Karnataka High Court
Sri C M Mallikarjunappa @ C M Mallinath vs Sri B G Sharanappa on 25 October, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.857 OF 2015
BETWEEN:
SRI C M MALLIKARJUNAPPA
@ C M MALLINATH,
S/O MAHADEVAPPA,
AGED ABOUT 42 YEARS,
R/O MEDAKERANAHALLI VILLAGE,
JAGALUR TALUK - 577553. ...PETITIONER
(BY MISS HEENA S.A, ADVOCATE FOR
SRI SANTOSH S GOGI, ADVOCATE)
AND:
SRI B G SHARANAPPA,
S/O CHANNABASAPPA,
AGED ABOUT 50 YEARS,
R/O BILICHODU VILLAGE,
JAGALUR TALUK - 577553. ...RESPONDENT
(BY SRI P M SIDDAMALLAPPA, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 17.7.2015
PASSED BY THE II ADDL. DIST. AND S.J., DAVANAGERE IN
CRL.A.NO.33/2013 AND SET ASIDE THE JUDGMENT AND
SENTENCE DATED 2.3.2013 PASSED BY THE J.M.F.C.,
JAGALUR, DAVANAGERE DIST. IN C.C.NO.120/2002 BY
ALLOWING THIS PETITION.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 05.10.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
This revision is filed by the accused challenging the judgment of conviction and order of sentence passed by JMFC First Class Court at Jagalur, in C.C.No.120/2002, dated 02.03.2013 and confirmed by II Additional Sessions Judge, Davanagere, in Crl.A.No.33/2013, vide judgment dated 17.07.2015.
2. For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case are as under:
That on 01.07.2001, the accused approached the complainant and borrowed a hand loan of Rs.1,50,000/- for his family necessity. It is also alleged that towards repayment of the said loan, he had issued a post dated cheque bearing No.008987, dated 01.08.2001 for Rs.1,50,000/-and he has also agreed to pay interest at the rate of 2% per month on the said amount. On the 3 presentation of the said cheque, it was dishonored for insufficient of funds and inspite of issuance of legal notice, accused has not paid the cheque amount and hence, a complaint came to be lodged.
4. On the basis of the complaint, the learned Magistrate has taken cognizance and issued process against the accused. Accused has appeared through his counsel and was enlarged on bail. The plea under 138 of Negotiable Instrument Act, 1881(for short N.I. Act) was framed and accused denied the same. The complainant was got examined himself as PW1 and two witnesses were examined as PW2 & PW3. Further, the complainant has placed reliance on seven documents marked at Ex.P1 to Ex.P7.
5. After conclusion of the evidence of the complainant, the statement of accused under Section 313 Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against him. He has denied the case of the complainant and further submitted 4 his written statement asserting that he had received Rs.1,50,000/- from Chikkappa i.e. DW4 and he paid the said amount and the cheque was given to him as a security, but the same was not returned.
6. It is further asserted that complainant is the brother-in-law of the said Chikkappa and they are colluding with each other the said cheque was being misused by the complainant. The accused himself got examined as DW1 and he got examined three witnesses as DW2 to DW4. Commissioner was also examined as CW1 and Ex.C1 & Ex.C2 were marked.
7. 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.4,00,000/- with a default sentence.
8. Against this judgment of conviction and order of sentence the accused approached II Additional 5 Sessions Judge, Davanagere, in Crl.A.No.33/2013. 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. Against these concurrent findings, the accused / revision petitioner is before this court.
9. Heard the arguments advanced by the learned counsel for the revision petitioner/accused and learned counsel for the respondent / complainant. Perused the records.
10. The learned counsel for the revision petitioner would contend that the allegations of the complaint are regarding payment of post dated cheque on 01.07.2001 in respect of availment of loan of Rs.1,50,000/-. He would contend that all the cheques in the same series were presented and encashed in 1996 itself. He would also assert that he had availed loan in 1996 to the tune of Rs.1,50,000/- from one Chikkappa and same is repaid in 6 installments, which is evident from documents produced from Ex.D3 to Ex.D10. He would also assert that Ex.D8 clearly establishes that the disputed cheque was issued to Chikkappa as he had admitted his signature and endorsement pertaining to the cheque bearing No.008987 in his favour. He would also contend that the handwriting expert's report clearly discloses that the handwriting in Ex.D3 to Ex.D10 and handwriting on the cheque are one and the same and this expert's opinion is not challenged. He would also assert that the financial status of complainant was disputed as he was only an agriculturist and there is no evidence regarding he having such a huge amount of Rs.1,50,000/- in 2001. Hence, he would assert that both the courts below have committed an error in mechanically convicting the accused on the basis of signature on the cheque without taking note of the defence set up by the accused and the defence evidence led by him, which establishes that the presumption in favour of the complainant stands rebutted. Hence, he would seek for allowing the revision.
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11. Per contra, the learned counsel for the respondent would contend that the cheque is in the name of the complainant and it bears his signature. He would also invite the attention of this court to cross-examination of DW1, wherein he has admitted the receipt of Rs.1,50,000/-. Hence, he would assert that both the courts below have rightly convicted the accused by imposing a reasonable sentence, which does not call for any interference. As such, he would seek for dismissal of the revision.
12. Having heard the arguments and after perusing the records, now the following point would arise for my consideration:
(i) Whether the judgment of conviction and order of sentence passed by the trial court and confirmed by the appellate court are perverse, arbitrary and erroneous so as to call for any interference by this court?
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13. It is the specific contention of the complainant that accused is his relative and he availed a loan of Rs.1,50,000/- from him on 01.07.2001 and in discharge of the debt, the cheque under Ex.P1 came to be issued. That the cheque, Ex.P1 belongs to the account of the accused and it bears his signature are undisputed facts. Hence, initial presumption under Section 139 of N.I Act is in favour of the complainant to the effect that the cheque was issued towards legally enforceable debt. However, it is a rebuttable presumption and accused can rebut the presumption on the basis of preponderance of probability by creating some dent in the case of the complainant.
14. It is an undisputed fact that complainant and accused are cousins. It is the specific contention of the accused that the sister of the complainant was given in marriage to Chikkappa and in 1996, he had availed loan of Rs.1,50,000/- from Chikkappa and returned the same in installments. In this context, he placed reliance on 9 Ex.D3 to Ex.D10. Further, Chikkappa is also examined as DW4. Chikkappa has not disputed Ex.D3 to Ex.D10.
15. Apart from that the complainant claims to be an agriculturist possessing about 4 to 6 acres of land. He asserts that he is having sufficient income, but his evidence discloses that except agriculture, he do not have any other source of income. It is hard to accept his contention that from agriculture having 4 to 6 acres of land, he could save more than Rs.1,50,000/- that too in 2001, which is a huge amount.
16. Further, it has also come in evidence that Ex.P1- cheque is of the same series and except this cheque, all other cheques were presented in 1996 and were encashed. If this version is looked into, then the defence raised by the accused appears to be more probable. Further, the complainant claimed that there was an agreement for payment of interest at the rate of 2%. If this version is accepted, then it is evident that it is not a friendly transaction, but it is a commercial 10 transaction. The complainant has not produced any documents to show his financial status.
17. The accused himself was examined as DW1. In his examination-in-chief, he has put forward the same defence regarding he receiving loan of Rs.1,50,000/- from Chikkappa and repayment and in this regard he relied on Ex.D1 to Ex.D10. The learned counsel for the respondent / complainant would invite the attention of the court to an admission made in page 16 of the cross- examination of DW1, wherein the accused is said to have admitted receipt of Rs.1,50,000/-, but this is a stray admission and it cannot be straight away accepted and it should be looked with other consistent evidence led by the accused. On perusal of the entire cross-examination of the accused and cross-examination of complainant, it is evident that all along, he has disputed the receipt of amount of Rs.1,50,000/ and he has got specific defence regarding availment of loan from Chikkappa and the disputed cheque-Ex.P1 given to Chikkappa as a security. 11 Hence, a stray admission cannot be given much importance.
18. Apart from that, the report of the Commissioner clearly discloses that the writing in Ex.P1 cheque and writing on Ex.D3 to Ex.D10 are one and the same. Admittedly, the writings in Ex.D3 to Ex.10 are in the handwriting of Chikkappa. Then it is for the complainant to explain how the handwriting of Chikkappa was found on Ex.P1, but there is no explanation from him. From Ex.D3 to Ex.D10, it is evident that some of the amount was regularly paid to Chikkappa and his son and same is also admitted by DW4-Chikkappa.
19. Ex.D8 is a material document in the instant case. DW4-Chikkappa admitted that Ex.D8 is in his handwriting and it bears his signature and Ex.D9 is issued by his son. He admits his handwriting in Ex.D8. On perusal of Ex.P8, which is admitted by Chikkappa i.e., DW4, it is evident that he received Rs.25,000/- and Rs.1,500/- is pending pertaining to cheque No.008987 12 and this is dated 06.08.2001. The cheque number referred in Ex.D8 itself is the disputed cheque produced at Ex.P1 in the instant case. Why Chikkappa has referred this cheque number while receiving his due is not at all explained either by DW4 or by the complainant. Hence, it is evident that Ex.D8 completely falsifies the claim of the complainant that the cheque-Ex.P1 was issued towards discharge of legally enforceable debt in his favour. On the contrary, Ex.D8 as admitted by DW4 Chikkappa clearly consolidates the defence set up by the accused himself and defence of the accused is consistent.
20. Apart from that, accused is not required to prove his defence beyond all reasonable doubt, but he is required to prove his defence on the basis of preponderance of probability. Interestingly, DW4 was not cross examined by the advocate for complainant regarding his admissions on Ex.D3 to D10. To some extent, DW4 has turned hostile and to that extent he was treated as hostile witness by the accused but his 13 examination in chief clearly establish that he has admitted Ex.D8 and further admitted that it bears his signature and contents were in his handwriting.
21. Looking to these facts and circumstances, burden shifts on the complainant to substantiate his case as the presumption available in his favour under Section 139 of N.I.Act was rebutted by the accused. But no such evidence was placed by the complainant to prove that he has paid Rs.1,50,000/- as hand loan and he had capacity to pay the same. Further he has failed to establish Ex.P1 cheque was issued to him and not to Chikkappa. The learned counsel for the respondent has only harped regarding this admission but as observed above a stray admission does not take away the consistent defence raised by the accused. Further, the contents of Ex.P1 and Ex.D3 to Ex.D10 are in the same handwriting as per experts report, which is not challenged. If the complainant is custodian of the cheque, how the contents were written by Chikkappa / DW4 is not at all explained. 14 All these facts and circumstances, clearly establish that the complainant has failed to bring home the guilt of the accused beyond all reasonable doubt. On the contrary, the accused has raised probable defence to rebut the presumption.
22. Both the courts below have failed to appreciate any of these aspects and on stray admission and on sole ground that cheque and signature have been admitted proceeded to convict the accused. They have not considered the defence of the accused and there is absolutely no analysis of Ex.D3 to Ex.D10. The entire approach of both the courts below is perverse and arbitrary which has resulted in miscarriage of justice. Considering these facts and circumstances, the judgment of conviction and order of sentence passed by the learned Magistrate and confirmed by the Learned Sessions Judge calls for interference by this court. Accordingly, the point under consideration is answered in the affirmative. Accordingly, I proceed to pass the following: 15
ORDER
(i) The revision petition is allowed.
(ii) The impugned judgment of conviction
and order of sentence passed by JMFC I
Class Court at Jagalur, in
C.C.No.120/2002, dated 02.03.2013 and confirmed by II Additional Sessions Judge, Davanagere, in Crl.A.No.33/2013, vide judgment dated 17.07.2015 are set aside.
(iii) The accused stands acquitted for the offences punishable under Section 138 of N.I.Act and bail bonds stand cancelled by setting him at liberty forthwith.
(iv) The amount in deposit made by the revision petitioner / accused shall be refunded to him.
Sd/-
JUDGE SS