Dismissed

Smt Anusuyadevi v. Sri Jagadeesh P K

Karnataka HC5 Mar 2021CRL.RP/118/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal revision petition filed by a conviction petitioner challenging the sentence for cheque dishonour under Section 138 NI Act. The court held that the accused failed to rebut the statutory presumption due to non-production of claimed evidence regarding partial repayment.

What did the court decide?

Criminal Revision Petition No.118 of 2015 dismissed; conviction and sentence recorded in impugned order confirmed.

Smt Anusuyadevi Vs Sri Jagadeesh P K — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G.UMA

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CRIMINAL REVISION PETITION NO.118 OF 2015

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BETWEEN:

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SMT.ANUSUYADEVI WIFE OF PAVADEGOWDA AGED ABOUT 46 YEARS RESIDING AT NO.48, 26^TH MAIN ROAD 1^ST CROSS, JAIMARUTHINAGAR NANDINI LAYOUT BENGALURU-560 096.

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... PETITIONER

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(BY SRI:AKRAM PASHA K., ADVOCATE(ABSENT))

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AND:

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SRI.JAGADEESH P.K. SON OF KOLLAPPA GOWDA AGED ABOUT 43 YEARS RESIDING AT NO.28/355 11^TH MAIN ROAD, 4^TH BLOCK NANDINI LAYOUT BENGALURU-560 096.

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...RESPONDENT

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(BY SRI:M.N.MADHUSUDHAN, ADVOCATE (VC))

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 05/07/2013 PASSED IN C.C.NO.9322/2011 BY THE HON’BLE XIII-ACMM COURT, AT BENGALURU, AND IN CRIMINAL APPEAL NO.352 OF 2013, DATED 28/11/2014,

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PASSED BY THE HON’BLE PRESIDING OFFICER (FTC-VI) AT BENGALURU.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS COMING ON FOR 'PRONOUNCEMENT OF ORDERS’ TODAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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The revision petitioner is before this Court being aggrieved by the impugned judgment of conviction and order of sentence dated 05/07/2013 passed in C.C.No.9322 of 2011 on the file of XIII Additional Chief Metropolitan Magistrate, Bengaluru (for short ‘the Trial Court’), convicting her for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’) and sentencing her to pay a fine of Rs.1,57,000/- and in default to pay fine, to undergo simple imprisonment for six months, which was confirmed in Criminal Appeal No.352 of 2013 on the file of City Fast Track (Sessions) Judge, Bengaluru City (for short ‘the Appellate Court’) by dismissing the appeal.

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Brief facts of the case are that, the respondent herein as complainant filed the private complaint in PCR No.48588 of 2010 against the revision petitioner alleging commission of offence punishable under Section 138 of NI Act. It is contended by the complainant that he was well acquainted with the accused and both of them were friends. During first week of July 2010, the accused approached the complainant seeking financial assistance to an extent of Rs.1,52,000/- for the purpose of meeting her business needs. Accused assured to repay the said amount within three months. Accordingly, the complainant lent an amount of Rs.1,52,000/- to the accused on 05/07/2010 and the accused on the same day issued the post dated cheque bearing No.203897 dated 16/11/2010 drawn on Janatha Co-operative Bank Limited for Rs.1,52,000/- towards repayment of the hand loan. That on 16/11/2010, the cheque was presented for encashment by the complainant with his banker. But the cheque was dishonored as there was insufficient funds in the account of the accused. Legal notice was issued to the accused

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informing her regarding dishonour of the cheque and also calling upon her to repay the cheque amount. The legal notice was served on the accused, but she had neither replied nor complied with the demands made therein. Thereby, the accused committed the offence punishable under Section 138 of the NI Act. The complainant requested the Trial Court to take cognizance of the offence and to initiate legal action. Accordingly, the Trial Court took cognizance of the offence and registered C.C.No.9322 of 2011 against the accused.

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The accused pleaded not guilty for the said offence and claimed to be tried. The complainant examined himself as PW1 and got marked Exs.P1 to P8 in support of his contention. The accused has denied all the incriminating materials available on record in her statement recorded under Section 313 of Cr.P.C. and examined herself as DW1.

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The Trial Court after taking into consideration all these materials on record came to the conclusion that the complainant is successful in proving the guilt of the accused beyond reasonable doubt for the offence punishable under Section 138 of NI Act and accordingly, convicted and sentenced her as stated above.

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Being aggrieved by the impugned judgment of conviction and order of sentence passed by the Trial Court, the accused preferred Criminal Appeal No.352 of 2013 before the Appellate Court, but the same is came to be dismissed confirming the impugned judgment of conviction and order of sentence. Being aggrieved by the same, the accused is before this Court in revision.

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Heard Sri.M.N.Madhusudhan, learned counsel for the respondent. Neither the revision petitioner nor her advocate appeared before this Court in spite of providing sufficient opportunity. Perused the material including the Trial Court records.

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It is the contention of the complainant that the

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accused has borrowed hand loan of Rs.1,52,000/- on 05/07/2010 and the accused has issued post dated cheque bearing No.203897 dated 16/11/2010 for Rs.1,52,000/towards repayment of the hand loan. The cheque in question was dishonored when presented for encashment as there was insufficient funds in the account of the accused. The cheque amount was not repaid by the accused, in spite of issuance of legal notice. Therefore, the accused is guilty for the offence punishable under Section 138 of the NI Act.

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To prove this contention, the complainant has

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stepped into the witness box and deposed as PW1 reiterating his contention taken in the complaint. During cross examination by the learned counsel for the accused, witness stated that he is running the real estate business since 7-8 years and he is having cash with him and therefore, paid Rs.1,52,000/- through cash to the accused. The accused was running a tea shop in Maruti Nagar and

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he was acquaintance with the accused. Witness denied the suggestion that a sum of Rs.1,00,000/- was lent in favour of the accused about three years back subject to payment of interest at 7%. Complainant also denied the suggestion that the accused had paid Rs.7,000/- per month towards principal and interest. It is suggested that a sum of Rs.75,000/- is already repaid by the accused and that the complainant has taken blank cheque from the accused with her signature. It is also suggested that Ex.P1 cheque was issued by the accused as security for the loan. All these suggestions were denied by the witness. Witness stated that the legal notice was received by the daughter of the accused and denied the suggestion that legal notice was never served on her.

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Ex.P1 is the cheque bearing No.203897 dated 16/11/2010 for Rs.1,52,000/- drawn on Janatha Cooperative Bank Ltd., Bengaluru singed by the accused. Exs.P2 and P3 are the cheque return memo dated 18/11/2010 issued by the collecting banker. Ex.P4 is the

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legal notice got issued by the complainant calling upon the accused to repay the cheque amount. Ex.P5 is the postal receipt and Ex.P6 is the certificate of posting. Ex.P7 is the postal acknowledgment with the signature of one Smt.P.Geetha, for having received the notice.

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Accused got examined herself as DW1 and stated that about three years back, she had availed a sum of Rs.1,00,000/- from the complainant and at that time, she has issued a cheque and a stamp paper with her signatures. She had repaid an amount of Rs.75,000/including interest at the rate of 7% per annum. She denied that she had obtained loan of Rs.1,52,000/-. However, stated that she had issued the said cheque with her signature to the complainant while obtaining the loan of Rs.1,00,000/-. During cross examination, witness admitted that she is running a tea shop and she is well acquainted with the complainant. She admitted that Ex.P1 - cheque was issued by her, but denied the suggestion that she had availed loan of Rs.1,52,000/-. Witness stated that

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she has not produced the note book which she has maintained to evidence repayment of Rs.75,000/-. Witness stated that the signature found on Ex.P7 is that of her daughter Geeta.

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From these materials, it is clear that the accused never disputed issuance of cheque - Ex.P1 in favour of the complainant in discharge of loan obtained by her. When the accused admits issuance of cheque with her signature, the presumption under Sections 118 and 139 of the NI Act will operate and it is for the accused to rebut those presumptions by probabalising her defence.

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In the present case, the accused has taken a specific defence that she had borrowed loan of Rs.1,00,000/- only and repaid Rs.75,000/- including the interest. According to the accused, she is having a note book to evidence these facts. But strangely, the said note book is not produced before the Court. It is also not in dispute that the accused received the legal notice and that the signature found on the postal acknowledgement –

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Ex.P7 is admittedly is that of the daughter of the accused. It is also admitted that the accused has not replied to the said legal notice. Under such circumstances, it cannot be said that the accused has raised or probabalised her defence to seek her acquittal.

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I may refer to the recent decision of the Hon’ble Apex Court in the case of M/s Kalamani Tex and another Vs P.Balasubramanian [2021 SCC Online SC

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75], wherein the Hon’ble Apex Court specifically held that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards repayment would attract presumption under Section 139 of NI Act in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. Therefore, I am of the opinion that the accused has not rebutted the presumption and the complainant is successful in proving the guilt of the accused beyond reasonable doubt.

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I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court

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and the Appellate Court. Both the Courts have appreciated the material on record in proper perspective in convicting the accused. Hence, I do not find any infirmity or perversity in the order passed by the Trial Court and also confirmed by the Appellate Court.

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Hence, the Criminal Revision Petition is

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dismissed.

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Sd/JUDGE

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*bgn/-

Smt Anusuyadevi v. Sri Jagadeesh P K

Case brief

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Smt Anusuyadevi v. Sri Jagadeesh P K

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