Karnataka High Court
Rakesh vs Sujatha on 3 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1985, 2020 (1) AKR 223
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL REVISION PETITION NO.523/2016
C/W
CRIMINAL REVISION PETITION NO.1159/2016
In Crl.RP.No.523/2016
Between:
Rakesh
S/o Kempaiah
Aged 42 years
R/at No.173, 1st Floor
8th Main, 3rd Block
3rd Stage, Basaveshwaranagar
Bengaluru-560079. ...Petitioner
(By Sri Gopal Singh, Advocate-Absent)
And:
Sujatha
W/o late Sundar Rajan
Aged about 59 years
Address at: Akruthi Sunshine Apartments
Flat No.0002, 27th Main
Opposite Rock View Bar and Restaurant
HSR Layout
Bengaluru-560102. ... Respondent
(By Sri Nitish K.N for Sri K.V. Narasimhan, Advocate)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C., praying to set aside the orders dated
27.02.2016 in Crl.A.No.1257/2015 on the file of the LX
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Additional City Civil and Sessions Judge, Bengaluru as per
Annexure-A and also set aside the order dated 11.09.2015 in
C.C.No.29489/2014 on the file of the XXII A.C.M.M.,
Bengaluru as per Annexure-B and to acquit the petitioner of
the charge under Section 138 of N.I. Act and etc.,
In Crl.RP.No.1159/2016
Between:
Smt. Sujatha
W/o Sundar Rajan
Aged 60 years, No.530, 5th Stage
2nd Cross, 2nd Main, BEML Layout
Rajarajeshwarinagar
Bengaluru-560098. ...Petitioner
(By Sri Nitish K.N for Sri K.V. Narasimhan, Advocate)
And:
Sri Rakesh
S/o Kempaiah
Aged 43 years
R/at No.173, 1st Floor
8th Main, 3rd Block
3rd Stage, Basaveshwaranagar
Bengaluru-560079. ... Respondent
(By Sri Gopal Singh, Advocate-Absent)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C., praying to set aside the order dated
27.02.2016 passed by the LX Additional City Civil and
Sessions Judge, Bengaluru in Crl.A.No.1257/2015 to the
extent that the compensation ordered to be paid to the
petitioner is reduced from Rs.24,00,000/- to Rs.12,00,000/-
and thereby confirm the judgment of conviction and order of
sentence passed by the XXII ACMM, Bengaluru in
C.C.No.29489/2014 dated 11.09.2015 and etc.,
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These Criminal Revision Petitions coming on for
Orders this day, the Court made the following:
ORDER
The Criminal Revision Petition No.523/2016 has been filed by the petitioner/accused and the Criminal Revision Petition No.1159/2016 has been filed by the complainant challenging the judgment and the order of conviction and sentence passed by the LX Additional City Civil and Sessions Judge, Bengaluru (CCH-61) in Criminal Appeal No.1257/2015 dated 27.02.2016, whereunder the judgment of conviction and order of sentence passed by the XXII Additional Chief Metropoliton Magistrate, Bengaluru City in C.C.No.29489/2014 dated 11.09.2015 was confirmed and the order of sentence to pay the fine was modified to an extent of Rs.12,10,000/- (Rupees Twelve lakhs ten thousand only) and in default to pay the fine amount, he shall undergo simple imprisonment for a period of six months. The complainant has preferred the present petition challenging the modification and reducing the -4- fine amount ordered by the trial Court and also for requests for awarding the interest.
2. Though this case is listed frequently before this Court, the order sheet discloses the fact that the learned counsel for the petitioner/accused has remained absent and there is no representation.
3. I have heard the learned counsel for the respondent/complainant as well as the petitioner.
4. The learned counsel for the respondent has filed an application for early hearing. The same was disposed of since the case has been heard and decided on merits. In the absence of the learned counsel for the petitioner, the Criminal Revision Petition cannot be dismissed for default and it has to be heard and decided on merits as such it was taken on merits.
5. Before considering the contentions of both the parties, factual matrix of the case of the -5- complainant is that the complainant and the accused were known to each other. The accused approached the complainant in the month of May 2014 for a hand loan of Rs.12 lakhs. The complainant paid the said amount during the last week of August 2014. The accused promised to repay the said amount within three months, but he did not keep up his promise and in order to discharge his liability, he issued cheque bearing No.206500 dated 16.09.2014 for a sum of Rs.12,00,000/- drawn on Axis Bank Ltd., Basaveshwaranagara, Bengaluru. On the assurance of the accused, the said cheque was presented for encashment and it was dishonored with shara as "Funds Insufficient" and the bank gave an endorsement on 17.09.2014. Thereafter, the complainant got issued legal notice dated 25.09.2014 calling upon the accused to give the cheque amount. The said notice was served upon accused on 26.09.2014, but no reply has been given. Since no amount has been paid within the -6- stipulated time, the complaint was registered. The trial Court took cognizance after recording the sworn statement and secured the presence of the accused. Thereafter, the plea of the accused was recorded and in order to prove the case of the complainant, complainant got examined himself as PW.1 and got marked Exs.P1 to P6. Thereafter, the statement of the accused was recorded by putting incriminating material as against him. The accused got examined himself as DW.1 and got marked Exs.D1 to D4.
6. After hearing the learned counsels, the trial Court came to the conclusion that the complainant has proved the case and accused was convicted under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to pay a fine of Rs.10,000/-. In default to pay fine, he shall undergo simple imprisonment for a period of three months and an amount of Rs.24,00,000/- has been awarded as compensation. Challenging the same, the appellate -7- preferred the Criminal Appeal No.1257/2015. The same was also disposed of by judgment dated 27.02.2016 by modifying the sentence of the trial Court. Being aggrieved by the said judgment, both the accused as well as the complainant are before this Court.
7. The main grounds urged by the learned counsel for the petitioner/accused in his petition are that the trial Court has erred in convicting the petitioner/accused. Though there is no material as against the petitioner/accused, the trial Court has erroneously passed the order. There are contradictions in the statement of the complainant with regard to lending of the amount. The same have not been properly considered and appreciated by the trial Court. The trial Court has not properly considered Exs.D1 to D4. Ex.D2 clearly goes to show that there was a dispute with regard to the amount given and the said matter went up to the Police Station and the police gave an endorsement stating that the matter is civil in nature. -8- He further submitted that the respondent/complainant is a money lender and used to charge interest exorbitantly. He further submitted that Ex.P1 contains over writing and the word 'lakhs' has been corrected. That itself goes to show that the said cheque has not been properly read by the trail Court. It is his further submission that the trial Court without considering the material has erroneously passed the impugned order. On these grounds, he prays to set aside the impugned judgment of conviction and order of sentence and acquitted the accused.
8. Per contra, the learned counsel appearing on behalf of the respondent/complainant vehemently argued and submitted that the accused has borrowed a sum of Rs.12,00,000/- and he has issued the cheque as per Ex.P1. It is his further submission that the accused has admitted that the loan transactions were existing between the complainant and the accused and the accused is the son's friend and it is the contention of -9- the petitioner/accused that he has discharged the said loan, which has been taken with the complainant. But, in order to substantiate the said fact not even a single piece of evidence has been produced. It is his further submission that the accused/petitioner has taken inconsistent stand, at one stretch he contended that monthly he used to pay Rs.30,000/-. Thus, he has given a full amount of Rs.12,00,000/-, but at another stretch he says that he has only taken Rs.4,00,000/- and Rs.2,00,000/- and for the purpose of security, he has issued the said cheque. He further submitted that the trial Court after considering the facts and circumstances have rightly convicted the accused. It is his alternative contention that though the trial Court has convicted the accused and has ordered to pay compensation to an extent of Rs.24,00,000/- i.e., double the cheque amount. But, the First Appellate Court without assigning any reason has modified and convicted the accused only to pay Rs.12,00,000/-. Even
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though the said transaction has been taken place during the year 2014 and if the said amount is kept idle, he would have received interest for that amount, which is lost by him. In this behalf, he also prays to award minimum interest at least at the rate of 9% p.a. On these grounds, he prays to dismiss the petition filed by the petitioner/accused and allow this petition as prayed for.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
10. As could be seen from the records, it is the specific contention of the complainant that during the month of May 2014, the accused approached the complainant and asked for a hand loan of Rs.12,00,000/- and he has paid the said amount in the month of August 2014 and the accused has issued a cheque bearing No.206500 dated 16.09.2014 and the
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same has been reiterated in his evidence. It is the specific defence of the accused that he has taken a loan of Rs.6,00,000/- from the complainant and at that time, he issued a signed blank two cheques for the purpose of security by mentioning Rs.4,00,000/- and Rs.2,00,000/- each. It is his further contention that from 2009 upto 2014 he has deposited an amount of Rs.30,000/- p.m. and he has paid the complainant an amount of Rs.12,00,000/-. It is his further contention that he produced Exs.D1 to D4 to substantiate the fact that in pursuance of the money transactions, the complaint was registered and an endorsement has also been given by the Police to the effect that the said litigation is a Civil litigation. But on going through the entire material including the evidence of the lower Court, the contention of the accused is that he has taken the amount and he has discharged the said amount by paying Rs.30,000/- p.m. and it is his further contention that he has taken only Rs.6,00,000/- and
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paid Rs.12,00,000/- by monthly installment. It is a well settled proposition of law that if accused admits the signature and the issuance of the cheque belonging to his accounts, then under such circumstances the Court has to draw a mandatory presumption under Section 139 of the Negotiable Instruments Act, 1881 (the 'Act' for Short) to show that there exists a legally enforceable debt or liability. The said presumption is no doubt a rebuttable presumption and it is open for the accused to raise any defence and he can rebut the said presumption as raised under Section 139 of the Act. This proposition of law has been laid down by the Hon'ble Apex Court in the case of RANGAPPA VS. SRI MOHAN REPORTED IN (2010) 11 SCC 441 at paragraph No.16, which reads as under:
"16. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that:
"6. Once the cheque relates to the account of the accused and he accepts and admits the
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signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption.
What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court.
The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. ..."
Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had
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been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the High Court recorded a finding of conviction".
11. Keeping in view the said proposition of law laid down by the Hon'ble Apex Court and on perusal of the records, the petitioner/accused has taken up specific defence that he has barrowed only an amount of Rs.6,00,000/- and he has issued two cheques for a sum of Rs.4,00,000/- and Rs.2,00,000/- as a security. But when once he admits that the loan transaction was there and it is only for Rs.6,00,000/-, then he has to substantiate the said fact by cogent and acceptable evidence. I am conscious of the fact that while rebutting the presumption, no strict proof of evidence is required. Only on preponderance of probabilities, the said contention can be proved by the petitioner/accused. But on close reading of the defnece and the evidence produced, he has contended that since 2009 to 2014, each month he went on giving Rs.30,000/- to the complainant and he has paid totally an amount of Rs.12,00,000/-. But, admittedly when the complainant has
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made out a case that the accused has approached him in the month of May 2014 and has borrowed a sum of Rs.12,00,000/- for his necessity, he has issued the cheque bearing No. 206500 dated 16.09.2014 and even that the petitioner/accused has also admitted that he has taken Rs.6,00,000/- and he has issued the two cheques for a sum of Rs.4,00,000/- and Rs.2,00,000/-. Then under such circumstances, the contention of the petitioner/accused that from the year 2009 to 2014 each month he went on deposited Rs.30,000/- and he has discharged Rs.12,00,000/- cannot be acceptable and when the transaction itself is of the year 2014, question of paying amount from 2009 to 2014 does not arise at all. The said defence itself appears to be a false defence only to over come the liability.
12. Be that as it may, even as could be seen from Exs.D1 to D4, the statement given by PW.1 and the complaint given by the accused and substantiate endorsement said to have been given by the Police,
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nowhere it substantiate the case of the accused that some dispute arose and the complaint has been registered before the Police and the Police have given an endorsement stating that it is a Civil transaction and the parties have to approach the Civil Court.
13. Keeping in view the said facts and circumstances, the contentions that have been raised by the learned counsel for the petitioner in each petitions are not acceptable and that they are not having any force. The Courts below have rightly appreciated the evidence and rightly convicted the accused.
14. It is the specific submission of the learned counsel for the petitioner/complainant that the trial Court has wrongly modified the judgment of the trial Court and has only asked the accused to pay Rs.12,10,000/- instead of imposing a proper sentence. As could be seen from Section 138 of the Negotiable Instruments Act, 1881, if accused has been punished,
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the Court may impose a punishment of imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or both. When the law itself mandates that when ever the accused has been convicted, then under such circumstances, the fine amount may be extended up to twice the amount of the cheque.
15. In that light, the First Appellate Court has not assigned any special reasons and has erroneously modified the order of the trial Court. No doubt that the trial Court has awarded compensation of Rs.24,00,000/- and the First Appellate Court has modified and imposed a fine of Rs.12,10,000/-.
16. Keeping in view the said proposition of law, I feel that whenever the accused is punished and sentenced, then under such circumstances, proper sentence defeating the offence has to be made. The First Appellate Court without assigning any reasons has
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come to a wrong conclusion. In that light, the petitioner/accused has made out a case to modify the judgment of the First Appellate Court.
17. Keeping in view the above said facts and circumstances, the petition filed by the petitioner/accused in Criminal Revision Petition No.523/2016 is dismissed as devoid of merits. Insofar as the Criminal Revision Petition No.1159/2016 is concerned, the same is allowed and the sentence imposed by the First Appellate Court has been set aside in respect of modifying the sentence and the petitioner/accused is sentenced to pay fine amount of Rs.24,00,000/- (Rupees Twenty Four Lakhs Only) and in default to pay the fine amount, he shall undergo simple imprisonment for a period of six months.
18. Though the learned counsel for the petitioner contended that the complainant has asked for interest, I feel that when double the cheque amount has
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been awarded as a fine, under such circumstances, the said contention does not survive for consideration.
With the above observations, the Criminal Revision Petitions are disposed of.
I.A.No.1/2019 for early hearing is disposed. Out of the fine amount of Rs.24,00,000/- an amount of Rs.23,00,000/- has to be paid to the complainant and Rs.1,00,000/- has to be forfeited to the Government towards expenses.
Sd/-
JUDGE ssb