Dismissed

Smt Zubeda v. Sri Somanatha Kotian

Karnataka HC5 Mar 2013CRL.RP/622/2010

Case brief

AI extract

What is this about?

In this s. 397(2) Cr.P.C. revision petition, the High Court of Karnataka dismissed the appeal against the conviction and sentence under s. 138 NI Act. The court held that the revision petitioner failed to discharge her burden of proving the cheque was not issued for a legally enforceable debt, especially as she admitted the transaction details without corroborating expert evidence from her husband

What did the court decide?

Revision petition dismissed; directed to pay remaining fine amount within two months.

Smt Zubeda Vs Sri Somanatha Kotian — Cheque Dishonour | Karnataka HC (2013)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

¶3

Dated this the 5^th day of March 2013

¶4

Before Hon’ble Mr.Justice V.SURI APPA RAO

¶5

CRL.R.P. No.622 OF 2010

¶6

Between:

¶7

Smt.Zubeda, W/o Sri Ummer Moidin, Major, R/at Salwa Cottage, Kotantikatte House, Kalathur Village, Chadranagar vai Shirva, Udupi Taluk & District. …Petitioner (By Sri S.Vishwajith Shetty, Adv.)

¶8

And:

¶9

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

¶10

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

¶11

¶12

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 04.05.2007 made in C.C.No.4148/2003 by the Court of II Addl. JMFC, Udupi and the judgment and order dated 15.12.2009 made in Crl.Appeal No.67/2007 by the Fast Track Judge, Udupi District, Udupi.

¶13

- 2 -

¶14

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

¶15

O R D E R

¶16

This revision petition is filed under Section 397(2)

¶17

Cr.P.C. challenging the judgment of conviction and sentence dated 04.05.2007 passed by the II Addl. Civil Judge (Jr.Dn.) & JMFC, Udupi, in C.C.No.4148/2003 confirmed by the Fast Track Court, Udupi, in Crl.A.No.67/2007, whereby the petitioner was found guilty for the offence under Section 138 of N.I.Act and sentenced to pay a fine of Rs.1,00,000/- and in default of payment of fine, she shall undergo simple imprisonment for a period of six months and out of the fine amount an amount of Rs.95,000/- 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.

¶18

Brief facts of the case are as hereunder:

¶19

¶20

The respondent filed a complaint before the Trial

¶21

Court invoking the provisions of Section 138 of N.I.Act alleging that the husband of the revision petitioner was running a stage carrier bus and was close friend of the

¶22

respondent. The revision petitioner therefore approached the complainant for handloan of Rs.90,000/- on 01.03.2003 and issued post dated cheque bearing No.167380 for Rs.90,000/- 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 31.05.2005 calling upon the revision petitioner to repay the amount of Rs.90,000/- within 15 days from the date of receipt of the notice. The same was returned with endorsement that the accused has not claimed the notice. The notice sent under Certificate of Posting is presumed to be

¶23

¶24

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.

¶25

Thereupon the trial Court examined the respondent as PW1 and marked Ex.P1 to P6. The revision petitioner was examined as DW1. The documents at Exs.C1 to C3 were marked.

¶26

Considering the oral and documentary evidence

¶27

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

¶28

¶29

enforceable debt. Accordingly the accused was

¶30

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

¶31

Thereafter the revision petitioner filed appeal before the Fast Track Court, Udupi, in Crl.A.No.67/2007. The Appellate Court by its judgment and order dated 15.12.2009 also confirmed the judgment of the Trial 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 her 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.

¶32

The learned Counsel for the revision petitioner submitted that the respondent-complainant himself availed loan from the husband of the revision petitioner

¶33

¶34

and the complainant used to collect the signed cheques of her husband to avail loan from third parties. The subject matter of the cheque is one such cheque issued by her husband.

¶35

However, the revision petitioner did not choose

¶36

to examine her husband to prove the above contention. In the evidence she has clearly admitted that the cheque in question issued by her belonged to her husband. Though she has disputed the signature on the cheque she did not take any steps to send the cheque to the hand-writing expert for comparison of the signature on the cheque with her admitted signature. She further contends that the cheque might have been passed on to the complainant by oversight by her husband. As already stated, the revision petitioner has failed to examine her husband and in the evidence she has admitted that the properties of her husband were attached by Bank for recovery of the loan amount

¶37

¶38

availed by the revision petitioner and her husband and that they availed loans from various financial institutions and number of cases are pending against herself and her husband for recovery of the loan amount. It is also further admitted that the Canara Bank instituted a suit for recovery of Rs.9 lakhs from her and her husband. Therefore, it is highly improbable to accept the contention of the revision petitioner that her husband is financially sound and that the respondent complainant himself used to avail from her husband and that the cheque was issued in that connection. When the revision petitioner has clearly admitted that the cheque issued by her relates to her husband, the question of misusing the cheque by her husband does not arise. 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 respect of the existing debt lies on the revision petitioner herself which has to be proved by

¶39

¶40

cogent evidence by her and that the revision petitioner

¶41

has not discharged the burden.

¶42

Considering the evidence on record, the Trial

¶43

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.

¶44

The revision petition is therefore dismissed.

¶45

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.

¶46

¶47

The office is directed to transmit the lower Court

¶48

records along with a copy of this order.

¶49

Sd/JUDGE

¶50

JT/-

Smt Zubeda v. Sri Somanatha Kotian

Case brief

What is this about?

What did the court decide?

Smt Zubeda v. Sri Somanatha Kotian

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Chida @ Chidananda Vs State by Pandapura Police

Sunil Kumar @ Sunil Vs State of Karnataka

Sri Ganesh Vs the State of Karnataka

Sri Ummer Moidin S/O Moidin Vs Sri Somanatha Kotian S/O Siddu Poojary

M K Mudalagiri Vs a S Rangegowda

B Suma Vs v Lakshmi