A criminal revision petition filed by a cheque drawer convicted under Section 138 of the Negotiable Instruments Act. The Court found that the essential ingredients of the offence were fulfilled and the accused failed to rebut the presumption under Section 139, dismissing the petition.
The Criminal Revision Petition is dismissed as devoid of merits.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY 2021 BEFORE
THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.187 OF 2012
BETWEEN:
Shri. Mudlappa, S/o.Late Giriyanna, Aged about 63 years, Residing at C/o.Gopala Reddy, 3rd Cross, Near Anjaneya Temple, Doddabanasawadi, Bangalore-560 053. .. Petitioner
( By Sri B.J.Mahesh, Advocate for Eesh & Eesh Associates )
AND:
Smt.Vinutha T, D/o M.K.Thimmegowda, Residing at - No.Q-7, New No.5/1, 5th Cross, 1st Main Road, Maruthi Extension, Srirampuram, Bangalore-560 021. .. Respondent
This Criminal Revision Petition is filed under Sections 397 r/w. Section 401 Cr.P.C. praying to call for the records in Appeal No.417/2011, on the file of the Fast Track Court-2,
2
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Bangalore and C.C.No.28343/2005, on the file of the 12th Addl.Chief Metropolitan Magistrate, Bangalore, and to set aside the judgment dated 28.12.2011, passed by the Fast Track Court-II, Bangalore in Criminal Appeal No.417/2011 and consequently set aside the judgment of conviction dated 18.5.2011, passed by the 12th Addl.Chief Metropolitan Magistrate, Bangalore, in C.C.No.28343/2005.
This Criminal Revision Petition is coming on for Final Hearding, through Physical Hearing/Video Conferencing Hearing coming on for orders this day, the Court made the following:
ORDER
The present petitioner was accused in
C.C.No.28343/2005, in the Court of the learned XII Addl.Chief Metropolitan Magistrate, at Bengaluru City, (hereinafter for brevity referred to as trial Court'). By its judgment dated 18.05.2011, the trial Court convicted the accused for the offence punishable under 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as N.I.Act') and was sentenced accordingly.
Aggrieved by the same, the accused preferred a Criminal Appeal in the Court of City Fast Track (Sessions) Judge, Bengaluru City, FTC-II, (hereinafter for brevity referred to as the `Sessions Judge’s Court') in Criminal Appeal No.417/2011.
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by its order dated 28.12.2011, dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the trial Court dated 18.05.2011, in C.C.No.28343/2005.
Aggrieved by the said judgment, the accused has preferred this revision petition.
1 lakh in order to meet his family necessities. To discharge the liability, the accused executed an on demand Promissory Note and consideration receipt and also issued a cheque bearing No.670033, dated 8.7.2005, for a sum of 1 lakh, drawn on Canara Bank, SSB, Sanjayanagar Branch, Bengaluru, in favour of the complainant. The accused had promised to repay the loan amount within six months. When the complainant presented the said cheque on 8.7.2005 for realisation through her Banker, the same came to be dishonoured with the Banker’s endorsement `funds insufficient’. Thereafter, the complainant got issued a statutory notice upon the accused demanding the cheque amount, however, the accused failed to meet the demand. ThisCrl.R.P.No.187/2012
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constrained the complainant to institute a criminal case against the accused in the trial Court under Section 200 of Code of Criminal Procedure, for the offence punishable under Section 138 of N.I.Act.
The trial Court after recording the evidence led before it and hearing both side, by its impugned judgment dated 18.05.2011, convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him to pay a fine of `1,10,000/-, in default, to undergo simple imprisonment for a period of one year. Challenging the said judgment of conviction passed by the trial Court, the accused preferred an appeal in Criminal Appeal No.417/2011, before the learned Sessions Judge’s Court, which, after hearing both side, by its impugned judgment dated 28.12.2011, dismissed the appeal
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filed by the accused, while confirming the impugned judgment of conviction and order on sentence passed by the trial Court. Being aggrieved by the judgments of conviction and order on sentence, the accused has preferred this revision petition.
counsel.
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Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court?
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much on earlier loan transaction for a sum of `50,000/-,
had pronounced the judgment of conviction.
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dishonor of the cheque, the complainant got issued a legal notice as per Ex.P-6 to the accused demanding the cheque amount from him. These facts have come out in the evidence of PW-1, which have not been specifically denied from the accused side. Therefore, under Section 139 of N.I.Act, a presumption forms in favour of the complainant. Thus, the main point of argument of learned counsel for the accused was that the said presumption formed in favour of the complainant has been successfully rebutted by the accused.
Both in the said reply, as well in his defence evidence, the accused has taken a contention that in February 2004, the accused had availed a hand loan of a sum of `50,000/- from the complainant agreeing to repay the same with interest thereupon. It was at that time, the complainant had collected a blank cheque from the
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accused as a security towards the repayment of the loan amount. She had also obtained some blank papers duly signed by the accused. The same was reiterated by DW-1 in his examination-in-chief also. However, in his crossexamination, he has stated that he has not lodged any complaint against the complainant for the alleged misuse
of the cheque said to have been given by him as a security. He also stated that he did not even sent any notice to her demanding return of the said cheque. Further, he has also not issued any stop-payment order to his Banker. He has also stated that he did not collect any acknowledgement or document from the complainant about he executing blank on demand Promissory Note and consideration receipt in favour of the complainant. He further admitted that DW-2 and DW-3, whom the accused examined as his witnesses, were not the witnesses in the said Promissory Note.
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and accordingly at the request of the accused and at the recommendation of her father (PW-2), the complainant lent the accused a sum of `1 lakh as hand loan.
In the cross-examination of PW-1, though attempts were made to shaken the veracity of the statement made by the witness in her examination-in-chief, but, the accused could not succeed in it. The denial suggestions made to the witness were not admitted as true by PW-1. Except making denial suggestions and eliciting some more details regarding the loan transaction, nothing could be elicited either in the cross-examination of PW-1 or in the cross-examination of PW-2 imbibing a doubt in the case of the complainant or introducing any element of suspicion in the contention of the complainant enabling the accused to rebut the presumption formed in favour of the complainant.
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non-returning of the said cheque. Admittedly, he has not taken any step in that regard and not even written any letter to her demanding return of the said cheque. At least, he could have issued a stop-payment direction to his Banker in order to avoid any possibility of misuse of the cheque, which also he has not done. Therefore, as an ordinary prudent person, what he was expected to do in such a circumstance of the case, the accused has not done. As such, his mere contention in the form of his defence that the cheque in question was issued by him as a security towards the alleged previous loan transaction would not suffice to hold that the presumption formed in favour of the complainant under Section 139 of N.I.Act has stood successfully rebutted.
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said Expert's opinion and taking the said Expert's opinion as a shield, learned counsel for the petitioner vehemently submitted that since the Promissory Note and Consideration Receipt are shown to have been typed by the same typewriter, it is highly doubtful whether the accused had executed the said Promissory Note and Consideration Receipt. Therefore, the issuance of the cheque for the same transaction also becomes doubtful. The said contention of the accused is not acceptable for the reason that :
(i) Admittedly, the complainant in the trial Court had filed her statement of objections to the said Expert's opinion, however, she was not granted any opportunity to crossexamine the said Expert.
(ii) There are no material or evidence to show that the accused had no access to the said typewriter in which Exs.P-4 and P-5 are said to have been typed.
(iii) The author of the notice at Ex.P-10 was also not examined to elicit from him that Exs.P-4 and P-5 were also typewritten in the same typewriter in which Ex.P-10 was typed and that as on the date of filling up of Exs.P-4 and P-5 in the
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typewritten manner, the author of the document at Ex.P-10 had an access to the said typewriter.
(iv) The examination report submitted by Forensic Science Laboratory no where gives any reason as to on what basis and after conducting which examinations or tests, it has arrived at such an opinion that all those three documents were generated from the same typewriter.
(v) It cannot be ignored of the fact that the present case is not based upon the documents at Exs.P-4 and P-5, but, it is a case of alleged offence punishable under Section 138 of N.I.Act, as such, the case is based upon dishonour of cheque at Ex.P-1, which admittedly was drawn by the accused in favour of the complainant.
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said to be the colleague of the accused and father of the complainant, by that itself, it cannot be taken that he should have been necessarily a witness to the Promissory Note and the consideration receipt.
Further the quantum of sentence as ordered by the trial Court and confirmed by the Sessions Judge's Court, is also proportionate to the gravity of the proven guilt. As such, I do not find any reason to hold the impugned judgments as perverse, illegal or erroneous warranting interference at the hands of this Court.
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ORDER
The Criminal Revision Petition is dismissed as devoid of merits.
Registry to transmit a copy of this order to both the trial Court as also the Sessions Judge’s Court along with their respective records without delay.
Sd/JUDGE
bk/
2 issues framed by the court
Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court?
Whether the accused successfully rebutted the presumption under Section 139 of the N.I.Act regarding the transaction validity.
2 provisions across 2 enactments
Shri. Mudlappa
Smt.Vinutha T
H.B.PRABHAKARA SASTRY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court