High Court dismissed revision petition challenging Section 138 NI Act conviction. Court held accused failed to rebut presumption, affirming lower courts appreciated evidence correctly and no illegality existed in findings.
Revision petition dismissed; no interference with conviction and sentence under the Negotiable Instruments Act.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2021
BEFORE:
THE HON’BLE MR. JUSTICE P.N.DESAI
CRIMINAL REVISION PETITION No.940 OF 2015
BETWEEN:
MR.SUSHIR KUMAR, S/O LATE R.D. SUVARNA, AGED ABOUT 61 YEARS, 201, MADHUVAN APARTMENTS, ARYA SAMAJ ROAD, BALMATTA, MANGALURU-575 001.
... PETITIONER
(BY SRI: K.SHASHIKANTH PRASAD., ADVOCATE)
AND:
MR.B. JINENDRA, S/O A. JARAPPA, AGED ABOUT 52 YEARS, BHARATH NIVAS, BEHIND LEO FURNITURE, KARANGALPADY, MANGALURU-575 003. …RESPONDENT (BY SRI: MALLIKARJUN., ADVOCATE FOR SRI.CYRIL PRASAD PAIS., ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 AND 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 25.07.2015 PASSED BY THE III ADDL. DIST. AND SESSIONS JUDGE., DAKSHINA KANNADA., MANGALURU IN CRL.A.NO.349/2013 AND THE JUDGMENT DATED 30.09.2013 PASSED BY THE J.M.F.C.-V, MANGALURU IN C.C.NO.1464/2010
AND THEREBY REVISION PETITIONER/ACCUSED WAS ACQUITTED FROM THE OFFENCE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.
THIS CRIMINAL REVISION PETITION IS COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This revision petition is filed by the petitioner challenging the legality and correctness of the judgment dated 25.07.2015 passed in Crl.A.No.349/2013 by the III Addl. District & Sessions Judge, Dakshina Kannada, Mangaluru, wherein the judgment passed by V JMFC, Mangaluru in C.C.No.1464/2010 dated 30.09.2019 came to be confirmed and appeal came to be dismissed.
The revision petitioner was the accused before the tribunal. Respondent was the complainant. Respondent filed a complaint before the V JMFC, Mangaluru, Dakshina Kannada contending that the accused is his friend working in Karnataka Rajya Kaigarika Sahakara Bank Niyamitha
and the said Bank is situated by the side of his shop. It is further contended that in the month of November 2008, the revision petitioner/accused requested the complainant for financial help to the tune of Rs.5,50,000/- for purchase of an immovable property. Accordingly, the complainant withdrew the amount of Rs.5,50,000/- from the bank and paid the said amount to the accused on 25.11.2008. It is also contended that though he was ready to pay the amount through cheque, accused insisted him to pay the same in cash and on the same day, accused gave a cheque bearing No.003801 dated 25.11.2008 for Rs.5,50,000/drawn on Karnataka Rajya Kaigarika Sahakara Bank Niyamita, Balmata Branch, Mangaluru and requested the complainant to present the same in the month of March 2009. Accordingly, the respondent/complainant presented the said cheque to the Bank, but it was returned with an endorsement 'funds insufficient' on the account of the accused. Thereafter, the complainant issued legal notice to the accused, for which, the revision petitioner replied. He contended that he has taken only Rs.50,000/- and he has
paid Rs.5,000/- as interest from the month of August 2008 to February 2009 and he has repaid entire amount of Rs.50,000/- thereafterwards. Therefore, the complainant lodged a complaint under section 138 of Negotiable Instruments Act, 1881 (shortly hereinafter referred to N.I. Act).
revision petitioner preferred Crl.A.No.349/2013 before the III Addl. District & Sessions Judge, Dakshina Kannada, Mangaluru, wherein the Sessions Court by judgment dated 25.07.2015 dismissed the appeal and confirmed the judgment of conviction and order of sentence passed by the tribunal which is now under challenge in this revision petition.
and PW-1 has also admitted that he has not shown the said payment of cheque in his income-tax returns. Learned counsel further argued that both the courts have not appreciated the evidence and the cheque was not given as security. There is no legally enforceable debt or liability. No offence is committed. Hence, prayed to set-aside the judgment of both the courts and acquit the accused.
"Whether the judgment passed by the Sessions Court in Crl.A.No.349/2013 is illegal, perverse and not based on sound principles
regarding appreciation of evidence and needs interference by this Court?"
well as first appellate court and also records of the tribunal and the evidence.
Respondent/complainant has also stated that since his office was situated by the side of the bank where the accused revision petitioner is working, he used to meet and he has got acquaintance with him. He has also stated that the accused was demanding him money for purchase of immovable property since 2007 and he has paid amount to the accused on 08.03.2008. Of-course, he has stated
that he has paid amount on 08.03.2008. That alone is not a ground to reject the testimony of the complainant, because he has lodged the complaint, issued legal notice, withdrawn the amount from his account and accused has issued cheque for that amount. Of-course, the complainant has stated that he has not shown the payment of said money in his income-tax returns, but that is not a ground to disbelieve his evidence. The suggestion and the defence by the accused that he has taken only Rs.50,000/- and for that, he has issued cheque is denied. The complainant has also produced cheque which is dated 25.11.2008 for Rs.5,50,000/- and it is marked as Ex-P1. Both issuance of cheque and signature are admitted by the revision petitioner. Ex-P2 bank endorsement by MCC Bank Ltd., Kulshekar, Mangaluru, which shows that cheque was returned, dishonoured with endorsement 'funds insufficient'. Ex-P3 is the legal notice issued by the complainant wherein he has called upon the accused to pay the amount. Ex-P4 is postal acknowledgement. Ex-P5 is the reply given by the revision petitioner, wherein he
has taken defence that he has borrowed only Rs.50,000/on 25.07.2008 and issued blank cheque and he has repaid entire amount with interest on 16.03.2009. Though it was requested, cheque was not returned by the complainant and it was misused. The complainant has also produced his Savings account passbook bearing No.830 of The Mangalore Catholic Co-operative Bank Ltd., Mangalore, wherein, it is shown that in the month of November 2008, Rs.5,50,000/- was withdrawn.
shows that, he is not speaking truth. Further in his crossexamination, he has admitted that Ex-P1 cheque belonged to his bank. He has signed that cheque, but he has not intimated or informed the manager of the bank not to make any payment or not to honour the cheque, though there was opportunity for him to say so. If at all he has not issued said cheque and not borrowed the said amount, he could have intimated the bank. That itself indicates that the accused/revision petitioner has borrowed the loan and in discharge of the said debt, he has issued Ex-P1. He has not produced any document in support of his defence. The tribunal on oral and documentary evidence convicted the accused.
given the amount in the month of March 2008 is not of much consequence. The appellate court has also dismissed the appeal.
his cross-examination clearly indicates that he was having knowledge of cheque being presented to the bank. Same was informed by his manager, even then, he did not object. Neither any application nor intimation was given to the bank not to honour the said cheque. He kept quiet. This conduct of the revision petitioner itself shows that he has issued cheque for borrowing the said amount, otherwise, he could not have kept quiet, when the said cheque came to his bank where he was working. Inspite of bringing to his notice by his Bank Manager, he has not taken any action. On the other hand, his defence that he has borrowed only Rs.50,000/- and paid interest on that entire amount has no basis at all. Absolutely, there is no iota of legally admissible evidence placed before the Court to accept any such defence. Therefore, the revision petitioner-accused has failed to prove or show that the case of the complainant is not probable one. On the other hand, both oral and documentary evidence placed by the complainant clearly probablise and supports the case of the complainant. Neither there is anything in the cross-
examination nor anything in the defence so as to disbelieve the contention of the complainant. The revision petitioner has failed to rebut the statutory presumption arising under section 139 of N.I.Act.
time may be given to the revision petitioner to make payment of remaining amount. Therefore, keeping in mind the period of pendency, three months' time is given to the revision petitioner/accused to pay the remaining amount to the respondent from the date of receipt of certified copy of the judgment, if the same is applied, immediately after passing of this order.
Accordingly, I pass the following:
ORDER
Sd/JUDGE
*mn/-
3 issues framed by the court
Whether the judgment of conviction by lower courts in a Section 138 NI Act case is illegal and perverse requiring interference by the High Court?
Whether the accused successfully rebutted the statutory presumption under Section 139 NI Act regarding the issuance of the cheque for discharge of liability?
Whether the High Court should have acquitted the accused despite the established facts of cheque issuance and non-repayment?
2 provisions across 1 enactments
MR.SUSHIR KUMAR
MR.B. JINENDRA
P.N.DESAI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
