Dismissed

Sri Ummer Moidin S/O Moidin v. Sri Somanatha Kotian S/O Siddu Poojary

Karnataka HC5 Mar 2013CRL.RP/189/2010

Case brief

AI extract

What is this about?

High Court of Karnataka at Bangalore dismissed a revision petition under Section 397(2) Cr.P.C. challenging conviction and sentence for cheque dishonour under Section 138 NI Act. Upheld lower courts' finding that the petitioner failed to prove the cheque was not for a legally enforceable debt.

What did the court decide?

The revision petition filed under Section 397(2) Cr.P.C. was dismissed, confirming conviction and sentence with direction to pay balance amount.

Sri Ummer Moidin S/O Moidin Vs Sri Somanatha Kotian S/O… — Cheque Dishonour | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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Dated this the 5^th day of March 2013

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Before

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Hon’ble Mr.Justice V.SURI APPA RAO

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CRL.R.P. No.189 OF 2010

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Between:

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Sri Ummer Moidin, S/o Moidin, Aged about 47 years, R/at Salwa Cottage, Kotantikatte House, Kalathur Village, Chandranagar via Shirva Udupi Taluk & District. …Petitioner

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(By Sri S.Vishwajith Shetty, Adv.)

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And: Sri Somanatha Kotian, S/o Siddu Poojary, Major, R/o Yelladadi Thota, Tenka Yermal Post, Udupi Taluk & District. …Respondent

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(By Sri S.K.Acharya, Adv.)

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This Crl. RP. is filed under Section 397(2) Cr.P.C. praying that this Hon’ble Court be pleased to set aside the judgment and order of conviction dated 26.4.07 made in C.C.No.4142/2003 by the Court of II Addl. C.J.(Jr.Dn.) and JMFC., Udupi and the judgment and order dated 15.12.09

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made in Crl.A.No.66/2007 by the P.O., Fast Track Judge, Udupi District, Udupi and Acquit the petitioner.

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This Crl. RP. coming on for final hearing this day, the Court, made the following:

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O R D E R

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This revision petition is filed under Section 397(2)

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Cr.P.C. challenging the judgment of conviction and sentence dated 26.04.2007 passed by the II Addl. Civil Judge (Jr.Dn.) & JMFC, Udupi, in C.C.No.4142/2003 confirmed by the Fast Track Court, Udupi, in Crl.A.No.66/2007, whereby the petitioner was found guilty for the offence under Section 138 of N.I.Act and sentenced to pay a fine of Rs.1,10,000/- and in default of payment of fine, he shall undergo simple imprisonment for a period of six months and out of the fine amount an amount of Rs.1,05,000/- shall be paid to the complainant-respondent as compensation under Section 357 of Cr.P.C. Aggrieved by the judgment of conviction and order, the revision petitioner has filed this revision petition.

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Brief facts of the case are as hereunder:

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The respondent filed a complaint before the Trial

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Court invoking the provisions of Section 138 of N.I.Act alleging that the revision petitioner was running a stage carrier bus and was close friend of the respondent. The revision petitioner therefore approached the complainant for handloan of Rs.95,000/- on 23.01.2003 and issued post dated cheque bearing No.862294 for Rs.95,000/- dated 23.05.2003. When the respondent presented the cheque for encashment through Vijaya Bank, where he was having an account, the same was dishonoured for want of sufficient funds. Immediately the respondent issued demand notice dated 31.05.2003 calling upon the revision petitioner to repay the cheque amount within 15 days from the date of receipt of the notice. The same was returned with an endorsement that the accused has not claimed the notice. The notice sent under Certificate of Posting is presumed to be

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served. Therefore, inspite of such notice, the revision petitioner has not chosen to pay the cheque amount to the respondent within the stipulated period. Therefore, the respondent filed a complaint before the Trial Court. The Trial Court has taken cognizance of the case and issued summons to the revision petitioner. The Revision Petitioner pleaded not guilty before the Trial Court and claimed to be tried.

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Thereupon the trial Court examined the respondent as PW1 and got marked the documents at Ex.P1 to P14. The revision petitioner was examined as DW1. The documents at Exs.C1 to C5 were marked.

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Considering the oral and documentary evidence

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adduced by both the parties, the Trial Court observed that the revision petitioner failed to prove that the cheque which was issued was not towards the legally enforceable debt. Accordingly the accused was

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convicted and sentenced under Section 138 of N.I.Act

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and passed the above order of conviction and sentence.

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Thereafter the revision petitioner filed appeal before the Fast Track Court, Udupi, in Crl.A.No.66/2007. The Appellate Court by its judgment dated 15.12.2009 confirmed the judgment of the Trial

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Court observing that the revision petitioner and her husband are in the habit of availing the loan and issuing signed cheques. Further it observed that when the issuance of cheque has been specifically admitted by the revision petitioner, the burden is on him to rebut the presumption which is in favour of the complainant as contemplated under Section 139 of N.I.Act and that the judgment of the learned Magistrate does not require interference.

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The learned Counsel for the revision petitioner submitted that the revision petitioner used to issue signed cheques to the complainant to avail loan from

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third parties. The subject matter of the cheque is one such cheque issued by the revision petitioner and misused by the complainant.

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In the evidence the revision petitioner has

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stated that neither he nor his wife have received any amount by way of cash or kind from the complainant.

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He has also stated that he has not issued the cheque in question for repayment of any loan. He has also stated

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that the complainant has admitted that other three cheques issued by him are in the custody of the complainant and the complainant has not disclosed any details about the same. The contents of the cheque is not in his handwriting. He has admitted that his properties were attached by Bank for recovery of the loan amount availed by the revision petitioner and his wife and that they availed loans from various financial institutions and number of cases are pending against him and his wife for recovery of the loan amount. It is

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also further admitted that the Canara Bank instituted a suit for recovery of Rs.9 lakhs from him and his wife.

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Therefore, it is highly improbable to accept the contention of the revision petitioner that he is financially sound and the revision petitioner used to issue signed cheques to the complainant to avail loan from third parties that the cheque was issued in that connection. When the revision petitioner has clearly admitted that three cheques issued by him are in the custody of the complainant, the question of misusing the cheque by the complainant does not arise. Though he has disputed the signature on the cheque he did not take any steps to send the cheque to the hand-writing expert for comparison of the signature on the cheque with his admitted signature.

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The Trial Court as well as the Appellate Court have rightly found, the burden of proving that the cheque was not issued by the revision petitioner in

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respect of the existing date lies on the revision petitioner himself which has to be proved by cogent evidence by him and that the revision petitioner has not discharged the burden.

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Considering the evidence on record, the Trial Court as well as the Appellate Court are justified in convicting the revision petitioner for the offence under Section 138 of N.I.Act. There is no illegality or irregularity in the judgments passed by the Trial Court and the Appellate Court.

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The revision petition is therefore dismissed.

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If any amount is deposited by the revision petitioner during the pendency of this appeal, the same shall be given credit and the revision petitioner is directed to pay the balance amount within two months from the date of receipt of a copy of this order.

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The office is directed to transmit the lower Court

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records along with a copy of this order.

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Sd/JUDGE

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JT/-

Sri Ummer Moidin S/O Moidin v. Sri Somanatha Kotian S/O Siddu Poojary

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Sri Ummer Moidin S/O Moidin v. Sri Somanatha Kotian S/O Siddu Poojary

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