Dismissed

Sri.M.a. Rajendra S/O Late M.S. Ananthappa v. Sri.Narayan Somayya Kurdekar

Karnataka HC4 Dec 2020CRL.RP/100294/2019

Case brief

AI extract

What is this about?

In a criminal revision petition preferred under Section 397 Cr.P.C., the High Court of Karnataka dismissed the appeal of an accused convicted under Section 138 of the Negotiable Instruments Act. The court rejected challenges regarding notice service and the complainant's capacity to lend, noting the accused failed to rebut the statutory presumption of debt.

What did the court decide?

The criminal revision petition was dismissed, and the conviction and sentence from the lower courts were upheld.

Sri.M.a. Rajendra S/O Late M.S. Ananthappa Vs Sri.Narayan… — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 04^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL REVISION PETITION NO.100294/2019

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BETWEEN:

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SRI M.A.RAJENDRA S/O: LATE M.S.ANANTHAPPA AGE: 62 YEARS, OCC: ADVOCATE, R/O: NO.369, 8^TH CROSS, B.C.C. LAYOUT, (ADJACENT CHANDRA LAYOUT) VIJAYANAGAR, BENGALURU-560040.

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……PETITIONER (BY SRI.HANUMANTHAREDDY SAHUKAR, ADV.)

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AND:

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SRI. NARAYAN SOMAYYA KURDEKAR, S/O: LATE SOMAIAH KURDEKAR, AGE: 76 YEARS, OCC: BUSINESS, R/O: NO.35, MANJUNATH NAGAR, GOKUL ROAD, HUBBALLI, DIST: DHARWAD.

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…….RESPONDENT (BY SRI.ARAVIND D.KULKARNI, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF Cr.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF SENTENCE DATED 30.10.2019 IN CRL.A.NO.96/2018 PASSED BY THE V-ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI AND SET ASIDE THE JUDGMENT AND ORDER OF SENTENCE DATED 27.10.2018 IN C.C.NO.951/2016 PASSED BY THE JMFC I-COURT, HUBBALLI AND ACQUIT THE PETITIONER FOR THE OFFENCES P/US. 138 OF N.I.ACT, BY ALLOWING THE REVISION PETITION.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is preferred by accused aggrieved by the judgment of conviction and order of sentence passed by JMFC, I-Court, at Hubballi in C.C.No.951/2016 vide order dated 27.10.2018, convicting the accused for the offence punishable under Section 138 of Negotiable Instruments Act, (for short ‘N.I.Act’) and sentencing him to pay a fine of Rs.6,00,000/-(Rupees Six Lakhs Only) in default to undergo simple imprisonment for one year and fine amount to be paid as compensation to respondent which has been confirmed by the V Addl. District and Sessions Judge, Dharwad sitting at Hubballi in Criminal Appeal No.96/2018.

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Though this petition is listed for admission, with the consent of both parties, matter is taken up for final disposal.

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Brief facts leading to the filing of this petition is are under:

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It is the case of complainant that himself and accused are acquainted with each other since many years, as accused was in urgent need of money, he requested hand loan of Rs.3,00,000/from the complainant and promised to repay the same immediately. Thereafter, accused issued post dated cheque dated 11.06.2007 in favour of complainant. On presentation of the said cheque by the complainant to his banker the same came to be dishonored for the reason “Insufficient Funds”. Complainant got issued a legal notice to accused on 07.07.2007 through Registered Post. Despite the notice being served on accused on 10.07.2007, no payment was made towards the dishonored cheque and neither accused replied to the said notice. Thereafter, a complaint came to be registered against accused for the offence punishable under Section 138 of N.I.Act. On cognizance being taken, accused was summoned before the Court and his plea was recorded where accused pleaded not guilty and claimed to be tried.

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In order to prove the guilt of accused, complainant got himself examined as PW.1 and got marked Ex.P1 to P8 and also got confronted documents on his behalf namely Ex.D1 to D5. Thereafter, statement of accused under Section 313 of Code of Criminal Procedure was recorded wherein accused denied all the incriminating evidence and circumstances against him but did not chose to lead any evidence on his behalf.

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After considering the entire material evidence both documentary and oral, the trial Court came to the conclusion that accused has committed the offence punishable under Section 138 of N.I.Act and that accused was unable to place any probable evidence to rebut the presumption in favour of complainant. Therefore, trial Court held accused to be guilty and convicted him for the aforesaid offence and imposed a sentence to pay a fine of Rs.6,00,000/- and in default to undergo simple imprisonment for one year.

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Aggrieved by the said judgment and conviction, accused preferred an appeal before the V Addl. District and Sessions Judge, Dharwad sitting at Hubballi in Criminal Appeal No.96/2018. On re-appreciation and re-evaluation of evidence and materials on record, the Appellate Court came to the conclusion that accused being a responsible Legal Practitioner could not have been negligent to the extent of issuing two cheques in favour of complainant in the guise of donation, after completion of construction of temple and came to the conclusion that there is no illegality or perversity in the judgment of the trial Court which rightfully convicted the accused for the aforesaid offence and did not find any reason to interfere with the said judgment and dismissed the appeal confirming the judgment of conviction of trial Court.

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Heard Sri Hanumanthareddy Sahukar, learned counsel for the petitioner and Sri Aravind D.Kulkarni, learned counsel for respondent.

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It is contended by the learned counsel for the petitioner-accused that the judgment of conviction and affirmation of the same by both the Courts are contrary to materials evidence on record and hence the same deserves to be set aside. He further contends that the complainant has not produced any material before the Court to show the existence of legally subsisting recoverable debt and complainant has also not produced any material to show before the Court that he had the capacity and source of income to pay hand loan of sum of Rs.3,00,000/- to accused. Learned counsel further contends that the complainant has not proved the existence of legally recoverable debt and in the absence of same the conviction of accused by both the Courts is illegal, arbitrary and hence the same deserves to be set aside and reversed. It is also contended by the learned counsel for accused that complainant has not produced is Income Tax returns to show that he had a sum of

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Rs.3,00,000/- with him and that he had given the same as loan to accused.

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It is further contended by the learned counsel for the accused that the material produced namely Ex.P7 is of the year 2004, whereas the case of complainant is that the loan was given in the year 2007. Hence, there is no explanation with regard to the source of income or availability of funds to make payment as alleged in the year 2007 to accused. It is further contended that complainant has made contradictory statement as he claims to have given the loan from the year 2007 i.e. on 11.06.2007 and the cheque Ex.P1 issued by accused is said to have been a post dated cheque but the date of giving loan and date on the cheque is one and the same i.e. 11.06.2007 as per the evidence adduced by complainant. Learned counsel for accused further contends that compliance of requirement of Section 138 of N.I.Act, is incomplete as the notice has not been

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served to the accused in accordance with Section 138(b) of N.I.Act.

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Therefore, non-issuance of notice is fatal to the case of complainant. Hence, on this ground the complaint ought to have been rejected and accused should have been acquitted. It is further contended by the learned counsel for accused that the trial Court and the Appellate Court have committed an error in not appreciating the service of notice, which is a mandatory requirement under Section 138 of N.I.Act. So also learned counsel contends that there has not been a clear averment with regard to the date of issuance of loan by the complainant to accused either in the legal notice or in the complaint and no document to that effect has been produced before the Court. Therefore, complainant has not made out any case to attract provision of Section 138 of N.I.Act. Non consideration of these facts has caused miscarriage of justice to accused petitioner herein. On this ground, he seeks to allow the revision

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petition and consequently set aside the orders passed by both the Courts.

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Per contra, learned counsel for the complainant contends that the judgment of conviction and the affirmation of the same by Appellate Court, is in accordance with the materials on record and based on the evidence adduced by parties. Therefore, there is no illegality in the impugned orders passed by both the Courts. Learned counsel further contends that the necessary ingredients contemplated under Section 138 of N.I.Act, has been complied and accused has admitted the issuance of cheque, the signature on cheque except for denying the receipt of loan amount from complainant. Learned counsel further contends that accused has not been able to rebut the presumption in favour of complainant by producing any material or by eliciting worthwhile evidence in the crossexamination of PW.1. Therefore, having admitted the cheque, the signature on cheque and not

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having produced any material to the contrary to disprove the case of complainant, the judgment of conviction passed by the trial Court and affirmed by the Appellate Court is perfectly in order and the same does not call any interference by this Court.

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Learned counsel further contends that the contention of accused with regard to the non service of legal notice is a frivolous plea taken at this stage, whereas the accused has described himself as residing in the same address as shown in the appeal filed by him before the Appellate Court, the cause title reads accused to be residing at No.369, 8^th Cross, B.C.C. Layout (Adjacent Chandra Layout) Vijayanagar, Bengaluru-560040, the very same address is mentioned even in this petition preferred by accused to be his address.

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On perusal of legal notice Ex.P.4, legal notice has been addressed to this very same address i.e., No.369, 8^th Cross, B.C.C. Layout (Adjacent Chandra Layout) Vijayanagar, Bengaluru-560040. Therefore, he contends that there is no foul play

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by complainant in issuance of notice to correct address of accused. Learned counsel further contends that the accused has not made out any ground to show any illegality or perversity committed by both the Courts in passing the impugned Judgments. Therefore, the Judgment of conviction passed by both the Courts does not call for any interference by this Court and the same is in accordance with law. On these grounds, he seeks to dismiss the petition and affirm the Judgments of both the Courts.

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Having heard the learned counsel for petitioner/ accused and learned counsel for respondent/ complainant, the points that arise for consideration before this Court are,

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(i) Whether there has been any illegality or perversity in the impugned Judgments passed by both the Courts.

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(ii) Whether any interference is called for by this Court.

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It is not in dispute that complainant and accused were well known to each other and it is also not in dispute that accused is a practicing lawyer who was representing the complainant in Court matters. It is not disputed by accused with regard to issuance of cheque in favour of complainant. However, he disputes that same was issued towards a loan transaction and claims to have issued the same for donation for construction of a temple. In the present case, legal notice has been addressed by complainant to accused as per Ex.P.4 to the address of accused which has been disputed by accused stating that he does not reside in the said address and there is a discrepancies in the address mentioned by complainant therefore, the legal notice has not been served. Hence, the necessary ingredient contemplated under Section 138 of N.I.Act has not been complied. This fact of the matter has been appreciated by trial Court as well as the appellate Court and held against the accused. Learned counsel for petitioner/accused has vehemently

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argued before this Court that there is no service of notice. This Court has once again verified whether notice has been issued to the address of accused in accordance with law. It is seen that though accused claims to be residing in 6^th cross, No.369, B.C.C. Layout (Adjacent Chandra Layout) Vijayanagar, Bengaluru-560 040. In the appeal filed by accused he has mentioned his address as residing in No.369 8^th Cross, B.C.C. Layout (Adjacent Chandra Layout), Vijayanagar, Bengaluru-560 040. This very same address is mentioned even in this petition by accused therefore, it cannot be said by accused at this stage that he was not residing in the address mentioned in the cause title of criminal appeal as well as this petition and the address mentioned in the legal notice and the complaint filed by complainant. Therefore, contention of accused that legal notice was not served on him, does not hold water and the same is not sustainable.

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The 2^nd point of the argument of learned counsel that complainant has not proved his case by producing material to show that he had capacity to make payment and necessary source of income would also not be sustainable in view of the fact that accused has admitted the issuance of cheque and signature on the cheque and hence the presumption as contemplated under Section 139 of N.I.Act comes in favour of the complainant. Section 139 of the N.I.Act, reads as under :

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“ Presumption in favour of holder .- It

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shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.”

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On bare reading of Section 139 of the N.I.Act, there is a presumption that a holder of the cheque has received the cheque towards discharge in whole or in part, of any debt or liability. No doubt, it is a presumption in law and the same is a rebuttable presumption. It is for

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accused to rebut such presumption by producing cogent material evident either through crossexamination or by documentary evidence to prove the contrary that there was no proof to the contrary in their favour existed any legally recoverable debt. In the present case on hand, worthwhile evidence has been elicited by accused and hence rightfully both the Courts have convicted the accused. It is also seen that since accused has been unable to rebut the presumption, the trial Court as well as the appellate Court have rightfully convicted the accused for the aforesaid offence. Therefore, accused has been unable to show any illegality or perversity committed by both the Courts in passing the impugned Judgments. Hence, I answer Point No.1 in the negative.

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Both the Courts have considered the material evidence and the documentary evidence produced and passed well reasoned Judgments, on the admissions made by accused. Therefore, I do not find any reason to interfere with the concurrent

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findings in the well reasoned Judgments of both the Courts. Hence, Point No.2 is answered in the negative. Since, no ground is made out by learned counsel for petitioner/ accused with regard to any illegality or perversity committed by both the Courts, I am of the opinion that the Judgment of conviction and order of sentence passed by trial Court and affirmed by appellate Court deserves to be confirmed. Accordingly, I pass the following order:

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ORDER

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Petition is dismissed.

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Judgment of conviction and order of sentence passed by trial Court and affirmed by appellate Court is upheld.

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Sd/-

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msr/ckk

Sri.M.a. Rajendra S/O Late M.S. Ananthappa v. Sri.Narayan Somayya Kurdekar

Case brief

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Sri.M.a. Rajendra S/O Late M.S. Ananthappa v. Sri.Narayan Somayya Kurdekar

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