Karnataka High Court
H J Gangadhar vs M N Krishna on 18 January, 2010
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
IN THE HIGH COURT OF KARNATAKA AT BANG ALORE * Dated this the 18" day of January, 2610 Before Criminal Revision Petition G29 / 2007 ns Between: _ Sri H J Gangadhar Senior Clerk 7 Sri Vinayaka Credit Co-op. Socicww # 14, 3" Main Road Palace Guttahalli, Bangalore Petitioner (By Sri S Shivakumar, Adv.) And: MN Krishra S/o Nanjaiah R/o Narmadz Nilaya, 7"-Cross- Subashnagar, Mandya Respondent (By SriMR Vijaykemar, Adv.) _ >. This Revision Petition is filed under $401 of the Cr.PC praying to reverse the judgment-of conviction and sentence passed against the petitioner in CrbA 103/200 on 31.t.2007 and in CC 999/2003 on 25.8.2005 by the Sessions Judge, Mandya and JMPC, Mandya respectively. "This Revision Petition coming on for bearing this day, the Court made + . . * ° the following: Ve" ORDER
This revision is by the accused agaisnt the concurren finding of beth-
the courts below in convicting and sentencing the accused -for the offence"
punishable under S.138 of the Negotiable Instruments Act...
According to the respondent complainant, petitioner is said to have borrowed two lacs during Februar} 1969 and agreed'to pay the amount within three months with 2% interest per aipum and in 'this regard, cheque drawn on Pang Syndicate Bank, Ka ni Branch, Shimoga was issued. The amount was borrowed by the petitioner for the purpoce of business. When the satd cheque was presented to the bank. i wits returned with a shara "account closed'. Thereafter, legal notice was. isstied en "9.1999 demanding the accused to pay the amount. Despite receit 'of the notice, accused did not make pavinent as such, eileging commission of. offence, complaint came to be filed. -- Learned "Magistrate hele a "inguiry and on behalf of the accused. he has examined one of the husik official and himself. His contention is that. the cheque was lost. After ing iry, learned Magistrate formed an opinion that the petitioner is guilty "of the offence under S.138 of the Negotiable Instruments Act as such. he i ind directed to pay fine of Rs.5.000/ and default sentence of 3 months and
- compensation of Rs.1.95.000/-. Agerieved by the said order. petitioner dpe preferred an appeal before the Sessions Judge, Mandya who in turn, after, detail o "
hearing, dismissed the appeal, Hence, tis reviston.
Heard the counsel for the petitioner.
it is the submission of the petitioner s couneel that petitioner is from Shimoga whereas the complainant is from Mandya, There. is no such transaction that has taken place betweets tlio. "as regerds the cheque which was lost, immediately # has been intimated 46 Ihe bank authorities and they in turn, have closed the account alt tre request af the petitioner and also according to him, nothing has. beer indicated a reards the transaction in the mecome tax returns. Learned Magistrate hats not appreciated the fact oF the presentation of the cheque after a lapse of two years, by the complainant to the concerned authorities. IL is also stated. there is no legally enforceable debt and for non- consideration of the vital admissions by both the courts below, the orders passed by the courts below do not sustain and accordingly. has saught for allowing the petition, _ The main grievance of the petitioner is. although complaint has been filed to the concerned authorities regarding the loss of cheques, the same has im not been considered by the Magistrate or the Sessions Judge in appeal and accordingly sought for considering the case of the petitioner. Learned coaunsel has also relied upon the decision in the case of Arisiuta Janardhian Bhat Vs | been issued for the discharge of a legally enforvveainle debt ud in the absence ofa legally enforceable debt. it is not 4 mnitter of preshinption imder S$. 139 of the Negohable Instruments Act. He has also relied pon 'another decision of this Court in the case of A Bhooséureao Vs Purushoshanedas Pantani & Aur -
1998 Cri LJ 906 to the similar effect."
In the light of-the arguments advanced, the points that arise for consideration is whether both. the, courts have erred in canvicting and semencing the accused;. "whether both the courts below erred in coming to the conciusion that-there is a legally enforceable debt thereby forming a presumption-te. hokl the accused guilty of the offence and, what order.
From a-perusal of the order passed by the learned Magistrate, it is seen, "o motice issued by the complainant has reached the accused that is at Ex.P7 and it . 1s-also wiitten as 'not claimed', The accused is said to have issued cheque on 6.8,1999 drawn on Syndicate Bank. Complainant has presented the cheque on jee 22.10.1999, It is the contention of the accused before the trial court that complainant is a stranger to him and also has lost the cheque | loaves while shifting the office from Kumsi to Bangalore and intimated thie bank at Kuinsi . inconsistent stand taken by the accused stating that since tlie accused hikd not operated the account regudarly the bank uulliorities Rave closed lie account and"
also stating that the account is being opersied by one Bheema Reddy and to establish the facet and also of knowledge, fea incl Magistrate was of the view that Bheema Reddy is' not examined by tne aweused, | Noting the vital admission of DW. |! Y acoused let 'hg hats Jost five cheques and in respect of four cheques he has not jodgeu siny complaint carlier to the bank or the police and having noted that Yb is a strange defense taken by the accused. the learned Magistrate has not accepted the version of the accused.
_ Regarding acquaintance of the accused with the complainant is concerned, comptainant has also given the work place of the accused as well as the correct address und thus, the contention of the accused that the complainant oo. isa stranger has not been accepted.
jhe 6 So far as the application given by the petitioner to the bank autnorities to close the bank account is concerned, learned Magistrate has referréd to the cross-examination of DW 2 wherein it is elicited that the bank authorities tiave closure of the account. Thus, noticing the various discrepancies and alse non filing of the complaint in respect of another 'four cheques which have been lost * vans by him. having noticed that it. is a strange delense taken by the uccasedd, referring to the return of the notive unclaimed. learned. Magistrate forming a presumption under §.t39 of the Negetiable. Instruments Act. has come to the conclusion that toured 4 legally enforceaisl debt "the cheque was advanced by the petitioner to the complainant end sto motu the bank has not closed the account for not peri tne. the account, The triabcourt has also noticed the Tact that the accused, hal requested the hank to stop payment, as per the stand of the accused. - Further, noting tial tite accused failed to rebut the presumption and also noting 'that the sionature on the cheque is adrmitted to be that of the accused, Juaking inte 'the inconsistent stand taken by the accused as to the closure. of the account on his instruction and by the bank himself for non-
"<. aperation of the account, the court below has convicted and sentenced the Je ~ aecused. * Simdarly, the lower appellate court has referred to the evidence of PW 1 in the cross-examination ie., during February 1999 the- aeeused had borrowed a sum of Rs.? lacs and had issued a cheque and hie aiso-agieea 10° and that there was failure to return the amount 'The lower apneilat court has, opined that the complainant had the capacity 10 letid ihe, aot a he was. doing business in supplying sparts matteriais-anel alivo incamié from agricultural land. Regarding the closure or bank "account. "it as alsa noticed the inconsistent stand taken by the accused and entertaining a doubt whether the account was closed sno motu or ap the instruction of the accused and in the absence of any proper oxplanation, the lower appellate court has formed an opimion that there wes 2 transaction. It has also noted the defense theory regarding the lost chequies and after a lapse of two years, complaint has been presented' and, concerring. wit the finding of the trial court, the lower
- appellate couitt else held that when the signature on the cheque is admitted and alse case is mode out regarding lending of the amount. the burden shifts on the aevused ro-discharge the presumption and that there ts no such presumption
- being discharged and, meonsistent stand is taken by the accused. Thus, negating the contention of the accused, it has upheld the order of canvietion and sentence passed. oa r Learned counsel representing the accused petitioner has relied.upon the decision noted supra to contend that there is no legally enfiorceable deh As such, he is not hable. What is to be noted ts, the cheque in qatestion, boars the complaint and also instrueted the bank to stop payment, a appears there iS inconsistent stand taken -- at one breath 18 stated shat the pant itkett' closed"
the account for not operating and in another breath is stated he bas instructed the bank to stop payment as he was not Rabie. 0 make payment, That apart. he has not given any complaint te the bank of the police regarding the toss of other four cheques. and also filed al completa on ly in respect of the cheque ia question, Taking these aspects into corsideration, both the courts below have rejectect the: contention of, the petitioner 'in the circumstances, the impugned orders passed by the courts belew does not call for interference.
_ Accordinghs revision is dismissed, Send back the records.
Sa/-
Judge