Karnataka High Court
Gurukrupa Hotel/Lodge, vs Gurappa Neelappa Jamadar, on 15 February, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.100241/2016
BETWEEN:
1. GURUKRUPA HOTEL/LODGE
3RD CROSS, SAPTAPUR,
DHARWAD-580001.
2. HARISH MANOHAR GAITHONDE
AGE: MAJOR, MANAGING PARTNER
HOTEL GURUKRUPA LODGE/HOTEL,
3RD CROSS, SAPTAPUR,
DHARWAD-580001.
...PETITIONERS
(BY SRI. S.S. YADRAMI, ADVOCATE)
AND:
GURAPPA NEELAPPA JAMADAR
AGE: MAJOR, OCC: MANAGING PARTNER
SREESHARANABASAVESHWARA FINANCE CORP.
REPRESENTED BY MANAGING PARTNER,
GANDHI CHOWK, DHARWAD.
...RESPONDENT
(BY SRI. R.H. ANGADI, ADVOCATE)
THIS PETITION IS FILED UNDER SECTION 397 AND 401
OF CR.P.C., PRAYING TO CALL FOR RECORDS AND SET ASIDE
THE JUDGMENT DATED 23.08.2016 IN CRL.A.NO.75/2014
PASSED BY THE IV ADDL. DISTRICT AND SESSION JUDGE AND
THE JUDGMENT DATED 09.10.2014 IN C.C.NO.457/2007
PASSED BY I ADDL. CIVIL JUDGE & JMFC DHARWAD BY
ACQUITTING THE ACCUSED/PETITIONERS HEREIN.
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RESERVED FO R O RDER ON : 31.01.2019.
ORDER PRONOUNCED ON : 14.02.2019.
THIS REVISION PETITION BEING HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The revision petitioner who is accused has filed this revision petition under Section 397 and 401 of Cr.P.C., challenging the judgment dated 23.08.2016 passed in Crl.A.No.75/2014 on the file of IV Addl. District and Session Judge, dismissing the appeal and upholding the judgment dated 09.10.2014 passed in C.C.No.457/2007 on the file of I Addl. Civil Judge and JMFC, Dharwad, convicting the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the case is that the complainant has filed the complaint stating that the accused No.2 had taken the loan of Rs.80,000/- for running the business of accused No.1 and consequently loan 3 documents came to be signed and acknowledgment was also signed on 28.12.2001 and accused agreed to pay within six months with interest at 23% by paying daily Rs.400/- as pigmy and the accused failed to repay the debt. Hence, on 13.01.2004 the accused has issued the cheque for an amount of Rs.1,38,000/- and when cheque was presented, the same was returned with an endorsement "Account Closed" and hence legal notice was issued which was returned as 'Unclaimed' and the accused was secured before the Court below and evidence was recorded. After giving the opportunity to both the parties, the Court below convicted the accused for the offence punishable under Section 138 of N.I. Act. Being aggrieved by the order of conviction and sentence, the accused has preferred criminal appeal No.75/2014 and the First Appellate Court also after hearing both the parties dismissed the appeal. Being aggrieved by the judgment of conviction and also the confirmation of the order by the Appellate Court, the revision 4 petitioner/accused preferred this revision petition before this Court.
3. The main contention of the revision petitioner is that it is brought on record that complainant alleged to collect 23% and in fact calculated the interest as 36% while collecting the cheque for Rs.1,38,000/-. Both the Courts below have held that collection of interest and exorbitant rate of interest is an offence. This being the law involved in the case, both the Courts failed to answer the same causing injustice to the appellant and both the Courts below misdirected itself by ignoring the defense and the Courts below have miserably failed to consider the fact that on the date of alleged issuance of cheque the liability had not crystallized and cheque was issued in earlier transactions and appellant has repaid the entire loan amount in the instant case. Hence, the judgment is liable to be set aside.
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4. Learned counsel for appearing for the revision petitioner in his arguments vehemently contended that PW.1 in his arguments he admits that loan ledger extract is not produced and there are admissions in the cross-examination and it is elicited in the cross- examination that counter foils, cheques are produced and non-production of loan ledger extract itself shows that the revision petitioner is not in arrears of any loan amount and the Court below failed to draw the adverse inference. The other contention that loan amount is Rs.80,000/- and if its is taken the interest at 23%, it comes to Rs.1,16,000/- and out of that an amount of Rs.65,452/- is paid and both the Courts below failed to take the note of this aspect. The contention of petitioner is that the cheque has received as security on the date of advancement of loan and not in respect of the liability of debt. In support of his contention the counsel for the revision petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of, 6 Vijay Vs Laxman and Another reported 2013 DGLS (SC) 102, and contended that the presumption under Section 118 and 139 of the N.I.Act, are rebuttable presumption and if the accused rebut the same effectively, the Court has to take rebuttal is preponderance of probabilities and not proof beyond reasonable doubt. The counsel also in his arguments, he relied upon the judgment of this Court in the case of Branch Manager, PCA & RD Bank Ltd., Belthangady Vs Suresh Das, reported in 2018(4) KCCR 3674, and contend that this Hon'ble Court has held that cheque not issued by accused towards legally recoverable debt but the same was issued as security for loan borrowed from complainant/bank and complainant not producing amount extract relating to loan account of accused and no interference in judgment of acquittal. The counsel also relied upon the judgment of Bombay High Court in the case of Ramkrishna Urban Co-operative Vs Shri Rajendra Bhagchand Warm, and contend that 7 bouncing of cheque which was given as security for loan amount were held not to attract provisions of Section 138 N.I.Act. The other contention that the amount was is in dispute under the cheuqe shows that interest is calculated at 36% and not as 23%. Hence, the Court below failed to consider the defense of the revision petitioner and prayed this Court to set aside the judgment of conviction passed against the revision petitioner.
5. Learned counsel appearing for the respondent in his arguments he contends that loan was availed in the year 2001 for a sum of Rs.60,000/- and the said loan was cleared and subsequently the accused has availed the loan for an amount of Rs.80,000/- and not paid the single paisa towards the said loan amount and when the accused did not repaid the amount, the complainant insisted to pay the amount. Hence, the cheque was given in the year 2004 and the same was returned with 8 an endorsement the account is closed and thereafter notice was issued and the same was served and not replied. The main contention of the accused is that the cheque was issued as security for the earlier loan and the same was not returned. The other contention that interest is exorbitant and he paid the amount through pigmy and DW.1 in his cross-examination he categorically admitted the first loan transaction and the same was repaid and he claims that payment was made through pigmy book which is not produced. The other contention that Exs.P13 and P.13(a) is account extract and ledger extract and revision petitioner cannot contend that ledger extract is not produced. The accused did not dispute the issuance of cheque and hand writing and there is a legal presumption under Section 118 and 139 of N.I.Act, once the cheque has been issued and not disputed, the presumption is in favour of the complainant. The counsel in his arguments, he vehemently contend the scope of revision 9 is very limited and only the error is an apparent on record, if the mistake by both the Courts then the Court can invoke the revisional jurisdiction and there is no any error apparent on record. Hence, the revision cannot be entertained by this Court.
6. In support of the said contention he relied upon the judgment of the Hon'ble Supreme Court in the case of Kishan Rao Vs Shankargouda reported in 2018 SAR (Criminal) 880. The learned counsel contends that the scope and ambit of Section 397 and 401 is limited only to the extent of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, said revisional power cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction - ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the 10 same, unless any glaring feature is brought to its notice which would otherwise tantamount to gross miscarriage of justice. The counsel relied upon the above judgment and brought to the notice of this Court that there is no any error in appreciating the evidence of both the lower Court as well as First Appellate Court and this Court cannot re-appreciate the evidence and only the scope is if anything is found that glaring feature is brought to its notice then this Court can entertain the revision or otherwise no grounds to entertain revision.
7. After having heard the arguments of both the revision petitioners and also the learned counsel appearing for respondent, the point that arises for my consideration is whether the Courts below have committed an error in appreciating the material on record and whether this Court can exercise the revisional jurisdiction and found any error apparent on 11 record in considering the case of the revision petitioners.
8. I have given anxious consideration with regard to the evidence of complainant who has been examined as PW.1 and also the revision petitioner has examined himself as DW.1 and also examined two witnesses as DW.2 and DW.3; and relied upon certain documents as Ex.D series, so also the complainant has got marked the documents Ex.P1 to Ex.P13(a).
9. Having considered the grounds urged in the revision petition and also the principles laid down in the judgments referred supra, the precedent is very clear that the presumption is rebuttable presumption as held by the Hon'ble Apex Court in the judgment of Vijay Vs Laxman and Another reported 2013 DGLS (SC) 102, and other judgments are with regard to invoking of Section 138 with regard to issuance of cheque attracting Section 138 of offence and both the judgments of 12 Karnataka High Court and Hon'ble Apex Court held that if the cheque is issued in respect of security Section 138 cannot be invoked. No dispute with regard to the principles laid down in the judgment and the respondent also brought to my notice with regard to the scope of revision which is limited. In keeping the principles laid down in the judgment referred supra, this Court has to appreciate the facts of the case on hand, the very case of the complainant before the trial Court that accused borrowed an amount of Rs.80,000/- and he did not pay the amount and when the demand was made, he issued the cheque bearing No.15029 dated 13.01.2004 drawn on Sri Gurusiddeshwar Co- operative Bank Ltd., Hubballi and the same was presented and an endorsement was issued as "Account Closed". The fact of issuance of cheque is not disputed and the accused admitted the issuance of cheque, signature and only the contention raised is that the said cheque was issued when he borrowed the first loan in 13 the year 2001 to the extent of Rs.60,000/- and he has not issued any cheque towards the debt or liability of second loan. The other contention that the interest was charged to the extent of 36% and not 23%. In the cross-examination of DW.1, accused, he categorically admitted that he borrowed the loan of Rs.80,000/- but he claims that on different dates taken the same on 29.12.2001 an amount of Rs.55,000/- and Rs.25,000/- on 05.01.2002. Further he claims that complainant has received an amount of Rs.12,800/- on 05.01.2002 as advance interest for six months and he has not agreed to repay the loan with interest at 23% within six months and he has agreed to pay the said loan amount by paying Rs.400/- per day by pigmy account and accordingly he repaid the loan amount by pigmy account from 27.12.2001 to 09.09.2003 of Rs.65,452/- and earlier he has taken the loan of Rs.60,000/- from the complainant in the year 2001. He has repaid the entire loan amount by pigmy account but he claims that 14 he has given three blank cheques in the month of July 2001 and out of the three cheques, the cheque bearing No.15029 was encashed by the complainant on 13.07.2001 for Rs.9,600/- as advance interest for the first loan for Rs.60,000/- at the time of loan and he has not issued the cheque bearing No.15029 on 13.01.2004 but the same was issued on 07.07.2001 as security for the first loan of Rs.60,000/- which one is already closed.
10. On perusal of the cheque which is marked as Ex.P3 discloses that the cheque is dated 13.01.2004 for an amount of Rs.1,38,000/- which is the subject matter of the cheque and the hand writing and even the amount mentioned in the cheque is same hand writing. I have already pointed out that issuance of cheque is not disputed and in the cross-examination, he categorically admits that the cheque involved in this case is in the second book which is marked as Ex.D4. 15 On perusal of Ex.D4, cheque book was issued on 05.07.2001 and in the cross examination DW.1 categorically admits the very loan transaction of Rs.60,000/- dated 07.07.2001 and also admits the second loan transaction and he has not given any notice to the complainant to return the said cheque and also not taken any action against the complainant and in the chief examination he categorically admitted that he has paid the amount of Rs.65,400/- by pigmy but he claims that the amount was paid towards the second loan account and he was only arrears of Rs.14,548/- was issued with interest. It is the case of the complainant that he has not paid the single paisa towards the second loan transaction and in the cross examination of PW.1 has categorically denied that the very said cheque was given as security as contended by the accused and in the cross-examination of DW.1 specific suggestion was made that he has issued the said cheque in respect of second loan transaction on 13.01.2004 and the same 16 was denied. Further he admits that the bank has closed the account on his request on 31.03.2003 but he did not dispute the signature available on Ex.P3 in his signature, only his contention that the said cheque was issued by him as a security to the first loan and in order to substantiate the same nothing is produced before the Court that the said cheque was issued as security. No doubt, the judgments applicable in the case on hand which are referred supra by the revision petitioner that if the cheque is given as security and I do not find any such material before the Court that cheques are issued as security and the cheque is dated 13.01.2004 and this is not the case of the revision petitioner that the same is not in his hand writing and he categorically admitted the cheque and when he has admitted the cheque, no doubt it is rebuttable presumption under Section 139 and the accused did not repaid the same by leading any cogent evidence that the amount is paid and cheque was issued only towards the security and not towards 17 the loan and when the same has not been rebutted, I do not find any error committed by both the Courts below in appreciating the evidence and the judgment relied upon by the respondent in the case of Kishan Rao Vs Shankargouda reported in 2018 SAR (Criminal) 880, apply applicable to the case on hand and scope of revision Court is very limited and the revisional Court cannot re-appreciate the evidence and come to its own conclusion only if it is any glaring feature is brought to its notice and mistake is apparent on record, the revisional Court can interfere with the order of the Court below. The main contention of the revision petitioner that the amount calculated is at 36% and not at 23% and even he did not agree for 23% also cannot be accepted in this revision and when he categorically admits the signatures available on the cheque and when he did not repaid the same by adducing any cogent evidence before the Court, I am of the opinion that this Court cannot interfere with regard to the fact finding 18 already been considered by the lower Court as well as First Appellate Court and when there is no glaring error on the part of both the lower Courts, I do not find any merit in the contention of the revision petitioner to interfere with the order of the Courts below. Hence, the revision petition suffers from any merit and scope is also limited and this Court cannot re-appreciate the evidence and the revision petitioner failed to appreciate the fact that the cheque is issued only as security. I have already pointed out that the cheque is dated 15.01.2004 and the accused in his own evidence admitted that he got closed the cheque on 31.03.2003 itself and he has issued the cheque subsequently, after the closure of the account and instead of returning the cheque at the time of closing the account, he has issued the cheque towards the debt a liability and no material is placed before the Court that he has repaid the amount except the pigmy payment of Rs.65,242/- and the same is towards the earlier loan for Rs.60,000/- and 19 it is the case of the complainant that no single paisa is paid towards the second loan amount of Rs.80,000/- and when such being the case, I do not find any merit to interfere with the order of the Courts below.
11. In view of the discussions made above, I pass the following;
ORDER The revision petition is dismissed.
Sd/-] JUDGE msr