 091
ALSO AT
LAKSHMI VENKATESHWARA METAL FINISHES
NO.7, MAHADESHWARASWAMY TEMPLE ROAD
KAMAKSHIPALYA
BANGALORE - 560 079 ... PETITIONER
(BY SRI.P.M.SIDDAMALLAPPA, ADVOCATE FOR
M/S.MYLARAIAH ASSOCIATES)
AND:
SRI.K.KUMAR
S/O KEMPANNA
AGED ABOUT 32 YEARS
RESIDING AT NO.35,
13TH 'A' CROSS, AGRAHARA DASARAHALLI
MAGADI MAIN ROAD
BANGALORE - 560 079 ... RESPONDENT
(BY SRI.C.R.SUBRAMANYA, ADVOCATE )
Crl.R.P.No.765/2011
2
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 AND 401 OF CR.P.C. PRAYING TO
SET ASIDE THE ORDER DATED 29.10.2010 PASSED BY
THE XXII ACMM AND XXIV ASCJ, BANGALORE IN
C.C.NO.15873/2003 AND ORDER DATED 11.04.2011
PASSED BY THE DISTRICT AND SESSIONS JUDGE AND
PRESIDING OFFICER, FAST TRACK COURT-IV,
BANGALORE IN CRIMINAL APPEAL NO.863/2010.
THIS CRIMINAL REVISION PETITION HAVING
BEEN HEARD AND RESERVED FOR ORDERS ON 22ND
OCTOBER 2020, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE MADE THE FOLLOWING:
ORDER
Aggrieved by the order of conviction and sentence recorded by the trial Court in C.C.No.15873/03 for the offences punishable under Section 138 of Negotiable Instruments Act, 1881 ('the NI Act' for short) and confirmed by the first appellate Court in Crl.A.No.863/2010, the petitioner is before this Court in the above revision petition.
2. On 13.06.2003 the respondent/complainant through his account in Canara Bank, Basaveshwarnagar Branch, Bengaluru presented the Cheque Ex.P2 dated 12.06.2003 for realization drawn on Bank of Baroda, Crl.R.P.No.765/2011 3 Kamakshipalya Branch, Bengaluru purportedly drawn by the petitioner, in his favour for Rs.2,75,000/-. The said Cheque was dishonoured as per return memo Ex.P3 dated 14.10.2003 with endorsement "Insufficient Funds". He presented the said Cheque again for realization on 02.07.2003. Again the Cheque was dishonoured as per memo Ex.P4 with the endorsement "Account Closed".
3. Thereafter the respondent issued notice Ex.P7 dated 16.07.2003 alleging that the petitioner had borrowed loan of Rs.2,00,000/- on 10.12.2002 and Rs.75,000/- on 15.03.2003 for his urgent needs and towards discharge of the said liability, he had issued the Cheque Ex.P2. In the notice it was further alleged that when the dishonour of the Cheque for the first time was informed to the petitioner, he requested to present the same once again. Therefore, it was presented for the second time on 02.07.2003 which was again dishonoured with endorsement "Account closed". Therefore, under the notice Ex.P7 the respondent Crl.R.P.No.765/2011 4 alleged that the act of the petitioner was fraudulent and called upon him to make good the Cheque amount within 15 days.
4. The notice sent under RPAD was returned to the sender as per postal cover Ex.P10 with the endorsement "Party absent". However, notice was sent under the certificate of posting. The petitioner replied the said notice as per Ex.P11 dated 31.07.2003. In the said reply the petitioner denied the availment of any loan from the respondent and claimed that the respondent is a total stranger to him and he does not know how the respondent came in possession of the said Cheque. In the reply notice he claimed that the respondent in collusion with some people who were inimically disposed against him has filed the complaint and called upon him to return the Cheque within 15 days failing which he will initiate the legal action.
5. On receipt of such reply, the respondent filed complaint under Section 200 Cr.P.C. before XVI A.C.M.M., Bengaluru seeking persecution of the Crl.R.P.No.765/2011 5 petitioner for the offences punishable under Section 138 of NI Act. Learned Magistrate took cognizance of the offence and registered the case in C.C.No.15873/2003. The records disclose that by an administrative order of the Principal City Civil Judge, Bengaluru the case was then transferred to XXII A.C.M.M. and XXIV Additional Small Causes Court, Bengaluru. On securing the petitioner, since he denied the substance of accusation, learned XXII A.C.M.M tried the petitioner.
6. The trial Court by the judgment dated 10.06.2005 convicted the petitioner and sentenced him to pay Rs.4,00,000/-. The petitioner challenged the said judgment and order in Crl.A.No.1390/2006 before the Fast Track (Sessions) Judge-V, Bengaluru. The Sessions Court allowed the said appeal on 09.09.2008 reversed the order of conviction and sentence on the ground that the petitioner was not given opportunity and remanded the matter for fresh consideration. On such remand, the Trial Court recorded further evidence affording opportunity to both the parties. Crl.R.P.No.765/2011 6
7. The respondent/complainant was examined as PW.1 and on his behalf Exs.P1 to Ex.P11 were marked. The petitioner himself got examined as DW.1 and got marked Ex.D1 the alleged passbook of his account. The petitioner was examined under Section 313 of Cr.P.C., with regard to the incriminating material.
8. After hearing both the parties by the impugned judgment and order dated 29.10.2010, the trial Court convicted the petitioner for the offence punishable under Section 138 of the NI Act and sentenced him to pay fine of Rs.2,90,000/-, in default to pay fine to undergo simple imprisonment for six months. Out of the fine amount, Rs.2,85,000/- was ordered to be paid to the respondent as compensation and Rs.5,000/- was ordered to be remitted to the State to defray the cost of prosecution.
Crl.R.P.No.765/20117
9. The Trial Court based the conviction and sentence on the following reasonings:
i) The petitioner-accused admits that the Cheque belongs to his account and it bears his signature. In the light of the presumption 118 and 139 of the NI Act, the accused had to rebut the said presumption by leading acceptable evidence. The accused claimed that he had borrowed loan from one Channegowda and issued the Cheques to him as security and Chennegowda and respondent/ complainant in collusion with each other to make wrongful gain have filed the complaint. However, in his reply notice no such defence referring to Channappa or Channegowda was taken. Therefore, that is only an after thought;
ii) The other defence of the accused was that the account on which Ex.P2 was issued was closed in the year 2001 itself. But Ex.D1 the alleged passbook of the said account does not disclose that the account was closed.
iii) The accused claimed that he had borrowed Rs.1,00,000/- from Chennappa in May 1998 and Crl.R.P.No.765/2011 8 towards that liability he had issued six blank cheques.
Out of said amount, his brother-in-law paid Rs.45,000/- to Chennappa, but no evidence was adduced to substantiate the contention. The accused has not issued any notice to Chennappa or Chennegowda alleging fraud. That circumstances goes against the accused.
10. In support of its judgment, the Trial Court relied upon the judgment of the Hon'ble Supreme Court in Rangappa vs. Mohan (AIR 2010 SC 1898) whereunder it was held that when the Cheque and signature on the Cheque are admitted, the presumption that Cheque was issued to discharge debt or liability arises.
11. The petitioner/accused challenged the order of conviction and sentence passed by the trial Court before the District and Sessions Judge, Fast Track Court-IV Bengaluru city in Crl.A.No.863/2010. The first appellate concurring with the Trial Court by the impugned order dismissed the appeal on 11.04.2011 and confirmed the judgment and order of the trial Crl.R.P.No.765/2011 9 Court. Therefore, the petitioner is before this Court in the above revision petition.
12. This being revision petition under Section 397 of Cr.P.C. the scope for re-appreciation of the evidence and interference in the impugned order is very limited. Unless it is shown that the impugned judgments and orders of the Courts below suffer perversity, illegality or impropriety, there is no scope for interference invoking the revisional power.
13. There is no dispute that the petitioner was running Electro-plating business under the name and style, Lakshmi Venkatesh Electro-platers. The respondent claimed that he was visiting to the petitioner's factory that is how he was acquainted with the petitioner. According to the notice Ex.P7 and the complaint, the petitioner borrowed loan of Rs.2,00,000/- in December, 2002 to improve his business and another sum of Rs.75,000/- in March, 2003 from the respondent and towards discharge of Crl.R.P.No.765/2011 10 that liability he issued Cheque Ex.P2 for Rs.2,75,000/- on 12.06.2003.
14. The respondent presented the Cheque for the first time on 13.06.2003 which was returned on 14.06.2003 with the endorsement "Insufficient Funds". The respondent claimed that when he approached the petitioner informing him about the dishonour of the Cheque, petitioner requested him to wait till 02.07.2003 promising to arrange the funds. Therefore, he presented the Cheque second time on 02.07.2003 which was returned with the endorsement "account closed".
15. Since the petitioner admitted that the Cheque Ex.P2 belonged to his account and his signature on the same, as rightly pointed out by the trial Court the presumption under Section 139 of the NI Act to the effect that the Cheque was issued towards discharge of debt or liability arises.
16. The defence of the accused in rebuttal was that he had issued Cheques to Chennappa and Crl.R.P.No.765/2011 11 respondent in collusion with Chennappa has managed to misuse one Cheque and filed complaint against him. As rightly pointed out by the trial Court, in the reply notice Ex.P11 there was no whisper with regard to he issuing Cheque to Chennappa or the alleged loan of Chennappa etc.
17. In fact the respondent in his notice Ex.P7 had given all the particulars of the Cheque number, if the Cheque was issued to Chennappa, the petitioner could have taken such defence at the earliest point of time in his reply notice. Further though the accused in the evidence claimed that he has taken action against Chennappa by filing complaint before Nelamangala Police, no evidence was adduced to substantiate the same. Therefore the trial Court and the first appellate Court rightly rejected the theory of Cheque being issued to Chennappa.
18. The next defence was that the concerned account of the petitioner was closed in the year 2001 itself, therefore, there was no occasion or chance for Crl.R.P.No.765/2011 12 him to issue Cheque in 2003 on that account or requesting the complainant to present the same for the second time. Ex.P4 does not state that the account was closed in 2001. When the accused took a specific defence that his account was closed in 2001 itself, the burden was on him to prove the said fact. Except his self serving testimony and Ex.D1 the alleged passbook of the said account the petitioner did not adduce any other evidence.
19. In Ex.D1 the alleged passbook there is nothing to show that the account was closed in the year 2001. Respondent disputed that Ex.D1. Despite that the petitioner did not summon any records of the bank or bank authorities to prove that the account in question was closed in the year 2001.
20. In reply notice Ex.P11 such defence of closure of the account in the year 2001 was conspicuously absent. If his account was closed in the year 2001 and Cheques were claimed to be issued subsequently on 12.06.2003, certainly the petitioner Crl.R.P.No.765/2011 13 could have asserted the same in his reply Ex.P11. Therefore, the trial Court and the first appellate Court rightly rejected the contention that the account was closed in the year 2001, therefore the issuance of the Cheque to the respondent in 2003 is doubtful etc.
21. Sri Siddamallappa, learned counsel appearing for the petitioner submits that despite the petitioner disputing the lending capacity of the respondent in his cross-examination, the respondent did not adduce any evidence to prove the same and the Courts below did not appreciate the said fact. In that context he relied on the judgment of the Supreme Court in Basalingappa vs. Mudibasappa 1.
22. As already pointed out when the petitioner admitted his signature on the Cheque and the fact that the Cheque belonged to his account, the respondent had the benefit of the presumption under Section 139 of the NI Act to the effect that Cheque was issued towards discharge of debt or liability. In the reply notice, the 1 (2019) 5 SCC 418 Crl.R.P.No.765/2011 14 petitioner did not dispute the lending capacity of the respondent.
23. In the cross-examination of PW.1, when he was questioned, how he pooled that much amount. PW.1 claimed that he was running 5-6 autorickshaws and he had pooled the cash of Rs.2,00,000/- for purchasing the site and he had kept that in his house. In his further cross-examination also PW.1 claimed that apart from the accused, he had rendered financial assistance to others also and earns Rs.500/- per day by his autorickshaws.
24. In the cross-examination of PW1, petitioner only asked whether PW1 could produce his SB account passbook or the account extract. There was no specific denial of respondent's autorickshow business. In the later part of the cross-examination, it was only suggested that the respondent was not possessing the funds of Rs.2,75,000/- which he denied. When possession of 5 - 6 autorickshaws and running of the business etc was not disputed, the mere suggestion that Crl.R.P.No.765/2011 15 he was not possessing funds does not rebut the presumption under Section 139 of the NI Act.
25. Further the petitioner in his Chief- examination affidavit no where disputed the respondent's lending capacity. When in the reply notice, he claimed that the respondent was a total stranger to him, in his affidavit dated 26.04.2006 in para 5 he claimed that the respondent Chennappa and 3 others on 27.12.2001 barged into his house and obtained the cheques under intimidation. That also goes to show that he is not consistent in his defence and his defence that the respondent was a total stranger is unacceptable. Further in his examination under Section 313 Cr.P.C. also petitioner did not claim that the petitioner had no lending capacity.
26. Since the defence of the petitioner regarding lack of lending capacity of the complainant was unacceptable, the judgment in Mudibasappa's case is not applicable. The Hon'ble Supreme Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Crl.R.P.No.765/2011 16 Fashion Linkers and others2 distinguished the judgment in Mudibasappa's case and further held that once the accused admits his signature on the Cheque and the Cheque pertains to his account, the presumption under Section 139 of the NI Act comes to the support of the complainant. It was further held that unless the accused rebuts the said presumption by acceptable evidence, he is liable to be convicted for the offence under Section 138 of the NI Act.
Having regard to the aforesaid facts and circumstances of the case and the judgment of the Hon'ble Supreme Court in APS Forex Services Pvt. Ltd. referred to supra, this Court does not find any illegality, impropriety or incorrectness in the impugned orders of the Courts below. Therefore, the petition is dismissed.
Sd/-
JUDGE akc 2 AIR 2020 SC 945