Karnataka High Court
H T Ravi vs H S Sheshegowda on 28 June, 2008
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23*" DAY OF JUNE 2003 I
BEFORE . I
THE HUMBLE MRJUSTICE K.N.KEsHAvANAa;%vA§éf;%SSiS I * > a
CRIMINAL REVISION P&TITIorgNo.1o4T;2Q{3s 4- _ IS "
BETWEEN:
H.T.RAV|. =
SIOLATE SRLTHIPPE caowm,
NA 41 YEARS,
Ri0.I-IUNISEMAKKI,
KOODUVALLIPOST. --_
CHIKMAGALUR TALUK & answer. _ T' .
"~;;I3ETITIONER
(BY sRI.B.H.sHmmNA AND SRI.A;$3;GIR'IS.H; ADVS.)
H.S.SH?ESHEGw.§.IIID:='.1,4 _
SlO.LAT'E sRz.sHAa9xAaE'II<;_ow'aA,
AiA48YEARS,
Rl0.HA£..L|H!TLL},
mock POST,
CHIKMAGALUR 'T!TLLIK$I DISTRICT.
I %%%%% ..RESPONDENT
%T(3Y sRI.Rj;a Tags:-IPANQE. ADV.)
TvI'THISI'L:r§S:II:NAL REVISION PETITION IS FILED UNDER
SECTION 3?9'0F CR.P.C BY THE PETITIONER PRAYING THAT
THIS IT'.ION'BLE COURT MAY BE PLEASED TO SET ASIDE THE
"'ORDER'»PASSED BY THE DISTRICT AND SESSIONS JUDGE,
A ..f»CHIOI{.MAGALUR, IN CRL.A.NO.152/2005 DATED 18.42006 AND
' SET_ASIDE THE ORDER PASSED BY THE PRINCIPAL JMFC,
' CI-IIKMAGALUR. DATED 26.9.2005 IN CC.No.1361i2002.
Tl-'HS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY. THE COURT MADE THE FOLLOWING:
/I
ORDER
The accused in CC No.1861i2GO2 on the fite of the Civil Judge 3. sure, Chikmagaiur, has filed this Regieion:if?o'fition' l- under Section 397 of CrP.C, questioning uh' correctness of the judgment dated 26.9.:200;Sj_'pcissed. . Magistrate convicting the accusedifo-t..the offence _punish_eb!eV under "
Section 138 of the Negofiable 'the NJ Act') and sentencing hirn 'imprisonment for six months and to pay. fine of to pay fine, to undergo simpleimpiisonneentiiori a _f_urther 'period of six months and also to vr'pey*-e':i:sun;ffir:of as compensation to the compiainant and1tire"~r§udgjrrsentV.__'dated 18.4.2oos passed by the Principal ieerssions Judge, Chikrnagaiur, in affi__r_ming the sudgment of conviction and »sentencevpass:ed the learned Magistrate. 'case of the complainant is as under;
* s 4_ That he is a Coffee Planter and the accused during August '2VfiG1"'purcnased Coffee seeds from him and towards value of the seeds purchased, the accused issued the cheque in V question for Rs.1,32.25G/- drawn on Karnamka Bank 1..td.. Chikmagaiur Branch. assuring that the cheque would be honoured on presentation. The complainant when presented the cheque for M examined one Basavegowda as DW2. However, he did not produce any documentary evidence.
5. The defence of the accused th_at««there:"efasA arc"
transaction between him and the compAtainant.fand that---.there_e}as some transaction between the complainant and one"'-ieifiufnarai'with whom he (accused) was carrying oti'i'tahsihessVt:y same office. After sometime. differencesiatosiehetween cornplainant and Kumara and in' that regaifd,:_Vonestay.-theviicoeeaelainant came to the office of Kut;zai'etTVpaz1d atterg said Kumera. he took away vtojicthepiaccused kept on the tabie and late-Vt th:eV.'saie""'cheque;Waccording to the defence of the accesecii' he 'heat:-ijnot:_'iseifcttiased any Coffee seeds from the comptaivnant andaheotvesii-not due any amount to the comptaihant. . "He"a¥eo Edeniedthe siphatvure appearing on the cheque in question. A 'heating both sides and on assessment of oral as Ewell ashdiocurnentary evidence, the teamed Magistrate by her V'_A§tietpnrent dated 26.9.2005 heid that the complainant has proved the puiit of the accused for the effence punishable under Section 138 of the N.i Act and in that View of the matter. she proceeded to record conviction against the accused and sentenced him as noticed above.
3 '7'. Being aggrieved by the said judgment ef conviction and sentence. the petitioner filed appeal before the learned Session Judge, Chikrnagaiur. in Crl.A.No.152I2005. After hearjingfhoth sides, the learned Session Judge by judgment » dismissed the said appeal and co_nfi£m_ed th'e"'jecigi9nent.V efvu "
conviction and sentence passed by the'learned:'Megist%ete'.'" V:B.eingié aggrieved by the judgment of the Triai Cowl as Vweillas; the ; Appeilate Ceurt. the accused has this Petition, interelia esntending that thefiourts j:ie'iow'»he2re faiiecl to see that the complainant has not proved-the_Ve;§istenoel~:Vef--.ciebt and that the cheque in euestionfiees iss--1,rectfo";r di'so:harge..oi such debt or legally enforcee.bie--.ii'abi1ity..':'t-Tfherefere-,. the judgments of the Couris below are contrary'-to the etricienoeilohnérecord, as such they are liable to be set aside». V " "'8.i--j'dponA servioeef notice of this petition, the respondent- ,._corn;$iein_eni ebgieared through his learned counsel. '3 liheiafelheard the teamed counsel appearing on both sides and oeh.:ssed.Vthe records of the Triai Court as well as the Aopeiiate AV " »CVei.i:t,A %/ff
10. in the facts and circumstances, the point that arise for my consideration is 'Whether the Courts below are jusflfied in holding that the accused is guilty of the offence punisheoleV"
Section 138 of the n.2 Act?"
11. As noticed above, it Es the caseofthe'con1pleln"eet"thet:' ' or the accused purchased Coffee seedsv'trong"'h.irrn ttser value of the Coffee seeds, the acooeed issued che:;§vu'ei..A:inMgueetion ; on 39.8.2001 and when the saidichoque presented for enoashment, it came to be_._}feturL1:edi« slnpeizalwipth an endorsement "ineuffictentfunde'.__ A h 9 l 112, The lrlens"§:lefi'Sodprente 'C3-ourt in a recent declsion in the case of Krishna Jahat vs. Dattatraya GJ-legole reported in 2008" 738, nae held that presumption under it Section ofrthe N3 Act would extend only to the effect that the Ai"che-qtie hee.ovheent*:l$sued for discharge of legally enforceable debt or lieoilitg.r'and:'~'that the presumption does not extend with regard to "tiizee exieteoce of legally enforceable debt or liability. Therefore, lt is A f.or-the complainant to prove the exlstence of legally enforceable __d__ébt or liability and if the complainant succeeds in proving the existence of legally enforceable debt or liability, then presumption has to be drawn under Section 139 of the NJ Act, that the cheque W us has been issued for discharge of such iegaliy enforceabte debt or liability. Ncdoubt, the said presumption is rebuttable and the accused-drawer cf the cheque is entitied to rebut presumption by ieading evidence. Therefore what is__rs.d.ci'redi'_i$be _ considered is whether the compisinsnt has »creved"thve.:e2<istence cf' " 'V V legally enforceable debt or liabiiity. i'\l{§jdoLl'i3tizl::i1e 'c.cn1pie4i'nei'it__Vh'esit not produced any dccumentary evidenceiiesiriow that _acc§Jseci » purchased Coffee seeds from him. life'prcvei:h'is'._iec't, reiies or:
his oral evidence and aisdthe ,gf..ithe repiyv/iiiiictice issued on behalf of the accused"es'_pVerh~'E§:.P.5~..:" evidence, the accused has notice as per Ex.F'.5 to the }<:_ounseiV'iierV--£_h:e.ccm'pla_inant in reply to the notice dated 39.9.2001' issued'onibeheif'"e.iLV'tiie complainant. Therefore, there is no dispute inst EV:r.VP;S isitheireply sent on behalf of the accused to . iit''theV''i'confi.§§ieinant. éVV'l5erusal cf the contents of Ex.P.5 clearly i-..ind§cetc--s:"thatVi'i'n.V:£he reply the accused has in categorical terms admpijtted',t.he:t%rensaction between him and the complainant. it is V'-..'necessery;i~to extract the reievent portion of Ex.P.5, end it reeds as 'Vienden " During the ymr 1997-98 my ciient along with one Sri.K.U.Kumera, Market Road, Chiirmageiur was doing coffee business. Your client is a coffee pisnter and is a distant reiative of my ciient. Your client approached my ciient with an offer to self the ccffee and requested my clieni & Sri.K.U.i<umere to give %:~/ best price. Because your client had closed acquaintance with my client, my client arid Sri.l<.U.i<umara agreed to purchaw the coffee;"?r'o:rlj_~--...::
your client on the condition mat payment L" i after a period of one month, Fcrwhicr2--'_'yozgr"
agreed and a cheque for the of 'c.rc;s-'f.,__V it drawn by my client in Vfmrour 'of 'your client mentioning the specific wflfterxa month your client epproachecllimy 'client cod rny client that the cheqa-Leis lcct cod t§3er§;¢:'ore requested my client to pay cash would return the is Because of close. clien_tWitl1 your ciient, believing cm my client paid cash 1cwarcsltfpg'ce" your client. Now my clientVccspectc"ttz§t*-.yoor client altering the date hec for encashment with an V .ir2tentlor3 metre Awroraoful gain for himself. My client that duo sum to your client much less 32,250/'- as claimed in your notice. Therefore, _ " irxiajt»-ciierrrf£'e.ic_jriot liable to pay any amount as claimed in A Please advice your client accordingly."
'A s 13'.sFrom the contents of Ex,P.5 extracted above, it is clear "trot 'flue accused has admitted that he purchased Coffee seeds
-rvtrom the ccmpiainant and towards the value of Coffee seeds so purchased, he issued the cheque in favour of the ccmpiainani. Ofccurse, he has set up a defence that after one month the complainant approached him to pay cash and accordingly he (accused) paid the emeunt in cash to the compwtaru. the cempiainant did not return 11% cheque. Vay wmnety before the reamw Mmmm, the accused goes er mying mm or cheque to me aemsssrore made by me wcLtaeriVt:r«..£f'rx.P§S,._ tar. e' e herding that the cenpesnant tm Iegdly enforceable liability is dearly estabaenee me me from me comptainent so purchased.
he issued the Courts below have rr.ey am Section 139 of the NJ Act to :5 question has been issued for
discherge oxfeueta tegelhreeferceable tiabiiity. What is rwuired to V' be eetistjderedzts ee'to'~~e'%uefl1er the accused has been able to rebut M'meTsaidpree§uepe9n. The defence taken by the accused in Ex.P.5 ie which he pursued during the triai before me learned Vtivteeietrate. He has taken entirely a different defence »5efor.e Court. That is the reason why the Courts below have ' that the defence of me accused 'rs not consistent and cannot " accepted. Therefore, the Courts beiew have held that the accused has failed to rebut the presumption drawn under Section 139 of the NJ Act. Having regard to the admission made by the '7 by accused in Ex.i°.5 and since he has not pursued me defence 'taken by him under Ex.P.5 during trial and since his defence takeniidulring triai is quite contrary to the defence set up in _ considered view, the Courts below are justified~ defence of the accused and they are fu:;ther.'iin' the accused has failed to rebutthe presutnptional betow have considered whether accused in Ex.P.5 is probabte. " vviiitaxpistrate recorded a detinia finding that even the nctll_probable and also not acceptable, for: sirapie itieaseniflwatvndprudent man would pay cash to taking the return of file cheitiliéihég Courts beiow have aiso noticed thatlif. reallrf paid the said amount in cash and ifthe compiainVa'ntdid"n'ot return the said cheque for some " open 'ct--the accused to obtain die receipt from tine 'con'ipiainanttvot.that effect. However. the accused has not done so. ltishfor that reason. the Courts below have rightiy heid that even the defence set out by the accused in Ex.P.5 cannot be accepted. V' A. 14: Having regard to the evidence on record, 1 am of the considered View that the Courts below are justified in hoiding that i accused is guilty of the offence punishable under Section 138 cf it the NJ Act. There is absolutely no error committed by the Courts M/' Q We ii below in recording such a finding. I see no ground to interfere with the said finding of the Courts below and therefore the judgment of conviction and sentence passed by die learned Megistiate'~andV_Vthe judgment of the Appeilate Court affirming the . deserves to be confirmed. a " ' V
15. The learned counsel for the rietitionergeccused that me Courts below are not justified inVVeentencineVtfje"e.geue$d ~. undergo simple imprisonment 1'0!' sixitzonths and i:he_V'saiVii. sentence V of imprisonment is excessive and &i.ii"i(.'-E.'-.'VVi_Vf'-*'i'.1 VVfcr_. It is the submission of the iearned counsei thsVtVtne' should have ordered only pn'yVrnVent~. coVVfieVred under the cheque as punishnze-nth. V V _ '$6. The" ieatnedi..couVnsel for the respondent-complainant subm;lVttedsi.that hevinti regard to the stand taken by the accused ,m'ek_ing ecousations against the compiainant, the sentence ordered thy is just and proper and there is no ground to interfere xyfrifii said order of the Courts beiow. 'i; see considerable force in the submission of the learned V tor the respondent. As noticed above, the accused at the eariiest point of time having admitted the transaction between himself and the complainant and having issued cheque towards the value of Coffee seeds so purchased by him from the cornpiainant, later during the aial before the learned Magistrate h_as"rnade: _ allegations against the complainant that the_.cernp!ain--aht.. committed theft of the cheque in signature. In the light of such wild allegations rnacie complainant, I am of the considerednriew that case for interfering with the senmace ordered learned hiagistrate. Having regard to the conddct'V sentence of imprisonment for itionihs '_pro_eer. This should be an eye-opener ror such contradictory defences ian'diiai!vsoAV':::§irgho totwimiafice such wild allegations. Thereforefihere is interfere with the order of sentence passed by the Iearnediiiriiagisuate and affirmed by the Session .....
"V'l8. lri7\j«'ie3}ér of the above discussions, I see no merit in this Revision ifietition.
it if " ., " ' _Accordingly. the Criminal Revision Petition is dismissed. Sd/~ Judge rnv*