Dismissed

Sri Gangadhar K.S. v. Smt. D.K Rukmini

Karnataka HC9 Feb 2023CRL.RP/272/2014

Case brief

AI extract

What is this about?

High Court Bench dismissed this Criminal Revision under CrPC 397/401, upholding conviction and fine under Section 138 NI Act. Bench held mere claim of denied signature without bank records or plausible evidence fails to rebut statutory presumption under Section 139 NI Act.

What did the court decide?

Revision petition dismissed; conviction and fine under Section 138 NI Act are upheld.

Sri Gangadhar K.S. Vs Smt. D.K Rukmini — Execution and Attachment | Karnataka HC (2023)

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CRL.RP No. 272 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CRIMINAL REVISION PETITION NO. 272 OF 2014

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BETWEEN:

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SRI. GANGADHAR K.S., S/O SRI. SHIVANNA B.N., AGED ABOUT 27 YEARS, R/A NO.1/181, BYCHANALLI, 1^ST BLOCK, KUSHALNAGAR, SOMWARPET TQ., KODAGU DISTRICT-571 234.

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…PETITIONER

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(BY SRI. BHAGAT VENKATESH R., ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SMT. D.K. RUKMINI, W/O KRISHNASHETTY, AGED 63 YEARS, HOUSE WIFE AND BUSINESS, BYCHANALLI, 1ST BLOCK, KUSHALNAGAR, SOMWARPET TALUK, KODAGU DISTRICT-571 234.

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(NOTICE IS SERVED ON RESPONDENT)

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…RESPONDENT

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THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED: 10.01.2014 PASSED BY THE SESSIONS JUDGE, KODAGU, MADIKERI IN CRL.A.NO.29/13 CONFIRMING THE JUDGMENT AND ORDER DATED: 04.04.2012 PASSED BY THE JMFC, SOMWARPET, ITINERATE COURT, KUSHALNAGAR IN C.C.NO.415/2009 - CONVICTING PETITION FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND SENTENCING HIM TO PAY A FINE OF RS.1,70,000/- IN DEFAULT TO UNDERGO S.I. FOR A PERIOD OF THREE MONTHS AND THE PETITIONER MAY BE SET AT LIBERTY.

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CRL.RP No. 272 of 2014

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THIS CRL.RP COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is filed challenging the judgment of conviction dated 04.04.2013 passed by the Additional Civil Judge and JMFC, Somwarpet, Itinerate Court, Kushalnagar (hereinafter referred to as 'Trial Court' for short) in C.C.No.415/2009, by which, the petitioner was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act, 1881' for short) and was sentenced to pay a fine of Rs.1,70,000/-. The petitioner has also challenged the judgment dated 10.01.2014 passed by the Sessions Judge, Kodagu at Madikeri in Crl.A.No.29/2013, by which, the judgment of the trial Court was upheld.

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The parties shall henceforth be referred to as they were arraigned before the trial Court. The petitioner was the accused, while the respondent was the complainant.

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The photocopies of the trial Court records furnished by the learned counsel for the accused discloses that the complainant had advanced a hand loan of Rs.1,50,000/- to the

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3 - CRL.RP No. 272 of 2014

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accused to enable him to purchase an auto rickshaw. The accused is stated to have handed over a cheque for a sum of Rs.1,50,000/towards repayment of the said amount. However, the said cheque was dishonoured due to insufficient funds in the account of the accused. A notice of demand was caused by the complainant which was served upon the accused, who however did not reply or repay the amount payable under the cheque. Consequently, the complainant initiated prosecution of the accused for the offence punishable under Section 138 of NI Act, 1881. The trial Court recorded presummons to evidence of the complainant and registered C.C.No.415/2009 and issued process to the accused. The accused appeared and was released on bail. He pleaded not guilty and claimed to be tried. The complainant was examined as PW.1 and he marked Exs.P1 to P6. The statement of the accused was recorded under Section 313 of Cr.P.C. and he stated "£Á£ÀÄ ¦gÁå¢¬ÄAzÀ 45,000/- gÀÆ ªÀiÁvÀæ ¸Á® ¥ÀqÉzÀÄzÀÄÝ CzÀPÉÌ wAUÀ½UÉ 10% £ÀAvÉ 8 jAzÀ 10 wAUÀ¼ÀÄ §rØ ¤ÃrgÀÄvÉÛÃ£É. D 45,000/- gÀÆUÀ½UÉ ZÉPÀÌ£ÀÄß ¤ÃrzÉÝÃ£É". He was later examined as DW.1 and he marked Exs.D1

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to D3 in support of his defence. The trial Court considered the statement of the accused in his statement under Section 313 of

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CRL.RP No. 272 of 2014

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Cr.P.C. and held that the accused had admitted the issuance of the cheque. It held that the denial of the signatures on the cheque in question by the accused was an after thought in view of the statement under Section 313 of Cr.P.C. and hence, convicted him for the said offence and sentenced him to pay fine of Rs.1,70,000/-.

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Being aggrieved by the said judgment, the accused filed Crl.A.No.29/2013. The Appellate Court noticed that the complainant had filed O.S.No.109/2008 against the father of the accused for recovery of money. However, it held that the cheque in question had nothing to do with the suit filed in O.S.No.109/2008. It also held that the accused did not deny the fact that the cheque in question was drawn from an account held by him and no suggestion was put to the complainant to that effect during the course of cross-examination. During the course of cross-examination, though it was suggested that the writings in the cheque in question was not by the accused, the same was denied. The Appellate Court compared the signatures found on the cheque in question with the signatures of the accused on the deposition sheet as well as on the plea and on the statement under Section 313 of Cr.P.C. and found that all

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CRL.RP No. 272 of 2014

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the signatures were similar. It also held that the accused failed to respond to the notice issued by the complainant and therefore, held that the complainant had established that the cheque in question was drawn towards discharge of a lawful debt and hence, dismissed the appeal.

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Being aggrieved by the same, the present revision

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petition is filed by the accused.

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Learned counsel for the accused submitted that the trial Court convicted the accused based on the statement of the accused under Section 313 of Cr.P.C. He submitted that the statement of the accused under Section 313 of Cr.P.C. is not substantive evidence, in view of the law declared by the Hon'ble Supreme Court in the case of RAJ KUMAR SINGH ALIAS RAJU ALIAS BATYA VS. STTE OF RAJASTHAN reported in AIR 2013 SC 3150 . He submitted that the accused had denied the signature on the cheque in question and no effort was made by the complainant to establish the genuinity of the signature found thereon. He also submitted that the accused specifically denied his liability to the complainant and therefore, he had rebutted the presumption

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CRL.RP No. 272 of 2014

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under Section 139 of the NI Act, 1881. Further he contends that the complainant had admittedly filed a suit for recovery against the father of the accused and the accused in O.S.No.109/2008 as per Ex.D1. He submitted that the said suit was filed on 05.11.2008 and therefore, the possibility of the accused drawing the cheque in question in favour of the complainant did not arise.

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The complainant though served with the notice in this revision petition has remained absent.

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The complainant had launched prosecution of the accused for the offence punishable under Section 138 of NI Act on the premise that the cheque drawn by the accused towards discharge of a sum of Rs.1,50,000/- raised by him from the complainant for the purpose of purchasing an auto rickshaw was dishonoured. The complainant had fulfilled all the requirements to initiate prosecution of the accused for an offence punishable under Section 138 of the NI Act, 1881. Though a notice of demand was issued to the accused, he did not respond to the notice and did not deny his liability. Be that as it may, the complainant stood the test of cross-examination

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CRL.RP No. 272 of 2014

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and claimed that the cheque in question was drawn by the accused towards discharge of a debt. In an attempt to rebut the presumption under Section 139 of NI Act, 1881, the accused after stating in his statement under Section 313 of Cr.P.C. that he had raised a loan of Rs.45,000/- from the complainant and had drawn a cheque towards repayment of the same, resiled from his statement and claimed that the cheque was not drawn by him and that he was not liable to pay the complainant. However, what needs to be seen is that the accused did not deny the fact that the cheque in question was drawn from an account held by him, though he claimed that the signature found thereon was not affixed by him. If that be so, the accused was bound to take steps to establish his defence and rebut the presumption under section 118 & 139 of NI Act, 1881. The accused by merely claiming that the signature found on the cheque in question was not affixed by him cannot rebut the presumption under Section 139 of the NI Act, 1881. It is now well settled that the statutory presumption under NI Act can be rebutted only by a probable and a plausible defence and not a moonshine defence. The accused was expected to secure or summon the documents from the bank or an official from the

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8 - CRL.RP No. 272 of 2014

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bank to depose about the cheque in question. In the face of the statement made by the accused under Section 313 of Cr.P.C., the evidence led by the accused does not instil confidence but is clearly an after thought. Since the accused had admitted the issuance of the cheque in question, the trial Court and the Appellate Court were justified in convicting the accused for the offence punishable under Section 138 of NI Act, 1881. Yet another fact that needs to be considered is when the accused himself claimed in his statement under Section 313 of Cr.P.C. that he had raised a loan of Rs.45,000/- from the complainant, no material was placed before the Court establish that he had repaid the said sum of Rs.45,000/- along with interest as agreed. In the judgment of the Hon'ble Supreme Court in the case of RAJ KUMAR SINGH (Supra) relied upon by the learned counsel for the accused, the offences punishable under Sections 302, 376 and 202 of IPC, while an offence punishable under Section 138 of NI Act, 1881 is a civil wrong with overtones of an offence punishable with fine or imprisonment. The further reliance placed by the learned counsel for the accused on the judgment of Hon'ble Supreme Court in the case of SUMETI VIJ VS. M/S. PARAMOUNT TECH FAB

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CRL.RP No. 272 of 2014

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INDUSTRIES reported in AIR 2021 SC 1281 also does not assist the accused since in the present case, the accused not only recorded the statement under Section 313 of Cr.P.C. but also entered the witness box and did not take any steps to rebut the presumption under Section 139 of NI Act, 1881.

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In that view of the matter, the trial Court and the

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Appellate Court were justified in convicting the accused for the offence punishable under Section 138 of NI Act, 1881. Hence,

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this revision petition lacks merit and the same is dismissed .

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Sd/JUDGE

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NR/-

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List No.: 1 Sl No.: 30

Sri Gangadhar K.S. v. Smt. D.K Rukmini

Case brief

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Sri Gangadhar K.S. v. Smt. D.K Rukmini

Case brief

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