Karnataka High Court
Sri H K Ismail vs Sri V B Onkar on 18 April, 2022
Crl.R.P.No.496/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL REVISION PETITION No.496/2017
BETWEEN:
SRI.H.K.ISMAIL
S/O KUNNIKUTTI
AGED ABOUT 46 YEARS
R/O RAGHAVENDRA NAGARA
KOPPA TOWN, KOPPA TALUK
CHIKKAMAGALURU DISTRICT - 577 126
... PETITIONER
(BY SRI.GIRISH KODGI, ADV.)
AND:
SRI.V.B.ONKAR
S/O BADEYAPPA GOWDA
AGED ABOUT 35 YEARS
R/O H.C.HALLI NEW EXTEN.,
TARIKERE TALUK
CHIKKAMAGALURU DISTRICT - 577 549
... RESPONDENT
(BY SRI.P.P.HEGDE, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT PASSED OF CONVICTION AND SENTENCE
PASSED BY THE LEARNED CIVIL JUDGE AND ADDITIONAL
J.M.F.C., TARIKERE IN C.C.NO.390/2011 DATED 18.06.2014
AND ALSO CONFIRMED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, CHIKKAMAGALURU IN CRIMINAL APPEAL
NO.84/2014 DATED 22.03.2017 AND ACQUIT THE
PETITIONER BY ALLOWING THIS REVISION PETITION.
Crl.R.P.No.496/2017
2
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE MADE THE FOLLOWING:
ORDER
"Whether the impugned order of conviction and sentence passed against the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881 ('the NI Act' for short) suffer illegality impropriety and incorrectness?" is the question involved in this case.
2. The petitioner was prosecuted in C.C.No.390/2011 on the file of the Civil Judge and Additional JMFC, Tarikere on the basis of the complaint filed by the respondent. Respondent was the complainant and the petitioner was the accused in the said case. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the Trial Court.
3. The complainant presented the cheque Ex.P1 dated 12.05.2011 drawn on State Bank of Mysore, Koppa Branch for a sum of Rs.8,00,000/- for realization through his account in State Bank of Mysore, Crl.R.P.No.496/2017 3 Tarikere. The cheque was purportedly drawn by the accused in favour of the complainant.
4. The cheque was dishonoured as per the bank memos Ex.P2 and 3 with the endorsement "funds insufficient". The complainant got issued notice as per Ex.P4 to the accused claiming that the cheque was issued towards discharge of his liability without making arrangement for realization of the same. It was alleged that thereby the accused has cheated the complainant for the offence punishable under Section 138 of the NI Act. Under the notice Ex.P4 the complainant called upon the accused to pay the cheque amount within 15 days or else to face prosecution.
5. The accused did not reply the notice. The complainant ultimately filed the complaint before the trial Court to prosecute the accused. The trial Court on taking cognizance of the offence registered the case in C.C.No.390/2011, summoned the accused and tried him for the offence under Section 138 of the NI Act. Crl.R.P.No.496/2017 4
6. During the trial, the accused admitted that the cheque Ex.P1 pertains to his account and it bears his signature. The complainant contended that the accused borrowed loan of Rs.8,00,000/- from him on 29.01.2010 for his shoe business and domestic needs assuring to repay the same. It was his further case that regarding the said transaction, accused executed the promissory note as per Ex.P9 and he issued cheque Ex.P1 to discharge the said liability.
7. Whereas the defence of the accused was that regarding the hotel business transaction he had received some money and in that regard he had issued two blank cheques and two blank papers, by misusing the same, the complainant has concocted Exs.P1 and P9 and filed the false complaint.
8. The trial Court on hearing the parties, rejected the defence of the accused, convicted him for the offence punishable under Section 138 of the NI Act, and sentenced him to pay fine of Rs.8,81,000/-. Out of Crl.R.P.No.496/2017 5 the said amount the trial Court awarded Rs.8,80,000/- to the complainant as compensation.
9. The petitioner challenged the said order of conviction and sentence before the Principal District and Sessions Judge, Chikkamagalur in Crl.A.No.84/2014. The First Appellate Court on hearing the parties by the impugned order dismissed the appeal and confirmed the order of conviction and sentence passed by the trial Court.
10. Learned counsel for the petitioner-accused seeks to assail the order of conviction and sentence on the following grounds:
i) The lending capacity of the complainant was not proved;
ii) Regarding the complainant misusing the cheques, the accused filed complaint as per Ex.D1 before the jurisdictional police. In those proceedings, the complainant had given a statement before the Investigating Officer admitting the defence of the accused. The application filed by the accused to Crl.R.P.No.496/2017 6 summon the said statement was unjustifiably rejected by the trial Court and the Courts below failed to appreciate the evidence in proper perspective.
11. Per contra, learned counsel for the respondent seeks to justify the impugned order on the following grounds:
i) Both the Courts below on sound appreciation of the evidence have indicted the accused;
ii) In the revisional jurisdiction this Court cannot interfere with such findings of the fact;
iii) The accused had not disputed the lending capacity of the complainant and
iv) The defence that cheque was issued in some other transaction and that was misused was an after thought.
12. This being the revision petition under Section 397 Cr.P.C. against the concurrent findings of the Courts below, the scope of interference in the matter is very limited. Unless it is shown that the orders of the Courts below suffer illegality, impropriety Crl.R.P.No.496/2017 7 or incorrectness, this Court cannot interfere in the matter.
13. The accused did not dispute that the cheque Ex.P1 pertains to his account and it bears his signature. He did not even dispute the service of notice Ex.P4. Soon after the service of notice, he did not issue any reply denying the contention of the complainant that he had issued the cheque Ex.P1 towards discharge of his liability. The dishonour of cheque for want of sufficient funds was also not disputed.
14. Only during the course of trial, the accused came up with a defence that blank cheques were issued in connection with some hotel transactions and one of that was misused. The facts that the cheque pertains to the account of the accused and the signature on the same were admitted. Therefore, the presumption under Section 118 and 139 of the N.I. Act to the effect that the cheque was issued for consideration and towards discharge of liability arises. Then, it was for the accused to rebut the said presumption.
Crl.R.P.No.496/20178
15. The Hon'ble Supreme Court in Rangappa vs. Sri Mohan1 has held that once the aforesaid two facts are satisfied, the burden is on the accused to rebut the presumption that the cheque was issued for consideration and towards discharge of liability.
16. In APS Forex Services Pvt. Ltd vs. Shakti International Fashion Linkers and others2 reiterating the ratio laid down in Rangappa's case, it was held that unless the lending capacity of the complainant is disputed, heavy burden is on the accused to rebut the presumption. It was further held that the accused was required to rebut the presumption by leading acceptable evidence.
17. Though it was argued that the lending capacity of the complainant was disputed, it was elicited by the defence Counsel himself in the cross-examination of PW.1 that he was an agriculturist owning 2 acres of land. PW.1 further stated that apart from his land he 1 (2010) 11 SCC 441 2 (AIR 2020 SC 945) Crl.R.P.No.496/2017 9 was cultivating sugarcane, paddy and ginger by taking the lands of others on contract basis and he had the income from that.
18. In the cross-examination of PW.1 the lending capacity of PW.1 was not disputed. Contrary to that, accused himself suggested that he had leased out his hotel to the complainant by receiving Rs.3,00,000/- from him. By the said suggestion itself, the accused admitted the financial capacity of the complainant.
19. Though complainant claimed that he had lodged the complaint as per Ex.D1 in Koppa Police station, nothing was produced to show that after receiving the said complaint, any first information report was registered against the complainant and that reached any logical end.
20. So far as the contention regarding rejection of the application of the accused to summon the statement allegedly recorded by the Investigating Officer in the proceedings under Ex.D1, the trial Court Crl.R.P.No.496/2017 10 rightly held that if there are any records in pursuance of Ex.D1, they would be public records and the accused could produce the certified copy of the same. If based on Ex.D1, any first information report was registered, the accused could have secured the same and produced them before the trial Court.
21. Without even producing the copy of first information report, a futile attempt was made by filing an application claiming that Investigating Officer has recorded the statement of the complainant in those proceedings. Moreover the accused accepted that order without challenging the same. Therefore for the first time in this revision petition it is not open to the accused to question the validity of the order of the Courts below on such ground.
22. Having regard to the facts and circumstances, the Courts below rightly gave the benefit of presumption under Sections 118 and 139 of the NI Act to the complainant and held that the accused failed to rebut such presumption. This Court does not find any Crl.R.P.No.496/2017 11 illegality, impropriety or incorrectness in the impugned order of conviction and sentence passed by the trial Court and confirmed by the First Appellate Court. Therefore, the revision petition is dismissed.
The amount in deposit, if any, shall be released to the complainant.
Registry to return the trial Court records forthwith.
Sd/-
JUDGE akc