Dismissed

Sri Yogendrappa a H. v. Sri. B.P Sugandha

Karnataka HC25 Sept 2021CRL.RP/144/2013

Case brief

AI extract

What is this about?

High Court Karnataka dismissed a criminal revision petition challenging conviction and sentence for cheque dishonour under Section 138 NI Act. Court held petitioner failed to rebut statutory presumption and upheld lower courts' orders while adjusting deposited amount.

What did the court decide?

Criminal Revision Petition dismissed; conviction and sentence upheld; Rs.20,000 deposited set off against fine.

Sri Yogendrappa a H. Vs Sri. B.P Sugandha — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF SEPTEMBER, 2021

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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.144 OF 2013

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BETWEEN :

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SRI YOGENDRAPPA.A H. S/O.GUDDAPPA H. AGED ABOUT 50 YEARS R/AT NO.GB-1, OTS HAL COLONY BENGALURU COMPLEX BENGALURU – 560 093 ... PETITIONER

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(BY SRI PRABHUGOUD B.TUMBIGI FOR SRI M.T.NANAIAH, ADVOCATES)

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AND :

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SRI B.P.SUGANDHA S/O.B.M.PONNAPPA AGED ABOUT 58 YEARS R/AT NO.2, KAVERI NILAYA S.M.ROAD, JALAHALLI CROSS BENGALURU – 560 057 ... RESPONDENT

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(BY SRI B.S.PRASAD, ADVOCATE)

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THIS CRL.R.P IS FILED UNDER SECTIONS 397 AND 401 OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT DATED 23.01.2013 PASSED BY THE P.O., F.T.C.NO.VIII, BENGALURU CITY IN CRL.A NO.76/2012 & TO SET ASIDE THE JT. DT. 11.01.2012 PASSED BY THE XIII A.C.M.M., BENGALURU IN C.C.NO.9822/2008 & ETC.

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THIS CRIMINAL REVISION PETITION COMING ON FOR 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 preferred by the petitioner-accused, aggrieved by the judgment of conviction and order of sentence passed by XIII Additional Chief Metropolitan Magistrate, Bengaluru in CC.No.9822/2008 dated 11.01.2012 convicting the petitioner-accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) and sentencing the petitioneraccused to pay fine of Rs.65,000/-, out of the said fine amount Rs.60,000/- to be paid to the complainant as compensation and balance amount of Rs.5,000/- to be remitted as fine to the State. In default of the above payment, the petitioner-accused to undergo simple imprisonment for a period of one year, which has been confirmed by the Fast Track Court No.8, Bengaluru City in Crl.A.No.76/2012 vide order dated 23.01.2013.

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BRIEF FACTS LEADING TO FILING OF THIS PETITION ARE AS UNDER:

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It is the case of complainant that petitioneraccused is his friend and in the month of October, 2007, the petitioner-accused had approached and requested for hand loan of Rs.60,000/- in view of there being certain commitments and requirements, with a promise to repay the said amount within four months. When the complainant demanded the petitioner-accused to repay the aforestated amount after the stipulated period, the petitioner-accused went on postponing the repayment of the amount on one pretext or the other. In view of the persistent demand made by the complainant, finally the petitioner-accused issued a cheque for Rs.60,000/bearing No.859479 dated 23.01.2008 drawn on City Bank, NA, Bengaluru with an assurance that the said cheque would be realised on presentation. The complainant presented the said cheque for encashment and to his shock and surprise, the said cheque came to be dishonoured with an endorsement “account closed” on 25.01.2008.

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2.1 The complainant intimated the dishonour of

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cheque to the petitioner-accused by issuing a legal notice dated 02.02.2008 through RPAD as well as UCP. Notices were served to the petitioner-accused who did not bother to make payment of dishonoured cheque nor did he issue any reply to the said legal notice. Hence, the complainant presented the instant complaint to recover the dishonoured cheque amount and for imposition of punishment to accused.

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On cognizance being taken, the petitioner-

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accused was summoned and enlarged on bail. Plea was recorded, wherein the petitioner-accused pleaded not guilty and claimed to be tried. Accordingly, he was tried.

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In order to prove the guilt of the petitioneraccused, the complainant adduced evidence and examined himself as PW.1 and got marked Exs.P1 to P9. Thereafter, the statement of the petitioner-accused was recorded under Section 313 of Cr.PC, wherein the petitioner-accused denied all the incriminating evidence against him. The petitioner-accused did not adduce any

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evidence nor did he produce any documents on his behalf.

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After going through the material evidence both oral and documentary, the trial Court has come to the conclusion that complainant proved his case by establishing necessary ingredients of Section 138 of N.I. Act and accordingly, convicted the petitioner-accused for the offence punishable under Section 138 of N.I.Act.

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Aggrieved by the judgment of conviction, the petitioner-accused preferred an appeal in Crl.A.No.76/2012 before the Fast Track Court at Bengaluru. On re-appreciation of evidence and re-evaluation of materials on record, the Appellate Court came to the conclusion that the complainant proved the guilt of the petitioner-accused and the petitioneraccused has failed to rebut the presumption cast in favour of complainant and accordingly, dismissed the appeal and confirmed the judgment of conviction and order of sentence passed by the trial Court. Aggrieved by the same, the petitioner-accused is before this Court

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challenging the correctness, legality and propriety of the judgments of both the Court.

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I have heard Sri Prabhugoud B.Tumbigi, learned counsel appearing on behalf of Sri M.T.Nanaiah for the petitioner-accused and Sri B.S.Prasad, learned counsel for the respondent.

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CONTENTIONS OF LEARNED COUNSEL FOR PETITIONER-ACCUSED:

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It is contended by the learned counsel for

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petitioner-accused that the judgment of conviction and order of sentence of the trial Court and confirmation of the same by the Appellate Court is erroneous in law as the same is contrary to the material evidence and the documents produced by the parties.

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8.1 Learned counsel further contends that the complainant has not proved the existence of legally recoverable debt and in the absence of any proof of existing legally recoverable debt, the complaint is not maintainable and the order of conviction deserves to be set aside. He further contends that the Courts below have erred in not considering the financial capacity and

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status of the complainant to pay a sum of Rs.60,000/to the petitioner-accused.

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8.2 Learned counsel further contends that the complainant is a partner of Kaveri Finance, who had taken three signed blank cheques as security as the petitioner-accused had borrowed a loan from said Kaveri Finance, which was repaid and closed, but the complainant did not return the said signed blank cheques and misused the same to make illegal fast money. He further contends that the complainant has no locus to file this case against the petitioner-accused as there is no liability of the petitioner-accused to pay any amount much less the cheque amount mentioned herein. He further contends that there is no privity of contract between the petitioner-accused and the complainant.

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8.3 Learned counsel further contends that during the course of trial, sufficient opportunity was not provided to the petitioner-accused to cross-examine the witness and also to adduce his evidence, thereby the trial Court has acted in haste and has pronounced the

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judgment in a hurry by convicting the petitioneraccused. He further contends that the complainant has gone to the extent of denying that he was the partner of Kaveri Finance whereas in the cross-examination, the complainant has admitted that he was one of the partners of Kaveri Finance as such this contradiction and contrary statements of the complainant would prove the fact that the complainant is not stating the truth before the Court. He further contends that the complainant had in all collected three cheques as one of the Directors of Kaveri Finance after having utilised two cheques towards the repayment of loan amount which

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was obtained from Kaveri Finance, the third cheque has been misused by the complainant by presenting it in his own individual name rather than returning it to the petitioner-accused.

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8.4 Learned counsel further contends that the petitioner-accused has deposited a sum of Rs.20,000/at the time of suspension of sentence by way of Demand Draft dated 01.03.2013. He further contends that the above stated material facts which are placed

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before the Court have been ignored by both the Court thereby causing miscarriage of justice to the petitioneraccused. Accordingly, for these reasons the orders of both the Court deserves to be set aside and the petition requires to be allowed. On the basis of these submissions, learned counsel for the petitioner-accused seeks to allow the petition.

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CONTENTIONS OF LEARNED COUNSEL FOR RESPONDENT:

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Per contra, learned counsel for the respondent has vehemently contended that judgment of conviction passed by trial Court and confirmed by appellate Court are in accordance with material evidence both oral and documentary and same does not require any interference by this Court.

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9.1 Learned counsel further contends that the dishonoured cheque was issued by the petitioneraccused as he had taken personal loan from the complainant. He further contends that the cheque has not been disputed, the signature on the cheque is also not in dispute. However, the petitioner-accused has

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made a valiant attempt to make out a frivolous concocted story of the cheque having been given to Kaveri Finance, which is not substantiated with any evidentiary value and hence, the same cannot be accepted and both the Courts have rightfully rejected such a frivolous theory. He further contends that both the Courts have passed considered and reasoned order, which does not call for interference. On the basis of these submissions, learned counsel for complainant seeks to dismiss this petition and to confirm judgment of conviction and order of sentence passed by the trial Court and confirmation of same by the Appellate Court.

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Having heard learned counsel for the petitioner-accused and learned counsel for respondent, points that would arise for consideration before this Court are:

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“i) Whether petitioner-accused has made out any ground to show that there is illegality or perversity in the orders passed by both the Courts?

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ii) What order?”

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11. On a careful examination of materials placed

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on record, it is seen that accused and complainant were acquainted with each other and a sum of Rs.60,000/was taken by the petitioner-accused for his personal commitment and requirement and for repayment of same, a cheque came to be issued and it is not in dispute that cheque belongs to the petitioner-accused and signature on cheque is also not denied by the petitioner-accused. It is also seen that transaction between parties is also not denied by the petitioneraccused though it is the case of the petitioner-accused that the cheque in dispute was given to the complainant as a Director of Kaveri Finance and not in the individual capacity. Nevertheless when the petitioner-accused has admitted issuance of cheque and has not denied his signature merely by stating that cheque has not been issued for any legal debt and that it was not given to the complainant in his individual capacity would not benefit the petitioner-accused to prove the case to the contrary as established by complainant. More so, when the petitioner-accused has not placed any material and

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neither has he entered the witness box to adduce evidence and prove the theory put-forth by him. It is essential to note here Section 138 of N.I. Act:

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“138. Dishonour of cheque for insufficiency, etc., of funds in the accounts.− Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

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PROVIDED that nothing contained

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in this section shall apply unless—

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(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

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(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

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(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

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Explanation: For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.”

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On fulfillment of necessary ingredients required under the proviso to Section 138 of N.I. Act, the cause of action for filing complaint and offence is technically made out. On filing complaint, Section 139 of N.I. Act comes into play which would show a presumption in favour of complainant. Section 139 of N.I. Act reads as under:

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“139. Presumption in favour of holder.− It 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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It is also necessary to see that under Section 118 of N.I. Act, once a cheque has been drawn, indorsed, accepted by accused, there is a presumption that it is drawn for a consideration. Therefore, when these presumptions are ingrained in the statute, it is for

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accused to prove and rebut to the contrary and establish that there was no such transaction. Though Section 139 of N.I. Act is a presumption in law, it is a rebuttable presumption.

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It is only when accused rebuts presumption by means of cogent evidence either oral or documentary, onus would shift on complainant to satisfy such rebuttal of accused. In the present case on hand though valiant effort has been made by accused to say that complainant did not have necessary source of income and capacity to pay loan amount, nothing worthwhile has been elicited in cross-examination of PW.1 or by leading any evidence or placing any material before Court to prove to the contrary the case made out by complainant. Merely by making statement that cheque was not at all issued to the complainant in his individual capacity nor for any legal debt, same would not prove as rebuttal to the case established by complainant. To prove such rebuttal, the petitioneraccused will have to do something more than mere denial and mere suggestions. There has to be cogent

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material evidence to disprove case of complainant to shift burden of proof to complainant.

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On examination of materials placed before this Court, it is seen that the petitioner-accused has not been able to rebut presumption as contemplated under Section 139 of N.I. Act. Nothing has been shown or produced by the petitioner-accused to disbelieve statement of complainant and documents Exs.P1 to P9. Therefore, these facts have been carefully examined by the trial Court and after affording a fair and sufficient opportunity to the petitioner-accused, the trial Court has found the petitioner-accused guilty of aforesaid offence. The same has been re-evaluated and re-examined by the Appellate Court and has upheld judgment of conviction and order of sentence passed by the trial Court.

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The scope of revision under Sections 397 and 401 of Cr.PC is limited to the extent of examining the correctness, legality or propriety of any finding, sentence or order. It is not for this Court to re-evaluate and re-analyse the entire evidence on record as this

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Court is not sitting in the arm chair of an Appellate Court to consider the entire matter afresh. However, having perused the materials placed before the Court and the reasoning and finding of the Courts below, I do not find any material irregularity or perversity in the orders passed by both the Court.

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There is no ground made out by the petitioner-accused to interfere with very well reasoned, considered judgment of conviction and order of sentence passed by the trial Court and confirmation of the same by the Appellate Court. The petitioner-accused has not made out any ground before this Court to show perversity or illegality having been committed by both Court. Therefore point No.1 is answered in negative.

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During the course of arguments before this Court, it is submitted by learned counsel for the petitioner-accused that an amount of Rs.20,000/- has been paid before this Court during the stage of admission and suspension of sentence.

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Having considered the materials and

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submissions placed on record, I pass the following order:

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ORDER

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(i) Criminal Revision Petition is

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dismissed;

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(ii) Judgment of conviction and order of sentence passed by the trial Court and the Appellate Courts are upheld;

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(iii) However, an amount of Rs.20,000/-

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deposited before this Court by the petitioner-accused shall be set off

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against the fine amount.

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JUDGE

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Sri Yogendrappa a H. v. Sri. B.P Sugandha

Case brief

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Sri Yogendrappa a H. v. Sri. B.P Sugandha

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