Karnataka High Court
Mr N Sathya Murthy vs Mr Basanth Kumar Patil on 6 November, 2012
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRL.R.P.NO.1334/2008
BETWEEN:
MR. N.SATHYA MURTHY
S/O LATE N.V.GOPAL SETTY
AGED ABOUT 64 YEARS
R/AT NO.100/42
SRI SAI NILAYA, 13TH MAIN
NAGENDRA BLOCK, BSK III STAGE
BENGALURU.
... PETITIONER
[BY SRI H.S.VIVEKANANDA, ADV.)
AND:
MR. BASANTH KUMAR PATIL
R/AT NO.176, 5TH CROSS
GANDHINAGAR
BENGALURU
REP BY GPA HOLDER
MR. R.SHANKAR
ACCOUNTANT.
... RESPONDENT
(BY SRI H.RAMACHANDRA, ADV. FOR
M/S. H.R.ANANTHA KRISHNAMURTHY & ASSTS, ADVS.)
THIS CRL.RP IS FILED UNDER SECTION 397 CR.P.C
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE DATED 27.11.2007 IN C.C.NO.32643/2002
PASSED BY THE XV ADDL. C.M.M., BENGALURU, AND
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FURTHER SET ASIDE THE JUDGMENT CONFIRMED BY
THE XXXVI ADDL. CITY CIVIL AND S.J. (CCH-37)
BENGALURU, PASSED IN CRL.A.NO.1438/2007 VIDE
ORDER DATED 23.10.2008.
THIS PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
On the basis of a complaint filed by the respondent against the petitioner alleging commission of an offence under Section 138 of N.I. Act i.e., in C.C.No.32643/2002, the learned XV Additional Chief Metropolitan Magistrate, Bangalore, by a judgment dated 27.11.2007, convicted the petitioner for the offences punishable under Section 138 of the Act and sentenced him to pay fine of Rs.3,20,000/-. Out of the fine amount, when recovered, Rs.3,15,000/- was ordered to be paid to the complainant as compensation. In case of default to pay the fine, the accused-petitioner was ordered to undergo simple imprisonment for a period of six months. When assailed in Crl.A.No.1438/2007, the learned XXXVI Additional City 3 Civil and Sessions Judge, Bangalore, confirmed the judgment of conviction and order of sentence and dismissed the appeal on 23.10.2008. Feeling aggrieved, the accused has filed this criminal revision petition.
2. Sri. Vivekananda, learned Advocate, appearing for the petitioner, contended that, though the ingredients of the offence under Section 138 of N.I. Act has not been met, the learned Magistrate erroneously applied the presumption under Section 139 of the Act to find the accused-petitioner guilty of the charged offence. He submitted that the appeal filed, without being considered in the correct perspective was illegally dismissed. Learned counsel submitted that the complainant has failed to make out the existence of illegal enforceable debt or liability and in the circumstances, the courts below are not justified in applying the presumption under Section 139 of the Act to hold the petitioner guilty of the charged offence. Learned counsel submitted that the evidence of the 4 complainant which is full of discrepancies has not been correctly appreciated and despite the presumption under Section 139 of the Act having been rebutted by the accused i.e., by cross-examination of PW.1 and also the defence evidence, the impugned judgments have been passed, which warrant interference.
3. Sri. H.Ramachandra, learned Advocate appearing for the respondent, on the other hand, supported the view taken by the courts below and sought upholding of the findings recorded in the impugned judgments. Learned counsel took me through the record of the case and submitted that there is correct appreciation and reappreciation of the record by the courts below and hence, no further appreciation of evidence is permissible, in exercise of revisional jurisdiction by this Court. Learned counsel submitted that there is neither any perversity nor any illegality committed by the courts below in the matter of consideration of the criminal case and the appeal 5 respectively. Learned counsel sought upholding of the impugned judgments.
4. Perused the record. The points for determination are;
'whether the ingredients of the offence enumerated under Section 139 of the Act has been met and if so, whether the accused was able to rebut the statutory presumption contemplated under Section 139 of the Act?'
5. Parties are known to each other. Petitioner does not dispute the issuance of the cheque marked as Ex.P-3 and his signature on it marked as Ex.P-3(a). Ex.P-3 was returned for the reason "exceeds arrangement" as is evident from Ex.P-4. To pay the cheque amount, demand notice - Ex.P-5 was issued both by RPAD and Under Certificate of Posting. Notice sent by RPAD was returned with endorsement "not claimed". Payment having not been made, complaint/Ex.P-1 was filed, cognizance was taken, case was registered and process was issued against the 6 accused, who appeared and was enlarged on bail. Charge was put to the accused and in view of his denial, during trial, the complainant got himself examined as PW.1. The complainant, apart from producing the dishonoured cheque, endorsement of the Bank and copy of the demand notice and the postal documents, has also produced a promissory note/Ex.P-9 and consideration receipt/Ex.P-10 executed by the accused- petitioner. That apart, he has relied upon a letter dated 17.01.2000, of the accused, which was marked as Ex.P-11. Though PW.1 has been cross-examined at length, nothing material has been elicited to hold that the petitioner had not issued the cheque/Ex.P-3 in favour of PW.1. In fact, there is no challenge to Exs.P-9 to P-11. Ex.P-11 is a letter which the petitioner sent to the complainant-PW.1, on 17.01.2000. The subject matter there is "loan of Rs.2,00,000/-". In the said letter, "the petitioner has promised to clear the loan within December, 1999, since he was under financial 7 crisis and could not fulfill his assurance. He sought grant of two months time to clear the loan amount. He has also acknowledged that he has due seven months interest, which he assured to clear within the month end". It is not the case of the petitioner that he paid the loan, as acknowledged in Ex.P11.
6. Though Sri. Vivekananda, submitted that the loan was Rs.2,00,000/- only i.e., with reference to Exs.P-9 to P-11, the liability, if any, is Rs.2,00,000/- only and not Rs.3,00,000/-. I find it difficult to accept the contention, since the loan was borrowed on 17.07.1998, as is evident from Exs.P-9 and P-10, which amount was agreed to be repaid, along with interest, as is evident from Ex.P-11 dated 17.01.2000. The cheque/Ex.P-3 initially dated 26.12.2000, was validated as 20.07.2001 by the petitioner. From the date of Exs.P-9 and P-10, interest must have accumulated and towards payment of the outstanding amount, Ex.P-3 has been issued by the petitioner. Petitioner is a 8 graduate and was in to money lending business, being a commission agent. In the circumstances, the defence putforth by him being not probable, the learned Magistrate is justified in holding that the petitioner has failed to rebut the statutory presumption under Section 139 of the Act.
7. In the case of Rangappa vs. Mohan, AIR 2010 SC 1898, it has been held that "presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. It has been further observed that the presumption being rebuttable, it is open to the accused to raise a defence, wherein the existence of a legally enforceable debt or liability can be contested. However, it was made clear that there is an initial presumption which favours the complainant and Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. 9
8. Though the petitioner-accused deposed as DW.1, in view of the non-denial of issuance of cheque/Ex.P-3, which gets corroboration from Ex.P-11, the defence has not been probabalised. In the circumstances, the learned Magistrate is justified in applying the presumption under Section 139 of the Act. Even otherwise, the complainant has proved the advancement of loan to the petitioner, towards repayment of which cheque/Ex.P-3 has been issued. Since the cheque was returned for the reason "exceeds arrangement", the demand notice having been issued within the stipulated period and complaint having been filed within the period of limitation, the ingredients of Section 138 of the Act has been met and the accused- petitioner has failed to rebut the statutory presumption under Section 139 of the Act.
9. Both the Courts below have correctly noticed material aspects of the case and the findings recorded in the impugned Judgments are neither perverse nor 10 illegal, warranting any interference in exercise of the jurisdiction under Section 397 Cr.P.C. The finding of guilt recorded against the petitioner being well supported by the evidence on record the revision petition has to fail.
10. Though Sri. Vivekananda, submitted that the fine amount imposed is excessive, I do not find justification to interfere with the sentence of fine, keeping in view the fact that the cheque/Ex.P-3 was issued initially on 26.12.2000 and was validated on 20.07.2001. More than 11 years has elapsed. The loan amount was availed by the petitioner, who has admitted that he is a commission agent. The fine imposed is not excessive/irrational.
In the result, petition being devoid of merit is dismissed. The amount in deposit be released in favour of the complainant. Petitioner is granted time till 28.02.2013, to deposit the balance fine amount in the 11 trial Court. The bail bond and the surety bond shall stand cancelled, if the balance fine amount is not deposited in the trial Court before 28.02.2013 and the petitioner shall surrender before the trial Court and serve the jail sentence.
The fine amount when deposited, be released in favour of the complainant, i.e., to the extent indicated in the trial Court judgment.
Sd/-
JUDGE ca