Dismissed

Sri Maribasappa v. Sri P Balaraju

Karnataka HC4 Jan 2023CRL.RP/271/2013

Case brief

AI extract

What is this about?

High Court dismissed criminal revision petition challenging conviction for cheque bounce under Section 138 N.I. Act, upholding findings that blank cheque handed for security impliedly authorized filling, rejecting defenses of alteration or lack of debt.

What did the court decide?

Revision petition dismissed; order quashed portion of lower appellate order and confirmed conviction; fine amount confirmed.

Sri Maribasappa Vs Sri P Balaraju — Cheque Dishonour | Karnataka HC (2023)

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CRL.RP No. 271 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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CRIMINAL REVISION PETITION NO. 271 OF 2013

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BETWEEN:

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SRI. MARIBASAPPA S/O SIDDAPPA, AGED ABOUT 61 YEARS, R/AT NEAR GOVERNMENT HIGH SCHOOL, BUDIGERE VILLAGE AND POST, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT, PIN:411045.

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…PETITIONER

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(BY SRI. B. RAVINDRA PRASAD, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. P. BALARAJU S/O PUTTANNA, AGED ABOUT 63 YEARS, R/AT BUDIGERE VILLAGE AND POST, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT, PIN:411045 SINCE DEAD BY LRS

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1(a) SMT. JAYANTHI W/O LATE P. BALARAJU AGE: 58 YEARS

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1(b) SRI. DEEPU S/O LATE P. BALARAJU, AGE: 39 YEARS

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1(c) SRI. PRAVEEN, S/O LATE P.BALARAJU,

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CRL.RP No. 271 of 2013

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AGE: 37 YEARS

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ALL ARE R/AT: BUDIGERE VILLAGE AND POST, CHANNARAYANAPATNA HOBLI, DEVANAHALLI RURAL DISTRICT-562135.

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CAUSE TITLE AMENDED VIDE COURT ORDER DATED 04.01.2023

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…RESPONDENTS

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(BY SMT. ARCHANA K.M., AMICUS CURIAE)

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THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO EXAMINE THE LEGALITY AND PROPRIETY AND CORRECTNESS OF THAT PART OF THE ORDER OF THE APPELLATE COURT AND ON THE PERUSAL AND REVISING, SET ASIDE THAT PART OF THE ORDER DATED 13.07.2012 PASSED BY THE P.O., F.T.C., DEVANAHALLI IN CRL.A.NO.19.2012 BY SETTING ASIDE THE CONVICTION AND CONFIRMING THE FINE AMOUNT AND ETC.,

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

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ORDER

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The petitioner has called in question the judgment of conviction and sentence dated 02.02.2012 passed by the Civil Judge and JMFC, Devanahalli (henceforth referred to as 'Trial Court' for short) in C.C.No.735/2009 for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (henceforth referred to as 'N.I. Act' for short), which was upheld by the Fast Track Court, Devanahalli (henceforth referred to as 'Appellate Court' for short) in Crl.A.No.19/2012.

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CRL.RP No. 271 of 2013

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The petitioner was the accused in C.C.No.735/2009 before the Trial Court.

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The short facts that compelled the respondent herein (since deceased) to file a private complaint under Section 200 of Cr.P.C. before the Trial Court are that the respondent and the petitioner were known to each other and that at the request of the petitioner, the respondent advanced a hand loan of Rs.2,00,000/- and that towards repayment of the said amount, the petitioner had passed on a cheque. The said cheque was dishonoured due to insufficient funds, which prompted the respondent to issue a notice of demand. In response to the notice, the petitioner herein contended that the respondent was conducting two chits for Rs.1,25,000/- each and that the petitioner was one of the subscribers to the said chits. He claimed that he had drawn the chits and had passed on a cheque in question to the respondent towards security for repayment of the chit installments. He also contended that the respondent failed to pay the chit amount and later misused the cheque in question to launch a criminal prosecution. Therefore, the respondent initiated prosecution for the offence punishable under Section 138 of N.I. Act after issuing a notice.

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CRL.RP No. 271 of 2013

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The Trial Court after considering the oral and documentary evidence, convicted the petitioner for the offence punishable under Section 138 of N.I. Act. The same was upheld by the Appellate Court.

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Being aggrieved by the same, the petitioner has filed this revision petition.

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The learned counsel for the petitioner submitted that the evidence of PW.1 discloses that the respondent herein had filled up the cheque and therefore, it was obvious that the cheque was blank when it was handed over to the respondent by the petitioner. He therefore, submitted that the cheque was not duly drawn and therefore, it was not negotiable instrument as described under the N.I. Act. He further contended that the petitioner did not authorise the respondent to fill up the cheque and therefore, it should be considered that the respondent had altered the instrument and hence, it was unenforceable in view of Section 87 of the N.I. Act. He further contended that there was no proof regarding the financial ability of the respondent to pay a sum of Rs.2,00,000/- and the Trial Court and the

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CRL.RP No. 271 of 2013

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Appellate Court did not consider the same. He contended that the Appellate Court held that;

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"¸ÀzÀj ZÉPï DgÉÆÃ¦AiÀÄÄ ¥Áæ¸Á1 EªÀjAzÀ ¥ÀqÉzÀÄPÉÆAqÀ ¸Á®zÀ ¨sÀzÀævÉUÁV ¤ÃrzÀ ZÉPï DVgÀÄªÀÅ¢®è. DzÀgÉ ¤.¦.1gÀ ZÉPï£ÀÄß ¥Áæ¸Á1 zÀÄgÀÄ¥ÀAiÉÆÃUÀ¥Àr¹PÉÆAqÀÄ CzÀgÀ°è DgÉÆÃ¦AiÀÄ »vÁ¸ÀQÛUÉ «gÀÄzÀÞªÁV ºÀtªÀ£ÀÄß ¨sÀwð ªÀiÁrPÉÆAqÀÄ £ÀUÀ¢ÃPÀgÀtPÁÌV PÀ¼ÀÄ»¹ D ZÉPï CªÀiÁ£ÀåUÉÆAqÁUÀ £ÁåAiÀiÁ®AiÀÄzÀ°è SÁ¸ÀV zÀÆgÀ£ÀÄß zÁR°¹zÁÝgÉAzÀÄ £ÀA§®Ä EzÀÄ ¸ÀÆPÀÛ ¥ÀæPÀgÀtªÁV®èªÉAzÀÄ F £ÁåAiÀiÁ®AiÀÄ wÃªÀiÁð¤¹zÉ."

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He contended that even after holding so, the appeal was partly allowed upholding the judgment of conviction but reducing the sentence.

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During the pendency of this petition, the

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respondent died and his legal representatives were brought on record.

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Per contra, the learned Amicus Curiae for the respondent Nos.1(a) to 1(c) submitted that the petitioner had handed over a duly signed cheque to the respondent and therefore, had impliedly authorized the respondent to fill in the cheque. In this regard, she relied upon the judgment of the Hon'ble Apex Court in the case of M/s. Kalamani Tex and another vs. P. Balasubramanian [2021 (1) KCCR 545] as

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CRL.RP No. 271 of 2013

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well as the judgment of the Hon'ble Apex Court in the case of

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Bir Singh vs. Mukesh Kumar [(2019) 4 SCC 197] .

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I have considered the submissions made by the learned counsel for the petitioner as well as the learned Amicus Curiae for the respondent.

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The reply notice issued by the petitioner shows that the petitioner had subscribed for two chits for a sum of Rs.1,25,000/- each and that he had handed over the cheque in question to the respondent to be retained as security. He claimed that even after retaining the cheque, the respondent refused to part with the chit amount of Rs.2,50,000/- and thereafter, misused the cheque in question to launch a criminal prosecution.

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If the petitioner had subscribed for two chits of a sum of Rs.1,25,000/- each, the petitioner could obviously not be entitled to a sum of Rs.2,50,000/- being the full value of the chits. If the petitioner had handed over the cheque to the respondent to be retained as security at the time of the petitioner bidding for the chits, it is rather improbable to accept the contention of the petitioner that the chit amount was not

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CRL.RP No. 271 of 2013

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paid. The evidence of DW.2 and DW.3 indicates that the respondent used to collect cheques from the DW.2 and DW.3 for the purpose of giving away the chit amount and that after the DW.2 and DW.3 cleared the installments, the cheques were returned. Therefore, it is obvious that the cheque in question was handed over by the petitioner to the respondent towards satisfaction of certain claims of the respondent. In that sense, the cheque in question was issued towards satisfying a debt due to the respondent.

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The contention of the petitioner that the cheque was blank when it was handed over to the respondent is inconsequential since at that point in time, the petitioner was liable to pay certain amounts to the respondent and therefore, by handing over the blank cheque, the petitioner had indeed authorised the respondent to fill it up. The reliance placed by the petitioner on the judgment of the High Court of Andhra Pradesh in the case of Avon Organics Ltd., vs. Poineer Products Limited [LAWS (APH) - 2003 - 7- 143] is inapplicable in as much as DW.3 in his examination had admitted that the petitioner had bid the chit for a sum of Rs.25,300/-. Therefore, even if we take into consideration the

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CRL.RP No. 271 of 2013

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above evidence, two chits were bid at a sum of Rs.25,300/each and therefore, what was payable to the petitioner was Rs.1,99,400/-. The fact that the cheque in question was drawn for a sum of Rs.2,00,000/- makes it probable that the petitioner had consented to the respondent making entries in the cheque. In that view of the matter, the reliance placed by the petitioner on Section 87 of the N.I. Act to contend that the cheque in question was altered and therefore was not enforceable is liable to be rejected. Since there is no error apparent on the face of the record or there is no error in the appreciation of the evidence by the Trial Court, this Court does not consider it necessary to interfere with the findings recorded by both the Courts.

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Hence, this revision petition lacks merit and is dismissed .

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Any amount in deposit is ordered to be released to the legal representatives of the deceased - respondent.

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The Registry is directed to return the Trial Court records forthwith.

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CRL.RP No. 271 of 2013

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The assistance rendered by the Amicus Curiae is appreciated and the same is placed on record. The registry is directed to pay a sum of Rs.5,000/- (Rupees Five Thousand only) as honorarium to the Amicus Curiae.

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Sd/JUDGE

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PMR

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List No.: 1 Sl No.: 24

Sri Maribasappa v. Sri P Balaraju

Case brief

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Sri Maribasappa v. Sri P Balaraju

Case brief

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