Karnataka High Court
Sri. Indrakumar N vs Sri. Keshavamurthy S on 22 September, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:34564
CRL.RP No. 521 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 521 OF 2017
BETWEEN:
SRI. INDRAKUMAR .N,
AGED ABOUT 66 YEARS,
S/O NANJAPPA,
R/AT NO.686/03,
OMBR LAYOUT,
D. BANASWADI,
OPP. BDA WATER TANK,
BANGALORE-560 043.
...PETITIONER
(BY SRI. MALLIKARJUN .N.K, ADVOCATE FOR
SRI. A. SAMPATH, ADVOCATE)
AND:
SRI. KESHAVAMURTHY .S,
AGED ABOUT 41 YEARS,
Digitally S/O SHAMANNA .G,
signed by R/AT NO.105, 2ND CROSS,
RENUKAMBA MUNESHWARA NAGAR,
KG
PATTEGARAPALYA,
Location:
HIGH COURT VIJAYANAGAR,
OF BANGALORE-560 079.
KARNATAKA ...RESPONDENT
(BY SRI. S.N. MAHESH, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 3.4.2017 PASSED BY THE
LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CITY IN CRL.A.NO.207/2016 AND CONSEQUENTLY
SET ASIDE THE JUDGMENT DATED 4.1.2016 PASSED BY THE
XVIII A.C.M.M., BENGALURU CITY IN C.C.NO.27370/2014.
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NC: 2023:KHC:34564
CRL.RP No. 521 of 2017
THIS PETITION COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the accused challenging the judgment of conviction and order of sentence passed by XVIII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.27370/2014, dated 04.01.2016 and confirmed by the LIX Additional City Civil & Sessions Judge, Bangalore, in Crl.A.No.207/2016, dated 03.04.2017.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case are the complainant and accused are well acquainted with each other and the accused was owning 13 flats in Rammurthy Nagar, Bangalore and for interior decoration of those flats, he borrowed a sum of Rs.15,00,000/- from the complainant on 31.03.2012 by cash. On the same day he issued three post dated cheques of Rs.5,00,000/- each -3- NC: 2023:KHC:34564 CRL.RP No. 521 of 2017 in favour of the complainant drawn on Canara Bank, G.K.V.K. Branch, Bangalore. When the cheques were presented for encashment, all the cheques were returned with an endorsement "funds insufficient". The complainant got issued a legal notice and accused denied the transaction by replying the same. Hence, the complainant has filed the complaint.
4. The learned Magistrate has taken cognizance of the offence and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. The plea under Section 138 of the Negotiable Instruments Act, 1881 (for short N.I. Act) was framed against the accused and same is read over and explained to the accused. The accused pleaded not guilty and claims to be tried. To prove the guilt of the accused, the complainant was got examined himself as PW1 and placed reliance on 12 documents marked at Ex.P1 to Ex.P12.
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NC: 2023:KHC:34564 CRL.RP No. 521 of 2017
5. After conclusion of the evidence of the complainant, the statement of accused under Section 313 Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The accused has denied the transaction in his 313 Cr.P.C. statement, but admitted that he has issued the cheque but contents were got written by the complainant himself. Thereafter, the accused got examined himself as DW1, but did not choose to produce any documentary evidence in support of his defence. Initially, he has got examined one witness as DW2 in support of his defence, but however, the said witness did not offer himself for cross-examination and his evidence was strucked off.
6. 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 the N.I. Act by imposing sentence of fine of Rs.15,30,000/- with a default -5- NC: 2023:KHC:34564 CRL.RP No. 521 of 2017 sentence. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached LIX Additional City Civil & Sessions Judge, Bangalore in Crl.A.No.207/2016.
7. 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.
8. Being aggrieved by these concurrent findings, revision petitioner is before this court.
9. Heard the arguments advanced by the learned counsel for the revision petitioner and the learned counsel for respondent. Perused the records.
10. The learned counsel for the revision petitioner would contend that as the cheque was presented before the stipulated period, the complaint was premature and it was filed before the expiry of statutory period. He has also -6- NC: 2023:KHC:34564 CRL.RP No. 521 of 2017 taken up defence that the complainant has no financial capacity to advance a huge loan and when the financial capacity of the complainant is challenged, the presumption is not available in his favour. He would also assert that accused is suffering from Parkinson disease and hence, the complainant has failed to prove that the cheques were issued towards legally enforceable debt and sought for allowing the revision petition by setting aside the complaint.
11. Per contra, the learned counsel for the respondent would contend that the accused has nowhere raised the defence of presentation of the complaint as premature and first time this ground is urged in the revision. He would further assert that records issued by postal authority disclose that the notice was served on 13.09.2014 itself and hence, the question of now disputing that the complaint was premature does not arise at all. He would further assert that the financial capacity of the complainant has never challenged either in the reply -7- NC: 2023:KHC:34564 CRL.RP No. 521 of 2017 notice or in the evidence and hence, the said ground is not available. He would contend that admittedly, the cheque belongs to the accused and the signature on the cheuqe is admitted and as such, the presumption is in favour of the complainant under Section 139 of the N.I. Act and it is for the accused to rebut the presumption by raising a probable defence. Though the accused has raised the defence regarding handing over of the cheques to one Venugopal, the said defence was not proved and hence, presumption is not rebutted. As such, he would seek for dismissal of the revision petition.
12. Having heard the arguments and after appreciating the oral and documentary evidence, now the following point would arise for my consideration:
"Whether the Judgment of conviction and order of sentence passed by both the Courts below are perverse, arbitrary and erroneous so as to call for any interference by this Court?"
13. It is the specific contention of the complainant that the accused was owning thirteen flats in Ramamurthy -8- NC: 2023:KHC:34564 CRL.RP No. 521 of 2017 Nagar and towards the interior decoration of this flats, he secured a loan of Rs.15,00,000/- from the complainant on 31.03.2012 and issued three postdated cheques as per Ex.P1 to Ex.P3. The accused has not disputed that cheques Ex.P1 to Ex.P3 belong to his account and they bear his signatures, but however, he simply disputes that the cheques were issued towards legally enforceable debt and asserts that cheques were given to one Venugopal and they have been misused by the accused.
14. Since the cheques and signatures have been admitted, the initial presumption is in favour of the complainant under Section 139 of the N.I. Act. No doubt, the said presumption is a rebuttalbe presumption, but accused is required to raise a probable defence. In the instant case, the accused has raised a defence that the cheques were given as security to one Venugopal, but to substantiate the said contention, the accused has not produced any material evidence. Though he made an attempt to examine Venugopal, but the said person did -9- NC: 2023:KHC:34564 CRL.RP No. 521 of 2017 not turn up for cross-examination and hence, his defence is not acceptable and it cannot be said that he has raised a probable defence. No doubt the accused has replied to the legal notice issued by the complainant as per Ex.P10, but in Ex.P10 again he though raised the same defence, but he has not proved it. On the contrary, Ex.P12 establishes that the accused owned thirteen flats in Rammurthy Nagar and it is the specific assertion of the complainant that for interior decoration of the said flats, he availed the loan. Hence, assertions made by the complainant are more probable in view of the fact that the accused has failed to substantiate his defence.
15. During the course of the arguments, the learned counsel for the revision petitioner has much argued regarding the financial status of the complainant to advance a huge amount of Rs.15,00,000/-. But in the reply notice or in the evidence, the accused has nowhere denied the financial status of the complainant. When the financial status of the complainant is not denied, the
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NC: 2023:KHC:34564 CRL.RP No. 521 of 2017 question of now he asserting this ground does not arise at all and that defence is not available to the accused.
16. The learned counsel for the revision petitioner further asserted that regarding the complaint being premature and argued that postal acknowledgment Ex.P9 the seal is dated 16.09.2014, but whether it is 16.09.2014 or 15.09.2014 is not clear and this defence was never raised before the trial Court. Even otherwise, at first instance the accused has denied the transaction by putting forward his defence and now that defence is not established. The learned counsel for the revision petitioner has placed reliance on Apex Court decision, reported in (2014) 10 SCC 713 [YOGENDRA PRATAP SINGH VS. SAVITRI PANDEY AND ANOTHER], but when the accused has failed to prove his defence and when he has never raised the defence of premature complaint being lodged at initial stage, now he cannot agitate this aspect. The principles enunciated in the above cited decision will not come to his aid in any way. On the same point, he has
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NC: 2023:KHC:34564 CRL.RP No. 521 of 2017 also placed reliance on decision of Crl.A.No.100182/2014 dated 24.11.2022 [S.MUTHIAH vs. ANAND] and Crl.A.No.1229 of 2022 (Arising out of SLP (Crl) No.1415 of 2019) [GAJANAND BURANGE vs. LAXMI CHAND GOYAL] on the file of Apex Court. But as observed above, the same issue is not raised before the trial Court at initial stage and further, while receiving the legal notice, he did not put his date. Even in his reply notice-Ex.P10, there is no reference that the notice was received by him on a particular date.
17. On the contrary, the learned counsel for the respondent would contend that the postal track consignment report clearly establishes that notice was served on 13.09.2014 itself. Looking to these facts and circumstances, the principles enunciated in the above cited decisions will not come to the aid of the petitioner in any way. The learned counsel for the respondent has placed reliance on the following decisions:
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NC: 2023:KHC:34564 CRL.RP No. 521 of 2017
(i) The Apex Court decision in Crl.A.No.508/2019 (Arising out of Special Leave Petition (Crl.) 1883 of 2018) [ROHITBHAI JIVANLAL PATEL vs. STATE OF GUJARAT & ANOTHER].
(ii) The Apex Court decision in Crl.A.No.362/2022 (Arising out of Special Leave Petition (Crl.) No.1963 of 2019) [TEDHI SINGH vs. NARAYAN DASS MAHANT]
(iii) The Apex Court decision in Appeal (Crl.)1066 of 2001 (Special Leave Petition (Crl.) No.969 of 2001) [K.N.BEENA vs. MUNIYAPPAN AND ANOTHER]
(iv) The Apex Court decision in Crl.A.Nos.1233-
1235 of 2022 (Arising out of SLP (Crl.) Nos.7430-7432/2022 @ D.No.13470 of 2019) [P.RASIYA vs. ABDUL NAZER AND ANOTHER]
(v) The Apex Court decision in Crl.A.No.1731/2017 (Arising out of Special Leave Petition (Crl.) No.5451 of 2017) [M/S. METERS AND INSTRUMENTS PRIVATE LIMITED & ANOTHER vs. KANCHAN MEHTA] with Crl.A.No.1732/2017 (Arising out of Special Leave Petition (Crl.) No.5441 of 2017) with Crl.A.No.1733/2017 (Arising out of Special Leave Petition (Crl.) No.5449 of 2017).
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(vi) The decision of Delhi High Court in Crl.Rev.P.No.607/2016 [DILIP CHAWLA vs. RAVINDER KUMAR & ANOTHER]
(vii) The decision of Delhi High Court in Crl.L.P.No.567/2014 [LEKH RAJ SHARMA vs. YASH PAL GUPTA].
On perusal of the principles enunciated in the above cited decisions, it is evident that the defence regarding the financial status is required to be raised at the initial stage. Admittedly, in the instant case, no such defence has been raised and hence, the principles enunciated in the above cited decisions are directly applicable to the case in hand as the cheques and signature have been admitted and presumption is in favour of the complainant.
18. Looking to these facts and circumstances, both the Courts below have appreciated the oral and documentary evidence in proper perspective and have rightly convicted the accused. Further, a reasonable sentence is imposed and no illegality or infirmity is found in the judgment of conviction and order of sentence
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NC: 2023:KHC:34564 CRL.RP No. 521 of 2017 passed by both the Courts below so as to interfere with the judgment of conviction and order of sentence passed by both the Courts below. Hence, the point under consideration is answered in the negative and as such, the petition being devoid of any merits, does not survive for consideration and accordingly, it stands rejected.
The amount deposited by the accused before the Courts shall be paid to the complainant.
Sd/-
JUDGE DS List No.: 1 Sl No.: 13