Karnataka High Court
Smt M Shashikala vs Mr S Wilfred on 1 March, 2023
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.RP No. 699 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRL.R.P. No. 699 OF 2014
BETWEEN:
SMT. M. SHASHIKALA
AGED ABOUT 37 YEARS
W/O P. NARAYANAPPA
ADVOCATE, R/AT "THEE TURST"
NO.149, FIRST FLOOR, 7TH CROSS
10TH MAIN, WATER TANK ROAD
2ND STAGE, INDIRANAGAR
BANGALORE - 560 038.
...PETITIONER
(BY SRI P. NARAYANAPPA, ADV.)
AND:
Digitally signed
by B A
KRISHNA
MR. S. WILFRED
KUMAR S/O LATE C. SAMUEL,
Location: High
Court of AGED ABOUT 59 YEARS
Karnataka
R/AT NO.C-102, NORTH 7TH LANE
I.T.I COLONY, DOORVANI NAGAR
BANGALORE - 560 060.
...RESPONDENT
(BY SRI P.B. RAJU, ADV.)
THIS CRL.R.P. IS FILED U/S.397 CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT AND IMPUGNED ORDERS AS
HEREUNDER THE IMPUGNED JUDGMENT AND IMPUGNED ORDER
DATED:13.3.14 IN CASE BEARING NO.C.C.NO.27573/12 PASSED BY
THE XIV ACMM, MAYOHALL UNIT, BANGALORE VIDE ANNEXURE-J
AND ETC.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This Criminal Revision Petition under Section 397 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') has been filed -2- CRL.RP No. 699 of 2014 by the petitioner challenging the judgment and order of conviction and sentence passed by the Court of XIV Addl. C.M.M, Bengaluru (for short the 'Trial Court) in C.C.No.27573/2012 dated 13.03.2014 and the judgment and order passed by the FTC-3, Mayo Hall Unit, Bengaluru (for short the 'Appellate Court') in Crl.A.No.25055/2014 dated 22.08.2014.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
3. Brief facts as revealed from the records that would be necessary for the purpose of disposal of this revision petition are, the respondent - complainant had filed a private complaint before the Trial Court under Section 200 of Cr.P.C., against the petitioner herein for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, the 'N.I. Act') alleging that the petitioner had borrowed a sum of Rs.3,00,000/- from the respondent for the purpose of business and towards repayment of the same, she had issued a cheque bearing no.475809 dated 01.08.2012 in favour of the respondent for Rs.3,00,000/-. The said cheque on presentation for realization was dishonoured with the Bank endorsement -3- CRL.RP No. 699 of 2014 "Funds insufficient" and therefore the respondent had issued a statutory demand notice to the petitioner which was duly served on her. However, the petitioner had not replied to the same nor has she paid the cheque amount. Under the circumstance, the respondent had filed private complaint against the petitioner, based on which a case in C.C.27573/2012 was registered against the petitioner before the Trial Court.
4. In the said proceedings, the petitioner after service of summons had appeared before the Trial Court and pleaded not guilty. To substantiate his case, the respondent- complainant had examined himself before the Trial Court as PW.1 and also got marked 7 documents as Exs.P1. to P7. The petitioner - accused having denied the incriminating circumstances available on record against her during the course of Section 313 of Cr.P.C., statement had led defence evidence and examined herself as DW.1 and got marked 11 documents as Exs.D1 to D11. The Trial Court thereafter heard the arguments addressed on both sides and by its judgment and order dated 07.10.2013 convicted the petitioner for the offence punishable under Section of 138 of N.I. Act and sentenced her -4- CRL.RP No. 699 of 2014 to undergo Simple Imprisonment for 3 months and under Section 357(3) of Cr,P.C, the petitioner was directed to pay compensation/fine of Rs.4,10,000/-. The appeal filed by the petitioner against the said judgment and order of conviction and sentence in Crl.A.No.25055/2014 was dismissed by the appellate Court vide its judgment and order dated 22.08.2014. It is under these circumstances, the petitioner is before this Court in this revision petition
5. Learned counsel for the petitioner submits that the cheque in question was issued by her to her brother-in-law Shambaiah. He submits that the said Shambaiah had handed over the same to the respondent who had misused the said cheque. He submits that the petitioner is not liable to pay any amount to the respondent and the respondent has failed to establish before the Trial Court that he had sufficient means to pay sum of Rs.3 lakhs to the petitioner. He also submits that the Trial Court as well as the Appellate Court have erroneously held that the petitioner had not rebutted the presumption and they have failed to appreciate the documents produced by the petitioner in support of her defence. In support of his case, he has relied upon the judgments of the Hon'ble Supreme Court in -5- CRL.RP No. 699 of 2014 case of JOHN K JOHN V. TOM VARGHESE & ANR - 2007 (12) SCC 714, K. SUBRAMANI V. K. DAMODARA NAIDU- 2015(1) SCC 99, JUGESH SEHGAL V. SHAMSHER SINGH GOGI - 2007(14) SCC 683, BASALINGAPPA V. MUDIBASAPPA - AIR 2019 SC 1983, ING VYSYA BANK LTD. & ANR., V. STATE OF RAJASTHAN & ANR., - CRIMINAL APPEAL NO.165 OF 2010 DATED 12.02.2015, ANSS RAJASHEKAR V. AUGUSTUS JEBA ANANTH - AIR 2019 SC 942, B. SUNITHA V. STATE OF TELANGANA & ANR., - 2018(1) SCC 638, ANIL RISHI V. GURBAKSH SINGH - AIR 2006 SC 1971, S.B. ITTIGI AND ANOTHER V. S.V. SULOCHANA & OTHERS - ILR 2007 KAR 247. Accordingly, he prays to allow the petition.
6. Per contra, learned counsel appearing for respondent submits that the petitioner has not set up any defence before the Trial Court. He submits that the statutory notice issued to the petitioner was received by her and she has not replied to the same. He also submits that the signature found in the cheque and also writings in the cheqe have not disputed by the petitioner and therefore, there is presumption against the petitioner under Section 139 of the N.I. Act which has not been successfully rebutted. No proper defence has been made out by the petitioner. The Courts below have rightly convicted the petitioner. Accordingly, he prays to dismiss the petition.
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7. I have carefully considered the arguments addressed on both the sides and also perused the material available on record.
8. The cheque in question has been produced by the respondent - complainant before the Trial Court and the same is marked as Ex.P1. The writings found in the said cheque and also the signature found in the said cheque is not seriously disputed by the petitioner. The petitioner has also not disputed that the said cheque is drawn from her bank account. Under the circumstance, there is a presumption under Section 139 of the Act which is against the petitioner and in view of the said presumption, the cheque in question is presumed to have been issued by the petitioner to the respondent towards discharge of her legally recoverable debt. The petitioner has failed to discharge the said presumption which arises against her. The petitioner has not set up any probable defence before the Trial Court and she has not offered any satisfactory explanation as to how the cheque in question had reached the custody of the respondent. Though she has stated before this Court that the cheque in question was issued by her to her Brother-in-law Shambaiah, who in turn had given the same to the respondent -7- CRL.RP No. 699 of 2014 who has misused the same, no such defence was taken by the petitioner before the Trial Court. She has not examined the aforesaid Shambaiah before the Trial Court.
9. The legal notice issued on behalf of the respondent was duly served on the petitioner and receipt of the legal notice has been admitted by the petitioner. Admittedly, the petitioner has not replied to the said notice. The petitioner has also not suggested anything about her defence to PW.1 during his cross-examination. The petitioner has also not made any statement in support of her defence during the course of recording of her Section 313 of Cr.P.C., statement. Though the petitioner has examined herself as DW1, even in her examination-in-chief she has not stated anything about her defence. She has not stated in examination-in-chief that the cheque in question was issued by her to Shambaiah, who in turn had given the same to the respondent. For the first time, such a defence is taken by the petitioner before this Court.
10. The respondent - complainant in addition to producing the cheque in question and copy of statutory legal notice issued to the petitioner by her has also produced Ex.P7 which is his passbook relating to his bank account maintained -8- CRL.RP No. 699 of 2014 in State Bank of India. From the perusal of the said document it is seen that during the period from 19.07.2011 to 21.07.2011 an amount of Rs.3,20,000/- an amount of has been drawn by the respondent from his bank account and it is the specific case of the respondent that he has paid a sum of Rs.3 lakhs to the petitioner on 22.07.2011. Therefore, the respondent has successfully proved before the Trial Court that he had financial capacity to pay the amount. This evidence probabalise the case of the respondent that he has paid a sum of Rs.3 lakhs to the petitioner as alleged by him in complaint. The Trial Court as well as the Appellate Court having appreciated the oral and documentary evidence available on record have rightly convicted the petitioner for the offences punishable under Section 138 of N.I. Act.
11. The contention of the learned counsel for the petitioner that the Courts below have failed to appreciate the defence of the petitioner is liable to the rejected for simple reason that the petitioner had not disclosed her defence at any stage before the Trial Court. She has only produced certain documents relating to some other disputes and during the course of her cross-examination she has stated that the said -9- CRL.RP No. 699 of 2014 documents have nothing to do with the case on hand. Under the circumstance, I am of the considered view that the Courts below were fully justified in convicting the petitioner for the offences punishable under Section 138 of N.I. Act. The judgments relied upon by the petitioner would not be applicable to the case as in the present case the petitioner has not set up any probable defence and she has also not disputed the issuance of cheque as well as signature found in the cheque and it is for the first time, the same has sought to be disputed before this Court.
12. It is trite law that the judgments can be relied as precedents only if the same are applicable to the facts and circumstances of the case on hand. Therefore, in my view the judgments on which reliance has been placed by the petitioner would not be applicable to the facts and circumstances of the case.
13. The Courts below have recorded a concurrent finding against the petitioner and unless the petitioner is able to demonstrate before this Court that such finding recorded by the Courts below are either perverse or illegal, the scope for interference in exercise of revisional power by the Court is very
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CRL.RP No. 699 of 2014narrow. I, therefore, do not find any good reason to interfere with the judgment and order of conviction and sentence passed by the Courts below which has been challenged by the petitioner in this revision petition. Accordingly, revision petition is dismissed.
Sd/-
JUDGE NMS