Karnataka High Court
Mr Arjun vs Mr E Shekar on 3 March, 2017
Equivalent citations: 2017 ACD 807 (KAR), 2017 (2) AKR 527
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL REVISION PETITION NO.431/2007
BETWEEN:
Mr. Arjun
S/o Late Natesana
Aged Major
Nethravathi Stores
No.2, 4th Cross
Old Pension Mohalla
Bangalore-560 018. .. PETITIONER
(By Sri Shashi Kiran V, Amicus Curiae
Sri Tanveer Pasha A S, Adv. - absent)
AND:
Mr. E Shekar
S/o Late Elumalai
Aged Major
No.487, 7th Cross
Bakshi Garden
Bangalore. .. RESPONDENT
(By Sri C R Raghavendra Reddy, Adv. - absent)
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This Criminal Revision Petition is filed under
Section 397 read with Section 401 Cr.P.C praying to set
aside the order dated 10.02.2007 passed by the XXXVI
Addl. City Civil and Sessions Judge, Bangalore in
Crl.A.No.15003/2006 confirming the order of conviction
and sentence dated 20.09.2005 passed by the XIV Addl.
C.M.M., Bangalore in C.C.No.26388/2004.
This Criminal Revision Petition coming on for
Hearing this day, the Court made the following:
ORDER
Heard the learned Amicus Curiae Sri Shashi Kiran V, advocate, appearing on behalf of the revision petitioner-accused.
2. The respondent and the learned Counsel for the respondent, both absent. No representation.
3. This revision petition is filed by the accused challenging the legality and correctness of the judgment and order of conviction dated 20.9.2005 passed by the 3 XIV ACMM Court at Bengaluru in C.C. No.26388/2004 and also the judgment and order dated 10.2.2007 passed by the 36th Additional City Civil Judge and Sessions Judge (CCH-37), Bengaluru in Criminal Appeal No.15003/2006.
4. Brief facts are that the complainant and the accused are the close friends for the past several years. The accused had approached the complainant for financial assistance by way of cash of Rs.2,00,000/- for construction of his residential building. In the month of January 2002, the accused had approached and had taken the sum of Rs.1,00,000/- and in the month of February 2002, he had taken Rs.50,000/- each on two occasions for fulfilling his business necessities and promised to repay the said amount within one year. The complainant paid the cash of Rs.2,00,000/- to the accused. Thereafter, the complainant approached the 4 accused for repayment of the said loan amount in the month of May, 2003. The accused had issued an account payee post-dated cheque dated 06.06.2003 for Rs.2,00,000/- drawn on State Bank of India, New Tharagupet Branch, Bangalore. The complainant presented the said cheque for encashment through his banker - Federal Bank, Residency Road Branch, Bangalore. The said cheque was dishonoured and returned with an endorsement insufficient funds vide bank memo dated 07.06.2003. Thereafter, the complainant got issued the legal notice to the accused on 22.06.2003 through RPAD and UCP, to his residential as well as shop address. The legal notice sent to the residential address of the accused was returned with a shara as not claimed. The legal notice sent to the shop address of the accused is duly served. The legal notice sent through UCP is duly served on his residential address as well as shop address. After 5 receipt of the legal notice, the accused did not make payment to the complainant. Hence, the complainant presented a complaint before the trial Court.
5. On the side of the complainant, P.W.1 was examined and the documents Exs.P.1 to P.8 got marked. On the side of the defence, D.W.1 was examined and no documents were got marked.
6. After considering the documents, both oral and documentary, the trial Court held that the revision petitioner accused is guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to pay fine of Rs.2,35,000/- and in default to undergo S.I. for one year. Being aggrieved by the same, when he presented the appeal, the first appellate Court, after re-appreciating the matter, came to the conclusion in dismissing the appeal and 6 confirming judgment and order passed by the trial Court.
7. The learned Amicus Curiae during the course of the arguments made submission that in reality, the accused borrowed only Rs.20,000/- from the complainant and he never borrowed the amount of Rs.1.00 lakh at once and the amount of Rs.50,000/- each on two occasions as alleged by the complainant. He also made submission that as security for the loan amount of Rs.20,000/-, the revision petitioner-accused issued signed blank cheque. He submitted that there is alteration in the cheque. If really the revision petitioner accused said to have taken the false defence, he would have denied obtaining hand loan of Rs.20,000/- also. Hence submitted that this itself goes to show the real transaction is for the amount of Rs.20,000/- and not for Rs.2,00,000/- as contended by 7 the complainant. Hence, he submitted that both the Courts have not properly read the evidence. They came to the wrong conclusion in holding the accused guilty for the offence punishable under Section 138 of the Negotiable Instruments Act. He submitted that the judgment and orders of the Courts below are not in accordance with the materials placed on record and the revision petition is liable to be allowed and the judgment and orders of the Courts below be set aside.
8. I have perused the grounds urged in the revision petition, the judgment and orders of the Courts below and the submissions made by the learned Amicus Curiae.
9. Looking to the judgment of the trial Court, it has discussed the oral as well as documentary evidence placed on record. It is observed by the trial Court in its 8 judgment, at paragraph-4, that in order to disprove the case of the complainant, the accused filed his affidavit by way of examination in chief. In the affidavit, he states that he knows the complainant for the last 10 to 15 years, and he was residing adjacent to his business concern as he was doing the kerosene business for the last 15-20 years. The trial Court has also observed in the said paragraph about the defence of the accused that during the year 2001, he borrowed a sum of Rs.20,000/- from the complainant by way of hand loan, and at that time, the accused pledged his kerosene licence and also issued a blank signed cheque as a security to the complainant. It is also the defence of the accused that he paid the entire loan amount of Rs.20,000/- by the end of 2002 and there is no liability payable to the complainant. The trial Court has also referred to the contention of the accused that he never 9 issued the cheque of Rs.2.00 lakh for discharge of the debt to the complainant. Therefore, on the basis of the said defence, the trial Court discussed that the accused has admitted his signature on the cheque issued in favour of the complainant. Though it may be his contention that it was a blank signed cheque, the burden is on the part of the accused person to rebut the presumption raised in favour of the complainant as per the provision under Sections 118 and 139 of the Evidence Act. Further, it has been observed by the trial Court on page No.6 of its judgment that the accused has to rebut the presumption by leading cogent evidence. Mere plausible explanation is not sufficient to disprove the case of the complainant. The trial Court has also made reference to another contention of the accused that complainant himself filled up the entire body of the cheque and he admits the signature. 10 Therefore, by making reference to the pleadings, the oral evidence of the complainant as well as to the defence of the accused, the trial Court held that the accused has failed to rebut the presumption and the complainant has proved his case.
10. The other important aspect of the matter observed by the trial Court is that though it is the contention of the revision petitioner-accused that he has sent reply to the legal notice, but, he has not produced any documents in proof of the same before the Court. Hence, perusing the materials, ultimately, the trial Court came to the conclusion that the accused is guilty of the offence punishable under Section 138 of the Negotiable Instruments Act.
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11. I have also perused the judgment of the first appellate Court. The first appellate Court has also made reference to the oral evidence of the parties and also the documents produced in the case. At paragraph-9 of its judgment, the first appellate Court has made reference to the defence raised by the accused. Looking to the judgment and order of the first appellate Court also, it clearly goes to show that it has re-appreciated the entire matter and accordingly, held that there is no illegality committed by the trial Court in the course of such conclusion.
12. Looking to all these materials placed on record, I am of the opinion that there is no illegality in the judgment and orders of the Courts below. No grounds are made out to interfere with the said judgment and orders.
Accordingly, the revision petition is dismissed. 12 In view of the valuable assistance rendered by Sri Shashi Kiran V, Advocate, as Amicus Curiae, Registry is hereby directed to pay the sum of Rs.4,000/- to the said Advocate as honorarium.
Sd/-
JUDGE Cs/-
Ct-Sg/-