Karnataka High Court
S K Prabhu vs K Giridhar Rao on 16 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1619, 2019 (4) AKR 857
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL REVISION PETITION NO.150/2016
Between:
S.K. Prabhu
S/o late K.S.Prabhu
Aged 67 years,
No.350/1-6-18
Beladingalu Pipe Line road,
Shakambari Nagar, J.P.Nagar,
I Phase, Bengaluru - 560 078.
Now at: Flat No.306, "Sreenidhi Elite"
2nd Cross, Kammanahalli Link Road,
Gottigere, Bannerghatta Main road,
Bengaluru - 560083. ...Petitioner
(By Smt. Neeraja Karanth, Advocate for
Sri K.Shrihari, Advocate)
And:
K. Giridhar Rao
S/o late Dr. Keshav Rao
Aged 80 years,
No. D-105, Casaansal,
No.18, N.S.Palya,
Bannerghatta Road,
Bengaluru - 560 076. ... Respondent
(By Sri S. Ganesh Shenoy, Advocate)
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This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C., praying to set aside the judgment
dated 01.12.2015 passed by the LXVI Addl. City Civil and
Sessions Judge, Bengaluru City in Crl.A.No.1415/2014 and
judgment dated 12.12.2014 in C.C.No.2620/2010 on the file
of the XXIII Addl.C.M.M., Bengaluru.
This Criminal Revision Petition coming on for Orders
this day, the Court made the following:
ORDER
The present revision petition has been preferred by the accused-petitioner challenging the judgment passed by the LXVI Additional City Civil & Sessions Court, Bengaluru in Criminal Appeal No.1415/2014 dated 01.12.2015, where under the judgment and order of conviction passed by XXIII ACMM, Bengaluru in C.C.No.2620/2010 dated 12.12.2014 was confirmed by dismissing the appeal.
2. I have heard Smt. Neeraja Karanth, learned counsel for the petitioner and Sri S. Ganesh Shenoy, learned counsel for the respondent.
3. Before considering the submissions of learned counsel appearing for the parties, the factual matrix as -3- per the case of the complainant is that the accused and complainant are distant relatives and accused-petitioner was running a business. On 27.08.2007, at the request of accused-petitioner, the complainant paid a sum of Rs.2,00,000/- through cheque bearing No.941773 drawn on Canara Bank for his urgent business requirements and the same was enchased on 28.08.2007. It is the further case of the complainant that the accused-petitioner agreed to repay the said amount within two months along with interest @ 18% p.a. Accused-petitioner failed to repay the amount as agreed and he paid Rs.3,400/- on 17.10.2007, Rs.12,450/- on 06.02.2008 and Rs.20,000/- on 23.02.2008 towards interest. The complainant requested the accused-petitioner to repay the loan amount. Instead of making the payment, he issued four cheques bearing Nos.968827, 968828, 968829 and 968830 dated 28.12.2008 drawn on Syndicate Bank. He presented the said cheques on 09.04.2009 through -4- Canara Bank and the same were dishonored with an endorsement "Funds Insufficient" on 30.04.2009. On 26.05.2009, the complainant issued a legal notice demanding payment of the said amount and the said notice was served on the accused-petitioner on 13.05.2009. The accused-petitioner has not paid any amount and as such a complaint was filed under Section 138 of Negotiable Instrument Act (hereinafter called as 'Act' for short). On the basis of the private complaint, the Court took the cognizance and thereafter secured the presence of the accused-petitioner and plea of the accused-petitioner was recorded and accused- petitioner pleaded not guilty and he claims to be tried and as such, the case was posted for trial.
4. In order to prove the case of the complainant, he himself got examined as P.W.1 and got marked 19 documents. Thereafter, the accused was examined under Section 313 of Cr.P.C. and got examined himself -5- as D.W.1 and got marked 15 documents. After hearing the learned counsel appearing for the parties, the trial Court convicted the accused for the offence punishable under Section 138 of the Act and imposed a fine of Rs.3,10,000/-, in default to under go simple imprisonment for one year. Challenging the same, accused-petitioner preferred Crl.A.No.1415/2014, the said appeal also came to be dismissed on 01.12.2015. Challenging the illegality and correctness of the said judgment, the accused-petitioner is before this Court.
5. It is the submission of the learned counsel for the accused-petitioner that the judgment of the First Appellate Court as well as the trial Court are contrary to law and evidence on record and the trial Court erred in not appreciating the documents produced. It is her further submission that the accused-petitioner and the complainant are close relatives and the complainant had been to England to meet his daughter, at that time -6- the accused-petitioner used to deal with the properties and so many litigations were pending, he was intending to sell the properties and as a brokerage an amount of Rs.2,00,000/- was given in advance and promised to pay Rs.14,80,000/-, after the settlement of the said dispute. In order to have security for having paid advance amount of Rs.2,00,000/- out of 10% commission those four cheques were given, but subsequently the respondent-complainant has put the date and the said cheques have been misused by the respondent-complainant. It is her further submission that there was a separate transaction between the accused-petitioner and the respondent-complainant. The said cheques have been issued in the year 2007 but the dates mentioned on the four cheques is of the year 2008. This clearly goes to show that cheques have been issued in the year 2007 and the said transaction has n ot taken place in the year 2008. It is her further submission that in para 3 of Ex.P.15 the legal notice, it -7- has been clearly mentioned that the said cheques have been issued as a brokerage. In the said notice he has specifically mentioned that the accused-petitioner is entitled for 10% of the market value of the property which is worth Rs.1,68,00,000/- and after executing the power of attorney he had given Rs.2,00,000/- to the accused-petitioner with an assurance that the said amount would be adjusted towards the commission payable by the complainant to the accused-petitioner. But subsequently the said cheuqes have been misused by the complainant. It is her further submission that the trial Court has swayed away by the dates mentioned on the cheques. Other material on record also clearly goes to show that the said notice has been issued only to overcome from the liability. It is her further submission that the evidence of P.W.1 clearly goes to show that the presumption which has been drawn as contemplated under Section 139 of the Act has also been rebutted. Without considering the said fact, the -8- Court below has wrongly convicted the accused- petitioner. On these grounds, she prayed to allow the petition and to set aside the impugned judgment and acquit the accused.
6. Per contra, the learned counsel appearing on behalf of the respondent-complainant vehemently argued and submitted that the evidence and complaint of P.W.1 clearly goes to show that the said cheques have been issued by the accused to repay the amount borrowed. It is his further submission that during the course of arguments the accused-petitioner has admitted payment of amount by the complainant, but for what purpose the said amount has been paid has not been properly explained. It is his further submission that the complainant has made out a clear case that he has taken Rs.2,00,000/- loan for the purpose of business transactions and as per the agreement 18% interest has to be paid and in order to -9- pay the interest certain amount has been paid and the payment of amount has been admitted by the accused- petitioner. He further submitted that the accused- petitioner was having an Overdraft account and after payment of the amount by the respondent-complainant, the accused has paid the said amount to other debtors, that itself clearly goes to show that the said amount has not been paid as a commission for dealing with the properties. It is his further submission that though the respondent-complainant had been to foreign country but after coming back, he himself looked after the said transactions and during the course of cross- examination D.W.1 he showed his ignorance about the said transaction, that itself clearly goes to show that it is not the amount towards commission to be payable to the accused-petitioner. It is his further submission that the scope of this Court in Revision Petition is very limited in the absence of perversity or lack of jurisdiction this Court cannot analyze or reinterpret the
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evidence on record. Trial Court as well as the First Appellate Court after considering the material and evidence on record have rightly recorded the findings and there is no perversity or any illegality in the findings given by the trial Court for substantiating his contention. He has relied on the decision in the case of Bir Singh v/s Mukesh Kumar reported in (2019) 4 SCC page 197. It is his further submission that the accused-petitioner has not made out any good grounds to interfere with the order of the trial Court, the same may be dismissed by confirming the order of the trial Court.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
8. In order to prove the case of the complainant, he got examined himself as P.W.1 and got marked 19 documents and the accused-petitioner got examined
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himself as D.W.1 and got marked 14 documents. It is the specific case of the respondent-complainant that he had advanced an amount of Rs.2,00,000/- as a loan for the urgent business requirements of the accused- petitioner and the said amount has been paid through cheque bearing No.941773 and the same has been encashed on 28.08.2007. It is not in dispute that the accused-petitioner received the said amount. It is the specific defense of the accused-petitioner that the said amount of Rs.2,00,000/- has been paid as an advance amount of commission which was liable to be paid after the business transaction is completed in respect of the property held by the respondent-complainant and subsequently the said property has been settled and he has sold the said property for a sum of Rs.1,68,00,000/-. It is her further submission that Ex.P15 has been issued contending that the said fact to rebut the presumption. It is her further contention that the said cheques have been issued in the year 2007 and
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subsequently it has been presented in the year 2008. On close reading of the records of Exs.P1 to 4, the cheques were issued by the accused-petitioner, the accused-petitioner has not disputed the signatures found on Exs.P1 to 4. It is the specific contention of the accused-petitioner that the said cheques have been issued in the year 2007 but subsequently they have been misused by mentioning the date as 28.12.2008 and the said cheques are beyond the point of limitation. In order to substantiate her contention she has produced the additional documents before this Court i.e., the cheque book counter leaves issued in respect of his account. As could be seen from the cheque book counter leaves the serial Nos.2, 3, 4 and 5 cheques have been issued for a sum of Rs.50,0000 each in favour of respondent-complainant, subsequently the said records also shows that in the said cheque book subsequent cheques have been issued from 29.08.2007 to 05.09.2007 and on the next page no dates have been
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mentioned. If the cheques have been issued by signing, either blank or having written thereon an incomplete document he thereby gives authority to the holder to make it complete, under such circumstances, the person so signed and issued the cheque to authorized holder is liable to pay settlement of N.I. Act. Section 20 of the Act reads thus:
20. Inchoate stamped instruments.--Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 1[India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount;
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Provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
9. On going through the said section the person who signs shall be liable such negotiable instrument, though it has been issued either wholly blank or having written thereon an incomplete documents, he authorize to complete the negotiable instrument and present before the Bank. In that light even though the said cheques have been issued in the year 2007 the date mentioned on the cheques is of the year 2008, only on that basis, it cannot be held that the said cheques have been issued in the year 2007 as a security and the same has been misused. It is the specific case made out by the accused-petitioner that he was having a transaction and agreed to get commission of 10% as advance and Rs.2,00,000/- has been paid towards sale transaction.
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To support his contention he has relied upon the notice issued as per Ex.P15. On close reading of Ex.P15 it has been mentioned that his client is entitled for a commission of 10% of market value of the property which stands @ Rs.1,68,00,000/- and it has also been mentioned that after executing the power of attorney, he has been given Rs.2,00,000/- with an assurance that the said amount would be adjusted towards the commission payable by the respondent-complainant. But on close reading of evidence of D.W.1 and contents of the complainant and evidence of P.W.1 if indicates that an amount of Rs.3,400/- has been paid on 17.10.2007, Rs.12,450/- has been paid on 06.02.2008 and Rs.20,000/- has been paid on 23.02.2008. It is the specific contention of the complainant that the said amount has been paid towards the interest. Though the payment of the said amount has been admitted during the course of cross examination of D.W.1, but for what purpose the said amount has been paid has not been
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properly explained by the accused-petitioner. Though it is contended during the course of arguments that some other transactions were there between the accused and complainant and a power of attorney has been executed in favour of him, but if a power of attorney has been executed, then under such circumstances and what was the necessity of paying that amount has not been explained by the accused-petitioner. In the absence of any such explanation, it cannot be held that the presumption drawn on the preponderance of probabilities has been rebutted. I am conscious of the fact that the accused-petitioner can rebut the said presumption on preponderance of probabilities and no strict proof is required as contemplated under the law.
10. On going through the evidence and documents which have been produced, still the contention taken up by the accused-petitioner has not been rebutted on the said presumption on preponderances of probabilities.
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11. Be that as it may, as could be seen from the notice issued as per Ex.P15, a specific case has been made out by the accused that he is entitled for a commission of 10% and after executing a power of attorney accused-petitioner has given Rs.2,00,000/- with an assurance that the said amount to be adjusted towards the commission payable to the accused after solving the litigation. Subsequently the said dispute has been settled for a sum of Rs.21,00,000/- and the complainant has paid Rs.21,00,000/- to Smt. Asha Raju. If the said dispute has been settled for Rs.21,00,000/- then under such circumstances the question of adjustment and issuance of cheques as a security in this behalf does not arise. Though the said reply has been given in this behalf is not substantiated. As rightly pointed by the learned counsel for the respondent-complainant that the scope of this Court is very limited as observed by the Hon'ble Apex Court in
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Bir Singh's case (supra) at para 13 to 17. It has been observed as under:
13. The short question before us is whether the High Court was right in reversing the concurrent factual findings of the trial Court and of the appellate Court in exercise of its discretionary jurisdiction, interfere with an order of conviction in the absence of any jurisdictional error or error of law and (ii) whether the payee of a cheque is disentitled to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, of a cheque duly drawn, having been issued in discharge of a debt or other liability, only because he is in a fiduciary relationship with the person who has drawn the cheque.
14. The trial Court, on analysis of the evidence adduced by the respective parties arrived at the factual finding that the respondent-accused had duly issued the cheque in question for Rs 15 lakhs in favour of the appellant-complainant, in discharge of a debt or liability, the cheque was presented to the bank for payment within the period of
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its validity, but the cheque had been returned unpaid for want of sufficient funds in the account of the respondent-accused in the bank on which the cheque was drawn.
Statutory notice of dishonour was duly issued to which there was no response from the respondent-accused.
15. The appellate Court affirmed the aforesaid factual findings. The trial Court and the appellate Court arrived at the specific concurrent factual finding that the cheque had admittedly been signed by the respondent- accused. The trial Court and the appellate Court rejected the plea of the respondent- accused that the appellant-complainant had misused a blank signed cheque made over by the respondent-accused to the appellant- complainant for deposit of income tax, in view of the admission of the respondent-accused that taxes were paid in cash for which the appellant-complainant used to take payment from the respondent in cash.
16. It is well settled that in exercise of revisional jurisdiction under Section 482 of
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the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re- interpret the evidence on record.
17. As held by this court in Southern Sales & Services v. Sauermilch Design and Handels GmbH3, it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is therefore, in the negative.
12. The Hon'ble Apex Court has observed that in the absence of perversity or irregularity, the Court exercising the additional powers are limited and higher Court should not interfere if a wrong orders are not passed.
13. Keeping in view, the law laid down in the above decision, though I have discussed the factual matrix in detail that only for the purpose of clarity and other
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purpose that re-appreciation has been done. Even after re-appreciation I find no irregularity or absence of jurisdiction to interfere with the orders of trial Court and the orders of trial Court as well as the lower Appellate Court deserve to be confirmed.
In the light of the discussion held by me above, the accused-petitioner has not made out any good grounds to interfere with the judgment of trial Court. Even the additional documents which have been produced do not required to be reconsidered for the discussion.
Accordingly, the criminal revision petition is dismissed.
I.A.Nos.1/2019 and 2/2019 are disposed off.
Sd/-
JUDGE GJM