Karnataka High Court
M Y Khan vs A C Ragavendra on 7 August, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:27819
CRL.RP No. 1341 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 1341 OF 2019
BETWEEN:
M.Y. KHAN
S/O LATE YUSUF KHAN,
AGED ABOUT 64 YEARS,
PROPRIETOR, SAPNA FOOT WEAR,
GOODSHED ROAD, ARSIKERE TOWN,
HASSAN DISTRICT-573 103.
...PETITIONER
(BY SRI. RAVINDRA .B DESHPANDE, ADVOCATE)
AND:
A.C. RAGAVENDRA
S/O K. S. SHANDARAMURTHY,
AGED ABOUT 44 YEARS,
OCC BUSINESS,
R/O. 5460, K.T. STREET,
ARASIKERE TOWN,
Digitally signed HASSAN DISTRICT-573 103.
by ...RESPONDENT
RENUKAMBA
KG (BY SRI. VIJAYA KRISHNA BHAT .M, ADVOCATE)
Location: High THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.PC
Court of
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
Karnataka
18.10.2019 PASSED BY THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, HASSAN IN CRL.A.NO.109/2019 AND THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 02.04.2019 PASSED BY THE SENIOR CIVIL JUDGE AND
JMFC, ARASIKERE IN C.C.NO.333/2017 (CONVICTED FOR THE
OFFENCE P/U/S 138 OF THE N.I ACT) AND ACQUIT THE
PETITIONER OF CHARGES LEVELED AGAINST HIM.
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CRL.RP No. 1341 of 2019
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the accused under Section 397 r/w. 401 of Cr.P.C. challenging judgment of conviction and order of sentence dated 02.04.2019 passed by the learned Civil Judge and JMFC, Arsikere, in CC No.333/2017 and confirmed by the III Additional Sessions Judge, Hassan, in Criminal Appeal No.109/2019 vide judgment dated 18.10.2019.
2. For the sake of convenience, the parties herein are referred as per the original ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case are that, the complainant and accused are well-conversant with each other and accused was running shop by name Sapna Foot Wear. It is asserted that the accused approached the complainant on 15.05.2016 requesting for hand loan of Rs.3,50,000/- for the business purpose -3- NC: 2023:KHC:27819 CRL.RP No. 1341 of 2019 agreeing to repay the same within one year. But, after receiving the amount, he did not repay the said amount. When the complainant demanded for repayment, the accused issued a cheque and when the said cheque was presented for encashment, it was dishonoured for 'Insufficient Funds'. Hence, the complainant has lodged a complaint. On the basis of the complaint, the learned Magistrate has taken cognizance and issued process against the accused. The accused denied the accusation.
4. Before the trial Court, the complainant-A.C. Raghavedra was got examined himself as PW.1 and placed reliance on Six documents marked at Exs.P1 to P6. After conclusion of the evidence of prosecution, the statement of accused under Section 313 of Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against him in the case of prosecution, but he denied the case of the complainant. The accused-M.Y. Khan himself was got examined as DW.1 and in support of -4- NC: 2023:KHC:27819 CRL.RP No. 1341 of 2019 his case, he got examined one witness as DW.2 and the Cheque-Ex.D1 was got marked.
5. After hearing arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused for the offence under Section 138 of the N.I. Act and sentenced him to pay fine of Rs.4,50,000/- with a default sentence of S.I. for Four months. Being aggrieved by this judgment of conviction, the accused has approached the III Additional Sessions Judge, Hassan, in Criminal Appeal No.109/2019. The learned Sessions Judge after re-appreciating the oral and documentary evidence, dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the trial Court. Being aggrieved by these concurrent findings, the accused is before this Court by way of this revision.
6. Heard the arguments advanced by the learned counsel for revision petitioner/accused and the learned -5- NC: 2023:KHC:27819 CRL.RP No. 1341 of 2019 counsel for the respondent/complainant. Perused the records.
7. The learned counsel for the revision petitioner would contend that there was no transaction between the petitioner and the complainant. But, there was some transaction between the wife of the complainant and the revision petitioner/accused and in respect of the same transaction, the disputed cheque was given as security for the loan amount. It is further asserted that the accused has repaid the entire amount. But, the cheque was not returned and that has been misused by the complainant. In this regard, he placed reliance on evidence of DW.1 and Ex.D1. He would further assert that both the Courts below have failed to appreciate the oral and documentary evidence in proper perspective and the entire approach of the Courts below is perverse and arbitrary, which has resulted in miscarriage of justice. Hence, he would seek for allowing the revision by setting aside the impugned Judgments of both the Courts below.
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NC: 2023:KHC:27819 CRL.RP No. 1341 of 2019
8. Per contra, the learned counsel for respondent would contend that the cheque and signatures admittedly belongs to the accused and the presumption under Section 139 is in favour of the complainant, which is not at all rebutted. He would contend that Ex.D1 would not assist the accused in proving the allegations regarding he availing loan from the wife of the complainant and hence, he would contend that both the Courts below have rightly rejected the defence and sought for dismissal of the revision.
9. Having heard the arguments and after perusing the records, now the following point would arise for my consideration:-
"Whether the impugned judgment of conviction and order of sentence passed by the trial Court and confirmed by the First Appellate Court are perverse, arbitrary and illegal so as to call for any interference by this Court?"-7-
NC: 2023:KHC:27819 CRL.RP No. 1341 of 2019
10. It is the contention of the complainant that the accused has availed hand loan of Rs.3,50,000/- from the complainant on 15.05.2016 and in discharge of the said debt, a cheque under Ex.P1 came to be issued. On the contrary, the accused contended that there was no financial transaction between the complainant and himself. But, he had availed loan of Rs.1,00,000/- from the wife of the complainant and the same has been discharged and during availment of the said loan, a blank cheque was given as security and this now being misused.
11. Admittedly, the cheque-Ex.P1 belongs to the accused and it bears his signature. These facts are undisputed. Further, the cheque was also dishonoured for 'Insufficient Funds'. When the signature on the cheque and the cheque belongs to the accused have been admitted, the initial presumption under Section 139 of the N.I. Act is in favour of the complainant. It is for the accused to rebut the said presumption on the basis of preponderance of probabilities, though not on the basis of -8- NC: 2023:KHC:27819 CRL.RP No. 1341 of 2019 the same standards as that of the complainant, who is required to prove the case beyond all reasonable doubt. Ex.P3 is the copy of legal notice issued by the complainant to the accused and it is admittedly served on the accused. Ex.P6 is the reply notice wherein the accused has disputed the transaction with the complainant, but admits the transaction with the wife of the complainant. However, in the entire notice he has not disputed the financial status of the complainant.
12. On the contrary, during the course of the evidence, for the first time, half-hearted attempt has been made by making bald suggestion that he has no capacity to pay Rs.3,50,000/-. But, on the contrary he admits that, he did receive Rs.1,00,000/- from the wife of the complainant. When the accused admits the financial status of the wife of the complainant and when it is not his case that husband and wife are residing separately, then presumption under section 139 of N.I Act is required to be drawn in favour of complainant. The accused has placed -9- NC: 2023:KHC:27819 CRL.RP No. 1341 of 2019 reliance on Ex.D1. Ex.D1 is the cheque issued by one Pavithra in favour of the accused. The evidence of DW.2 discloses that the Pavithra is having a joint account in Canara Bank. The cheque issued for Rs.1,00,000/- under Ex. D1 was encashed by the accused. The accused who is examined as DW.1, in his evidence asserted that he repaid the amount in cash. But, when he has received the amount under Ex.D1, question of he repaying the said amount by way of cash does not arise at all. He has not produced any single piece of evidence to show that, he has repaid the said amount by way of Cash.
13. Apart from that, he has further asserted that, after returning the amount to the wife of the complainant, he demanded documents. But, the wife of the complainant did not return them on the ground that, they were misplaced and he went to the police station in this regard. At the out-set, the police have no business in such matters and it is evident that the accused tried to take the assistance from the police in order to prove his
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NC: 2023:KHC:27819 CRL.RP No. 1341 of 2019 defence. This is not permissible, as the accused is required to prove that the cheque under Ex.P1 is issued as security for the said loan transaction between the wife of the complainant and himself, but same is not forthcoming. Further, he did not assert that when he had returned the said loan amount in cash and further there is no evidence as to what compelled him to issue blank signed cheque. Hence, considering the defence of the accused, it cannot be presumed that, he has rebutted the presumption available in favour of the complainant.
14. Both the Courts below have appreciated the above aspects in proper perspective and analised the oral and documentary evidence in proper perspective. No illegality or perversity is found in the order of the trial Court and confirmed by the appellate court. As such, the point under consideration is answered in the negative and as such the petition being devoid of merits, fails. Accordingly, I proceed to pass the following:-
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CRL.RP No. 1341 of 2019
ORDER
i) The petition stands dismissed.
ii) judgment of conviction and order of sentence dated
02.04.2019 passed by the learned Civil Judge and
JMFC, Arsikere, in CC No.333/2017 and confirmed by the III Additional Sessions Judge, Hassan, in Criminal Appeal No.109/2019 vide judgment dated 18.10.2019, are stand confirmed.
iii) The bail bonds executed by the accused stand cancelled.
iv) The amount if any deposited by the accused/revision petitioner before this Court shall be transmitted to the trial Court.
v) The Registry is directed to send back the original records to the concerned trial Court along with a copy of this order, with a direction to secure the presence of the accused to recover the fine amount or else to serve the default sentence.
Sd/-
JUDGE KGR* List No.: 1 Sl No.: 20