Partly allowed

Suresh Venkataraman Bhat v. Rajashekhara Gowda S/O Budappa Gowda

Karnataka HC15 Dec 2020CRL.RP/1307/2010

Case brief

AI extract

What is this about?

The High Court preferred a criminal revision petition to confirm conviction under Section 138 of the Negotiable Instruments Act, modifying a one-year sentence to a fine with a default imprisonment term, while upholding the validity of accepting affidavit evidence.

What did the court decide?

Conviction confirmed. Sentence of one year imprisonment modified to fine of Rs. 8 lakhs with 30 days default imprisonment.

Suresh Venkataraman Bhat Vs Rajashekhara Gowda S/O… — Cheque Dishonour | Karnataka HC (2020)

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Crl.R.P.No.1307/2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION NO.1307/2010

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BETWEEN :

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SURESH VENKATARAMAN BHAT AGED ABOUT 54 YEARS OCC: AGRICULTURIST OWNER OF MAHENDRA TRADERS, SIRSI R/O DODANAHALLI, TALUKA SIRSI UTTARA KANNADA DISTRICT … PETITIONER

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(BY SRI.P.B.UMESH, ADVOCATE FOR SRI.R.B.DESHPANDE, ADVOCATE)

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AND :

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RAJASHEKHARA GOWDA S/O BUDAPPA GOWDA, MAJOR R/O HOSABALE, CHANDRAGUTTI HOBLI SORABA TALUKA, DISTRICT SHIMOGA

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… RESPONDENT

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(BY SRI.ADITHYA KUMAR H.R. ADVOCATE FOR SRI.DAYANANDA S. PATIL, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 & 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 25.06.2010 PASSED BY THE ADDITIONAL SESSIONS JUDGE, SHIMOGA IN CRL. A. NO.122/2008 AND ORDER DATED 17.10.2008 PASSED BY THE CIVIL JUDGE (JR.DN.) AND JMFC, SORAB IN C.C. NO.905/2002 AND ACQUIT THE PETITIONER OF CHARGES LEVELED AGAINST HIM.

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Crl.R.P.No.1307/2010

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THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT THROUGH PHYSICAL HEARING MADE THE FOLLOWING:

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O R D E R

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Aggrieved by the order of conviction and

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sentence passed against him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 the accused has preferred the above revision petition.

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The petitioner was prosecuted in C.C.No.905/2002 on the file of the Civil Judge (Junior Division) and J.M.F.C., Sorab on the basis of the complaint filed by the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act.

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The respondent presented the Cheque – Ex.P1 dated 10.10.2001 for a sum of Rs.4,00,000/purportedly drawn by the petitioner on State Bank of Mysore, Sirsi Branch, Uttara Kannada for realization through his account in Canara Bank, Chandragutti

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Branch, Shimoga. The said Cheque was returned with banker’s memo as per Exs.P2 to P4 with the endorsement that ‘payment stopped by the drawer’.

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The respondent issued notice dated 07.02.2002 as per Ex.P5 to the petitioner alleging that having issued the Cheque towards discharge of his debt due to him, the petitioner has issued stop payment instructions to the banker to defraud him. Under the notice Ex.P5, the respondent called upon the petitioner to pay the Cheque amount within 15 days or else to face the prosecution. To the notice Ex.P5, the respondent issued reply as per Ex.P6 on 04.03.2002 denying his liability and issuance of the Cheque. He alleged that the Cheque and the related documents were concocted by the respondents to cheat the petitioner.

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Thereafter, the respondent filed complaint before the Trial Court to prosecute the petitioner for the offence punishable under Section 138 of the

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Negotiable Instruments Act. The learned Magistrate on taking cognizance, registered the case in C.C.No.905/2002, summoned the petitioner and tried him.

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In support of his case, the respondent got examined himself as PW.1 and got marked Exs.P1 to P7. The petitioner in support of his defence, examined himself as DW.1 by filing affidavit in lieu of chief-examination and got marked Exs.D1 to D11. The defence of the petitioner was that his junior uncle’s son one Nagapathi Narayanappa was looking after his business and he stole the Cheque book and handed over the Cheque – Ex.P1 to the respondent and some other Cheque to Krishna Chidambara Hegde and got filed false complaint against him. He further contended that in that regard he filed complaint against Nagapathi Narayanappa to prosecute him for forgery, cheating etc., and the matter was pending.

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Crl.R.P.No.1307/2010

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7. The trial Court on appreciation of the

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evidence, rejected the defence of the petitioner and held that having regard to Section 118 and 139 of the Negotiable Instruments Act, the respondent is entitled for presumption that the Cheque was issued for consideration and towards the discharge of liability and petitioner has failed to rebut the said presumption.

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Ultimately, the trial Court convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to simple imprisonment of one year. Further, the Trial Court awarded compensation of Rs.4,00,000/- to the respondent.

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The petitioner challenged the said order of conviction and sentence before the Additional Sessions Judge, Shimoga in Crl.A.No.122/2008. The learned Sessions Judge on hearing the parties by the

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impugned order dismissed the appeal and confirmed the order of conviction and sentence passed by the Trial Court.

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Reiterating the grounds of the revision petition Sri.P.B.Umesh, learned counsel for the petitioner seeks to assail the impugned judgment and order of conviction and sentence on the following grounds:

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(i) To draw the presumption under Sections 118 and 139 of the Negotiable Instruments Act, the respondent was expected to prove his lending capacity which was not done;

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(ii) The First Appellate Court did not re-appreciate the evidence; and

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(iii) The Trial Court committed jurisdictional error in not examining the accused under Section 313 of Cr.P.C., and receiving his evidence by way of affidavit.

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11. In support of his contentions, he relied on

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the following judgments:

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(i) M/s. Mandvi Co-op. Bank Ltd. v/s Nimesh B. Thakore¹

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(ii) Unreported judgment of this Court in Sri.P.Hanumanthappa v/s G.H. Chandru²

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Per contra, Sri. Adithya Kumar H.R., learned counsel for the respondent seeks to justify the impugned orders of the Courts below on the following grounds:

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(i) The petitioner admitted that the Cheque - Ex.P1 pertains to his account; and

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(ii) The petitioner did not assert in the cross-examination that the signature in Ex.P1 was not his signature and he did not seek the reference of Ex.P1 to the hand writing expert’s opinion to prove that signature is forged one.

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1 AIR 2010 SC 1402

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2 Crl.R.P.No.659/2011 D.D. 31.01.2014

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(iii) The respondent claimed that Nagapathi Narayanappa stole his Cheque book, forged his signatures and setup the respondent and others to file the cases under Section 138 of the Negotiable Instruments Act. Though he filed a complaint before the Magistrate to prosecute Nagapathi Narayana Hegde, that the complaint was dismissed for non-prosecution. Therefore, the said defence does not survive.

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(iv) The respondent in his evidence stated that he is agriculturist and having sufficient land for cultivation and that was not disputed in his cross-examination.

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(v) In reply notice, the petitioner did not take the defence of Nagapathi Narayana Hegde committing theft of the cheque book and misusing the same. Therefore, the trial Court

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and the First Appellate Court rightly rejected his defence.

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(vi) This Court in the revisional jurisdiction cannot interfere with the matter unless any perversity is shown.

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(vii) The petitioner himself filed his affidavit in lieu of chief-examination. Therefore, it is not open to him to claim that the said procedure

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was illegal.

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In support of his contentions, he relies

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upon the following judgments:

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(i) Indian Bank Assn. v. Union of India³

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(ii) Afzal Pasha vs. Mohamed Ameerjan⁴

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(iii) R.Vijayan v. Baby⁵

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(iv) Bir Singh v. Mukesh Kumar⁶

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Reg. lending capacity:

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The petitioner at the earliest point of time

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and in the trial Court did not specifically dispute the

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3 (2014) 5 SCC 590

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4 ILR 2016 Kar 4145

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5 (2012) 1 SCC 260

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6 (2019) 4 SCC 197

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lending capacity of the respondent. Neither in the cross examination of PW.1 nor in his own evidence he disputed the lending capacity of the respondent.

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The respondent in his cross examination stated that apart from 3 acres of horticultural land and wet land, he owns 8 acres of dry land and he cultivates pineapple, ginger and groundnuts. The fact that of respondent owning the horticultural and agricultural lands and cultivation of the same was not disputed in his cross examination.

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Taking into consideration the aforesaid aspects, the contentions of the petitioner regarding the lending capacity of the respondent is untenable. Therefore, this Court does not find any perversity in the finding of the Courts below about lending capacity of the respondent.

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Reg. issuance of cheque and liability:

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The petitioner did not dispute that cheque Ex.P1 pertains to his account. The respondent claimed that cheque - Ex.P1 was issued by the petitioner towards discharge of debt borrowed by him. In the reply notice petitioner only contended that the documents relied upon by the respondent in his notice were all concocted. He did not specifically contend that signature on the cheque was forged one.

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At later stage, petitioner took up the defence that his uncle’s son one Nagapathi Narayana Hegde was assisting him in his business and he was the custodian of the cheque books, account books etc. He further contended that the said Nagapathi Narayana Hegde took away all those records and facilitated the respondent to file a complaint. He claimed that in that regard, he was prosecuting the said Nagapathi Narayana Hegde by filing a complaint.

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In the reply Ex.P6 at the earliest point of time no such defence was taken with regard to the commission of fraud or Nagapathi Narayana Hegde taking away cheque books etc., It was not his case that while issuing stop payment instructions with regard to Ex.P1 the allegations of forgery or theft of the cheque book were made. The bank authorities were not examined to prove such claim.

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Petitioner relied on Ex.D.8 to contend that he informed the bank that his cheque book containing cheque leaves from 018350 to 018375 was stolen by somebody, therefore, if any cheque is tendered that shall not be honoured. Ex.D8 itself shows that it was tendered in the bank on 10.04.2002. But prior to that the petitioner issued reply Ex.P.6 on 04.03.2002. In Ex.P6, as already noticed, there was no allegation of theft of the cheque book.

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The cheque was not dishonoured for any variations in the signature. DW.1 in his cross examination did not assert that the signature on Ex.P1 was forged one. He only said he cannot say if that is forged one or genuine one. If at all there was any doubt about his signature, the best option was to seek reference of Ex.P1 to the opinion of the hand writing expert which he did not resort to for the reasons best known to him.

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Though the petitioner produced Ex.D3 and Ex.D4 the complaint in PCR No.12/2003 filed against Nagapathi Narayana Hegde and FIR in Cr.No.77/2003 of Sirasi NM Police Station which was registered on the order of reference passed by the Magistrate under Section 156 of Cr.P.C., he did not produce any document to show that any charge sheet was filed in the said case or the said Nagapathi Narayana Hegde was prosecuted. Considering such aspects, the trial Court and First Appellate Court

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rightly held that the defence of theft of cheque by Nagapathi Narayana Hegde and he setting up the respondent to file a complaint was not proved.

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Once it was held that the cheque pertains to the account of the petitioner and that was issued by him, the presumptions under Section 118 of NI Act to the effect that cheque was issued for consideration and the presumption under Section 139 of the NI Act that the cheque was issued for discharge of liability arise. The petitioner failed to rebut the said presumption by adducing cogent, consistent and acceptable evidence. Therefore, the Courts below were justified in holding that the cheque Ex.P1 was issued by petitioner towards discharge of his liability.

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Reg. acceptance of affidavit evidence of the

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petitioner:

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Learned counsel for the petitioner contended that the trial Court in accepting the

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evidence of the petitioner by affidavit acted contrary to Section 145 of NI Act and Section 315 of Cr.P.C. In support of his contention, he relied upon the judgment of the Hon’ble Supreme Court in M/s. Mandvi Co-op. Bank Ltd., and of this Court in Sri.P.Hanumanthappa’s case and Kerala High Court judgment in Geemol Joseph’s case .

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Before the trial Court petitioner himself submitted his evidence by way of affidavit. At that stage, he did not raise any such objections. He filed that affidavit voluntarily on 06.09.2007. By way of amendment to the NI Act, Section 145 was included by amending Act 55 of 2002 with effect from 06.02.2003. Section 145 of the NI Act was amended to enable the Court to receive the evidence of the complainant and witnesses by affidavit.

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It is no doubt true that in M/s. Mandvi Co-

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op. Bank Ltd.’s case the Hon’ble Supreme Court held that Section 145 of NI Act contemplates the receipt of

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evidence by affidavit only that of the complainant and the witnesses and that option does not extend to the accused. However, in later judgment in Indian Bank Association’s case referred to supra the Hon’ble Supreme Court while laying the guidelines for conducting trials in the cases involving the offence under Section 138 of NI Act in 23.5 of the guidelines held as follows:

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“23.5 The Court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses instead of examining them in the Court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the Court.”

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(Emphasis supplied)

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The Hon’ble Supreme Court in Srinath

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and another v/s Rajesh and others⁷ held that in interpreting any procedural law where more than one interpretation is possible, the one which curtails the

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7 AIR 1998 SC 1897

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procedure without eluding justice is to be adopted. It was further held that procedural law is always subservient and aids to justice and any interpretation which eludes or frustrates the recipient of justice is not to be followed.

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Relying on the judgment of Supreme Court in Srinath’s case referred to supra, this Court in Afzal Pasha’s case while considering the similar situation held that the receipt of the affidavit evidence of the accused was in accordance with Section 315 of Cr.P.C. The other judgments relied on by the learned counsel for the petitioner were rendered on the basis of the judgment in M/s. Mandvi Co-op. Bank Ltd.

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In light of the later judgment of the Supreme Court in Indian Bank Assn’s case and of this Court in Afzal Pasha’s case, this Court is not persuaded to accept the contentions of the learned counsel for the petitioner that the trial Court

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committed jurisdictional error in accepting the affidavit tendered by him in lieu of his evidence.

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The original proceedings were of the year

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The petitioner having submitted his evidence by way of affidavit voluntarily, now in this revision petition, for the first time after more than a decade is trying to claim that in accepting his affidavit, the trial Court has committed jurisdictional error. The said contention runs contrary to the judgment of the Supreme Court in Srinath’s case referred supra. For the aforesaid reasons this Court does not find any illegality, impropriety and incorrectness in the order of conviction.

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Reg. sentence:

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Learned counsel for the petitioner submits

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that presently the petitioner is about 64 years old, therefore, sentence of imprisonment operates harsher and seeks modification of the same.

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The trial Court has sentenced the petitioner to imprisonment of one year but has not imposed any fine. The cheque amount was Rs.4 lakhs. The compensation awarded is Rs.4 lakhs. The offence under Section 138 of NI Act is punishable with imprisonment upto 2 years or with fine extending to twice the amount of the cheque or both. The respondent has fought this litigation for about 18 years. In adjudication of this matter the state resources are also diverted. Therefore, non imposition of any fine was not just and appropriate.

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Having regard to the age of the petitioner the sentence of imprisonment can be modified to sentence of fine with default sentence. Therefore, the petition is partly allowed.

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The impugned order of conviction for the offence under Section 138 of NI Act is hereby confirmed.

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The order of sentence is modified as follows:

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The petitioner is sentenced to fine of Rs.8 lakhs. In default to pay fine, the petitioner shall undergo simple imprisonment of 30 days. Out of the fine amount sum of Rs.7,90,000/- shall be paid to the respondent as compensation and Rs.10,000/- shall be remitted to the State.

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Sd/JUDGE

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KG/KSR/NS

Suresh Venkataraman Bhat v. Rajashekhara Gowda S/O Budappa Gowda

Case brief

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Suresh Venkataraman Bhat v. Rajashekhara Gowda S/O Budappa Gowda

Case brief

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