Dismissed

Sathish Shetty K v. Self Growth Nidhi Ltd.

Karnataka HC23 Aug 2023CRL.RP/260/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal revision petition challenging convictions under Section 138 of the Negotiable Instruments Act. The court held the conviction sane as the accused failed to rebut the statutory presumption of legal debt due to lack of defense evidence.

What did the court decide?

The revision petition was dismissed, upholding the conviction and sentence of the courts below.

Sathish Shetty K Vs Self Growth Nidhi Ltd. — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:30208 CRL.RP No. 260 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL REVISION PETITION NO. 260 OF 2016

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BETWEEN:

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SATHISH SHETTY .K S/O SHEENA SHETTY, AGED ABOUT 51 YEARS, R/O SOMANATHA TEMPLE, GOOD SHED, MANGALURU-575 001.

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…PETITIONER (BY SMT. POOJA KATTIMANI, ADVOCATE FOR SRI. RAVINDRA RAVINDRA .B DESHPANDE, ADVOCATE)

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AND:

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Digitally signed by RENUKAMBA K G

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Location: High Court of Karnataka

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SELF GROWTH NIDHI LTD. NON BANKING FINANCE COMPANY, ESTABLIHED UNDER COMPANIES ACT 1956, REGISTERED OFFICE AT 2^ND FLOOR, VIJAYASHREE CHAMBERS, NEAR KARANGALPADY MARKET, MANGALURU-575 003, REPRESENTED BY THE MANAGER/PA HOLDER, MR.VARADARAJ GADIYAR

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(BY SRI. ANANDA, ADVOCATE)

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…RESPONDENT

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THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 02.12.2015 PASSED BY THE IV ADDL. DIST. AND S.J., D.K., MANGALORE IN CRL.A.NO.283/2014 AND THE ORDER DATED 31.10.2014 PASSED BY THE V ADDL. CIVIL JUDGE AND JMFC, MANGALORE, D.K., IN C.C.NO.797/2014 AND ACQUIT THE PETR. OF CHARGES LEVELED AGAINST HIM.

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NC: 2023:KHC:30208 CRL.RP No. 260 of 2016

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THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is filed under Section 397 and 401 of Cr.P.C. challenging the judgment of conviction and order of sentence passed by V Additional Civil Judge and JMFC, Mangalore in CC.No.797/2014 and confirmed by IV Additional Sessions Judge, Mangalore in Crl.A.No.283/2014 vide judgment dated 02.12.2015.

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For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case are that the complainant is non-banking financial company established under Companies Act and is represented by Power of Attorney holder-Manager. It is asserted that the accused is the member of the Society and has availed a loan of Rs.1,00,000/- in the month of July-2012 for the purpose of his business with an assurance of repaying the same within one year. The accused has made only part

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3 - NC: 2023:KHC:30208 CRL.RP No. 260 of 2016

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payment and thereafter, he failed to settle the entire due. The complainant has issued notice on 13.03.2013 calling upon him to settle the balance due of Rs.66,731/- and then accused approached the complainant and in order to discharge the liability, he has issued cheque dated 16.04.2013 drawn on HDFC Bank, Hampankatta, Mangalore for Rs.67,100/-. When the said cheque was presented it was dishonoured for insufficient of funds. Thereafter, the complainant has issued a legal notice to the accused calling upon for payment of the Cheque amount and the notice was returned as “unclaimed”. Hence, complainant has lodged a complaint before the learned Magistrate through authorized officer.

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Thereafter, the learned Magistrate has taken cognizance and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. He has also denied the accusation made against him. The officer of the complainant was examined as PW1 and complainant has also placed reliance on 17

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4 - NC: 2023:KHC:30208 CRL.RP No. 260 of 2016

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documents marked at Ex.P1 to Ex.P17. After conclusion of the evidence of the complainant, the statement of accused under Section 313 Cr.P.C. was recorded to enable him to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial. However, accused has not lead any oral or documentary evidence in support of his defense.

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After having heard the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of the N.I. Act by imposing fine of Rs.77,100/- with a default clause. Being aggrieved by this judgment of conviction and order of sentence, the accused has filed an appeal before IV Additional Sessions Judge, Mangalore in

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Crl.A.No.283/2014.

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The learned Sessions Judge after

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re-appreciating the oral and documentary evidence, dismissed the appeal by confirming the judgment of

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5 - NC: 2023:KHC:30208 CRL.RP No. 260 of 2016

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conviction and order of sentence passed by the trial Court. Being aggrieved by these concurrent findings, accused is before this court.

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Heard the arguments advanced by the learned counsel for revision petitioner. The learned counsel for respondent is absent. Perused the records.

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The learned counsel for the revision petitioner would contend that both the Courts below have committed an error in convicting the accused for the offence punishable under Section 138 of the N.I. Act. It is asserted that the complainant has failed to prove that the cheque amount is a legally enforceable debt and the disputed that cheque was issued towards enforcement of legal debt. Hence, he would contend that the said aspect is not appreciated and hence, sought for allowing the revision by setting aside the impugned judgments of both the Courts below.

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6 - NC: 2023:KHC:30208 CRL.RP No. 260 of 2016

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Having heard the arguments and perusing the

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records, now the following point would arise for my consideration:

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“Whether the Judgment of conviction and order of sentence passed by the trial Court and affirmed by the lower appellate Court is perverse and arbitrary so as to call for any interference by this Court?”

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It is the specific contention of the complainant

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that the accused has availed a loan of Rs.1,00,000/- and in discharge of the said debt, the disputed cheque under Ex.P12 was issued for Rs.67,100/-.

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The accused has not raised any specific or probable defense except formal denial. His 313 statement also clearly disclose that it is a total formal denial, but he did not put forward his defence. Admittedly, accused has not disputed his signature on the cheque and further he has not disputed that cheque belongs to him. In view of the same, the initial presumption under Section 139 of the N.I. Act is in favour of the complainant. It is for the

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7 - NC: 2023:KHC:30208 CRL.RP No. 260 of 2016

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accused to rebut the said presumption, but accused has

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not lead any evidence to substantiate his defense.

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Apart from that, the documents produced at Ex.P3 disclose that the sanction letter was also issued towards sanctioning the loan and Ex.P6 is a demand promissory note while Ex.P7 is the receipt for having received the amount. Ex.P8 is the legal notice and Exs.P9 & P10 are postal acknowledgment. These documents were not denied or disputed and Ex.P17 is the authorization letter issued to PW2. The oral and documentary evidence clearly disclose that the disputed cheque was issued under Ex.P12, which is towards legally enforceable debt i.e., the balance amount. No illegality or infirmity is found with the judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court

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Looking to these facts and circumstances no grounds are forthcoming for interference of the impugned judgments of both the Courts below. As such, the point under consideration is answered in the negative. Hence,

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NC: 2023:KHC:30208 CRL.RP No. 260 of 2016

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revision petition being devoid of merits, does not survive for consideration and accordingly, this revision stands

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dismissed .

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Sd/JUDGE

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DS List No.: 1 Sl No.: 22

Sathish Shetty K v. Self Growth Nidhi Ltd.

Case brief

What is this about?

What did the court decide?

Sathish Shetty K v. Self Growth Nidhi Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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