Karnataka High Court
B Jayarama Shetty S/O B Raghurama Reddy vs Biviyas Finance And Leasing Ltd on 16 November, 2011
Equivalent citations: 2012 ACD 268 (KAR), (2012) 111 ALLINDCAS 740 (KAR), 2012 (1) AIR KAR R 743, (2013) 1 CIVLJ 896, (2012) 4 CRIMES 11, (2012) 3 CURCC 274, (2012) 2 KANT LJ 160, (2012) 3 BANKCAS 267, (2012) 1 KCCR 156
ye . Os 7 ; See eee oes IN THE HIGH, COURT oF KARNATAKA aT BANGALORE coe _ DATED THIS THE 16 pay OF NOVEMBER, 2011 i oo - BEFORE. ae | THE HON'BLE MR. JUSTICE A. s. PACHMAPURE cae a CRIMINAL REVISION PETITION NO. 53 or 2009 aes an BETWEEN: 7 B. Jayararna Shetty, | S/o. B. Raghurama Reddy, Aged about 41 years, -- . Residing at Biri House, Neralkatte, Karkunje Post. 0 6 0 . . Kundapu iva. Taluic. Be oa PETTTIONER/S - (By Sti. op 'Mot ands shetty, 'Adv. y : | AND: Biviyas Finance and Leasing Ltd. Subha Nidhi Cormplex, Kundapura. OA Public Liniited Company, on Rep. by its Director Sri, VLD, DY souza, Huglur Village, Kupdapnura Taluk. .. RESPONDENT/S | (By Sri. H. Pavanachandra Shetty, Adv.) This Criminal Revision Petition is fled under Section 3297 Or. pC praying to set aside the order and sentence 7 dt. 13.7.2007 passed by the Addl. Civil Judge (Jr.Dn.) & JMFC., -. .Kundapura in C.C.No.1705/2001 and the judgment dt: 17: 12. 2008 passed by the 'Sessions. uae, Udupi a 3 A.No.102/2007. "This Criminal Revision Petition - coming on. for Hearing, meaiae - : 'his aay, the Court made the © following: ORDER
"The petitioner has challenged the concurrent findings of ous no "conviction. 'and the modified sentenc e for the: charge. under'
- Section. 138 of the: Negotiable. Instruments "Act thereinatter - : 7 "called as 'the Act' for short). ee 7 oa
2. 'The patios ones herein. is , the aveused, whereas, the :
| respondent i is the compiainant, who 'submitted his complaint _ under Section 200 cr. P c. and it is averred that the 'complainant 'ent to toan. to the accused and on 2.4.2001 the accused issued a a cheque for Rs. 2 lakhs for the discharge of the : : debt & due by him to. the complainant and when the said cheque | see - piegented: _ for ericaghinent, 'it returned with an endorsement of insufficient funds. The complainant issued the J, motice. Itis-said to have been refused. In the circumstances, a
-- womplaint came to be filed to initiate action against the
-- "petitioner for the aforesaid offences.
Me was « due and 'therefore, in the absence of any material on a o record to prove the amount due, the Courts below commitied oS oe | an error in \ awarding the conviction. "So also, he. submis cha a "there are no caverments in the - complaint. as > regards the date 7 aees . month, and | year of the transaction and it is: aot even | stated as § ae to the nature of the Joan transaction and further, he 'submits ~ ; that the complainant has not examined the postal official to : prove. the refusal of the 3 nodice and | that Exs.P.7 i 'and 8 'the a | account, extracts cannot be relie de upon as , they ave not 'been "proved by: examining g ne the author of tie 4 focuments. it is his further submission that oven si 5 could be seen from Ex.P.7, the amount due j is 1288, than the 'cheque amount and therefore, there was "a0 nessa) fort thé accused to issue cheque for Rs.2 00,000 J-. " Pur thermore he contends that Ex.P.1 was : : 'given as asa 1 security at the time of the loan transaction and that | the same has been misused by the complainant for making a false claim. On these grounds, he has sought for setting aside ".. the conviction and the sentence.
8. Per contra, the learned counsel for the respondent . submits that the issuance of the cheque has been admitted Mo = s and also the signature. and there is' a. "presumption ee BOANSE oa Section 189 of the Act about the existence of the debe and the eee : liability to pay the: amount mentioned | in | the cheque | t0' wards . : vs .
| - the dues. 'He. also submits. that though Dw. 1 admits in. nthe - | "evidence that he has got the "decuments, to. "prove the. a transaction and it 'is "not 'produced: and therefore, "the: es a "presumption is not rebutted. 'on these grounds, he has sought :
"for the dismissal of the petition.
7, : The | whe counsel: for the peiitioner has placed | reliance on he decision reported in IER 2008 KAR 3635 (K. Narayana Naval ve Sri. M. Shivarama Shetty) wherein the cheque 'las isstied as a security and this Court held that the issuance of the cheque is not for the discharge of the existing . debt. On this aspect of . the matter, it is relevant to note that 7 DW. itz his evidence at the first instance states that the cheque was given to Shahji and later, makes a submission that it was given to Harish. So, this admission goes to establish that : the said cheque was not given to the complainant at the time when the loan transaction was eritered into between the _ parties. As could be seen from Ex.P.7 the loan transaction is = "that mere 'marking of a document as an "exhibit does. 'not ae Soe dispense with its. 'proof, "The: Apex Court was: + taking into pee _ "consideration the proceedings ina suit, "but as 'the 6 proceedings Sen on hand being : a summary 'trial, the prin: ciple. cannot be os 2 accepted and when the respondent himself admitted the ; af a document j in | evidence and it was marked with ¢ consent, . oT do af not think. that there is any" error on the part. of the Courts . below in accepting Exs, Pz and 8 as "the account extracts of the loan transaction between the parties.
9. The ii aioe = upon ATR 1961 SC 1277 (Devides "and - others. vs, -Shrishailappa and others) wherein the Apex Court considering the non production of an important document. held that in case if it is not produced when. it wes not in hie possession or power, no adverse "inference could be drawn. To mean, in case, if a document is in nossession. of. a party and if the same is not produced. adverse inference could be drawn against a person who was to "produce the document. This decision was referred because the "complainant did not produce the loan documents and _ therefore, the learned counsel sought for drawing adverse oe "the particulars of the Joan transaction 'is. 'concerned, the * to the amount which has been n paid by the is spondent tewarls - - | cannot be extended to the facts ¢ on 1 hen
10. "The counsel also ¥ relied: i the decision reported in 7 (2006) BC (2738. of Kerala High | C ourt wherein the Court considering the provisions of Section 13E explanation held that the debt or the liability. bo be~ recovered must be legally enforceable. Fusthézinore, be relied upon ILR 2006 KAR 3579 (M/s. Sathavahana Ispat Ltd. vs. Umesh Sharma and another) . wherein the cheque. was issued in respect of uncertain future
- ltobiity and i ra was 5 held that the provisions of Section 138 of the Act are not attracted, He further relied upon 2004 CrL.L.J. . 2812 (Abdul Raheem vs. U.P.K. Mohammied Haneefa) wherein
- 7 the High Court of Madras considering the reference 'Legally . - Enforceable Debt' held that the story of hand Joan putforth by . complainant was improbable in view of strained relations inference. But when the loan transaction is admitted, so far as
- complainant has produced J Exs, P. 7 and Pp. 8 whieis reveal th eo ne a | date of transaction, the number of installments ete. in addition egy 'the dues. "Therefore, I: am of the: 'opinion that the "principle oe = between parties and pendency of itigations. between the parties. a . and that the Court cannot interfere with the order of acquittal :
; He also relied 1 upon the decision reported in LR 2007 KAR ue 2709 (M. Senguttuvan vs. Mahadevaswomy) wherein it is 2 hele oa . by this Court that the presumption can be rebutted ¢ ev en 1 ots «the | basis of the facts elicited: in the. cross: exammiation. of the"
complainant as has been done in | the present. case. and the judgment of acquittal was afirmed.
11. The peaitioner in. is evidence is not certain as to whom he had iss ued ihe che eque and though: he admits in the evidence that he has the documents.to prove the satisfaction of the loan, he does not produce any documents and when he is in possession: of the said di documents, it was his duty to produce _ the same before the Court and therefore, the non production of ~ the 1naterial documents leads to an adverse inference. If really, an 3 erhount of. Re 00 ,000/- was not due and he has fully paid the arnount . of loan that was advanced, there was no ~ "impediment for him to produce the documents and convince the Court that he has no liability under law. So, merely . because in the complaint the date of the transaction has not eee : een furnished with: the particulars, the documents: ee coe oe val Exs. P. 7 and p. 8 clearly iead to an inference that the ac coused : pe a has 1 not discharged the liabiity as a 2 whole and as on 4, 3. 1 1999. acces he w was: due for: an amount of Rs, 1 39, 839/-. Tt may be that. od because of the non » payment of the installments, 'the interest ceneon accrued on 'the teat as on the Gate "of the cheque i. Le. 2 A, 200 1 : :
the amount: to an "extent, of Rs.2,00, 0,000/- "was. dus to the - 'complainant. 1 In such | circu: ionstanc es . "when 'the cheque has - oe been Issued for Rs: 2, 00 .000/- = i. ham of the 'opinion that there is ae error on the pate of the C Courts helow in holding that the"
complainant was, centivied | te. ~ legally enforceable debt of Rs.2,00, c00/- as on 12.4 A. 2001.
12. So far - he ai which has been issued by the . complainant under EXP.3 and an envelope which was returned "to the complamant was produced at Ex.P.5. There is a postal endorsement' to the effect that the notice was refused. Apart from this endorsement, there are no other endorsements on . REPS and Ex.P.G6 envelope is accompanied by the acknowledgement and it has been returned to the complainant. . Having sent the notice by registered post, the complainant has rh : ae eer SREP ESO ae i 'produced ExPA "the postal receipt, "Under the provisions of AEA esd "Section | q 4 of the Indian Evidence Act, when a notice i is, sent o Sore "the « correct: address, the presumption i is that it is' gone, to 9 the aa person | to whom it is addressed and when there | is a | postal _. endorsement that it has been refused, a presumption ba nas 'to 10 be. raed in in the business transactions of the postal office, TF infact, .
"ke ay it was for the a to examine the "postal officials to rebut the. presumption. Tuough the learned counsel relied upon nthe di deci ision 1 of this Court yeported in 2000 (4) Kar. Lal. 145 { (®amarna Vs. T, Jayaprakash), the principle does not: apply io the facts. on hand. as there was no such refusal of notice in suchi cate." --
13. This is a revision against concurrent findings of conviction and the Scope is limited unless an error apparent on the face of the record is brought to the notice of this Court or that there is inherent defect in the appreciation of the evidence
- "adduced by the parties. So, in the context of this principle and "the facts stated above, I am of the opinion that the petitioner .. has not made out any such grounds to warrant interference in mM Ae a