Dismissed

Muddumadaiah v. B Jyothi

Karnataka HC4 Dec 2023CRL.RP/366/2019

Case brief

AI extract

What is this about?

High Court Bench dismissed Criminal Revision Petition challenging conviction under Section 138 NI Act. Court held accused failed to rebut presumption of consideration, upheld lower courts' findings despite animus plea.

What did the court decide?

Revision petition dismissed; judgment of conviction and sentence dated 09.10.2017 by II Addl. I Civil Judge, Mysuru and appellate judgment dated 06.02.2019 by V Addl. Sessions Judge, Mysuru confirmed.

Muddumadaiah Vs B Jyothi — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC:43731 CRL.RP No. 366 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE VENKATESH NAIK T CRIMINAL REVISION PETITION NO.366 OF 2019

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BETWEEN:

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MUDDUMADAIAH S/O. MALLAIAH AGED ABOUT 58 YEARS R/AT NO.6, 3RD CROSS K.R.VANAM, MYSORE-570 008.

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…PETITIONER

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(BY SRI M. SHARASS CHANDRA & SRI NAGARAJU H.R., ADVOCATES)

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AND:

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Digitally signed by VINUTHA M Location: HIGH COURT OF KARNATAKA

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B. JYOTHI W/O. RAJASHEKARAMURTHY AGED ABOUT 31 YEARS R/AT NO.2159, 2ND CROSS BASAVESWARA ROAD K.R. MOHALLA, MYSORE-570 008.

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…RESPONDENT

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(RESPONDENT SERVED AND UNREPRESENTED)

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THIS CRL.R.P. IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 06.02.2019 IN CRIMINAL APPEAL NO.229/2017 PASSED BY THE V ADDITIONAL SESSIONS JUDGE AT MYSORE CONFIRMING THE JUDGMENT AND ORDER DATED 09.10.2017 PASSED BY THE II ADDITIONAL I CIVIL JUDGE & JMFC., AT MYSORE IN C.C.NO.2810/2009 AND CONSEQUENTLY ACQUIT THE PETITIONER AND PASS SUCH OTHER ORDERS THAT THIS HON'BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.

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NC: 2023:KHC:43731 CRL.RP No. 366 of 2019

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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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Heard Sri.M.Sharass Chandra, learned counsel for the petitioner.

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The petitioner- accused has preferred this criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 praying to set aside the judgment of conviction and order of sentence dated 09.10.2017 passed by the II Additional I Civil & JMFC, Mysore in C.C.No.2810/2009 and judgment dated 06.02.2019 passed by the V Additional Sessions Judge, Mysuru in Crl.A.No.229/2017 wherein both the Courts passed concurrent findings in respect of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' for short).

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For the sake of convenience, the parties are

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referred to as per their ranking before the trial Court. The

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NC: 2023:KHC:43731 CRL.RP No. 366 of 2019

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petitioner is the accused and the respondent is the complainant before the trial Court.

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The brief facts of the complainant's case are as under:-

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The complainant filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the N.I. Act contending that the accused and complainant are known to each other, thus, accused borrowed a sum of Rs.90,000/- from the complainant and in consideration thereof, the accused issued a cheque bearing No.0573380 dated 29.01.2007, for a sum of Rs.90,000/drawn on State Bank of Mysore, Krishnamurthypuram, Mysuru, in favour of the complainant and the said cheque was presented for encashment on 01.02.2007, but it was returned with a shara 'insufficient funds', hence, on 19.02.2007, the complainant issued a legal notice calling upon the accused

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to pay the amount due under the cheque. Inspite of service of notice, the accused failed to pay the amount

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NC: 2023:KHC:43731 CRL.RP No. 366 of 2019

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due under the cheque, however, the accused issued evasive reply and denied the entire payment, on the contrary, the accused has taken a contention that he borrowed a sum of Rs.30,000/- and thereby, admitted issuance of cheque. Hence, complainant filed a private complaint under Section 200 of Cr.P.C., for the offence punishable under Section 138 of the N.I. Act.

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After institution of the complaint, the trial Court recorded the sworn statement of the complainant, took cognizance under Section 190(1)(a) of Cr.P.C., secured the presence of accused and recorded the plea of the accused; accused pleaded not guilty and claimed to be tried.

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The complainant in order to prove her case, examined herself as PW-1 and got marked the documents as per Exs.P1 to P8 and P8(a). In order to rebut the claim of the complainant, accused did not enter the witness box nor produced any documentary evidence.

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5 - NC: 2023:KHC:43731 CRL.RP No. 366 of 2019

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On the basis of the oral and documentary evidence, the trial Court convicted the accused for the offence punishable under Section 138 of the Act and sentenced him to pay a fine of Rs.1,50,000/- and in default, accused shall undergo simple imprisonment for one month.

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Aggrieved by the judgment of conviction and order of sentence passed by the trial Court, the accused preferred appeal in Crl.A.No.229/2017 before the learned V Additional Sessions Judge, Mysuru. In turn, the First Appellate Court dismissed the appeal filed by the accused and thereby, confirmed the judgment and conviction passed by the trial Court.

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Aggrieved by the concurrent findings passed by

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the trial Court as well as First Appellate Court, the accused has filed this petition.

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It is contended by learned counsel for the petitioner that the judgment of conviction and order of sentence passed by both the Courts is against the settled

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NC: 2023:KHC:43731 CRL.RP No. 366 of 2019

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principles of law, both the Courts have failed to understand and appreciate the provisions of law under Section 138 of N.I. Act. The complainant failed to prove beyond reasonable doubt that the cheque was issued towards legally enforceable debt or liability in order to attract Section 138 of the Act. It is further contended that accused had borrowed a sum of Rs.30,000/- as hand loan from the mother of the complainant and issued Ex.P1 - Cheque. But the complainant has misused the same and has presented the cheque for a sum of Rs.90,000/-. Therefore, there was no legally recoverable debt.

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On the basis of the above submissions made by

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the parties to the lis , the points that would arise for consideration are as follows:-

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1. Whether the accused proved that the judgment of conviction and order of sentence passed by the trial Court as well as First Appellate Court is perverse and calls for interference by this Court?

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2. What order?

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Point Nos.1 and 2 : From the material available on record, it appears that the complainant had filed a private complaint under Section 200 of Cr.P.C. against the accused for the offence punishable under Section 138 of the N.I. Act. The complainant, in order to establish her claim, examined herself on oath as PW-1 and got marked in all 08 documents as per Exs.P1 to P8. Ex.P1 is the Cheque, Ex.P2 is the Bank memo, Ex.P3 is the legal notice, Ex.P4 is the Certificate of posting receipt, Ex.P5 is the Postal receipt, Ex.P6 is the Unserved RPAD cover, Ex.P7 is the reply notice and Ex.P8 is the complaint and Ex.P8(a) is the signature of CW1.

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On perusal of the oral testimony of PW-1 and contents of Ex.P1 - cheque and Ex.P3 - legal notice, it appears that the accused had borrowed a sum of Rs.90,000/- from the complainant and in consideration thereof, he issued a cheque for a sum of Rs.90,000/- and on 01.02.2007, the complainant presented the said cheque for encashment to its Banker and the same was

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NC: 2023:KHC:43731 CRL.RP No. 366 of 2019

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dishonored as 'insufficient funds' in the account of accused'. Inspite of issuance of legal notice as per Ex.P3, accused failed to re-pay the said amount issued under the cheque - Ex.P1 and even he gave evasive reply. In the instant case, the issuance of cheque is admitted and it is marked as Ex-P1. The signature of the accused is also marked as Ex-P1(a). The endorsement/bank memo is marked as Ex-P2. Legal notice is marked as Ex-P3. The accused has not disputed issuance of cheque, service of legal notice on him, but he has taken the contention that he borrowed a sum of Rs.30,000/- from the mother of the complainant and in consideration thereof, he issued Ex-P1cheque, but the complainant misused the same. To substantiate such contention, the accused did not enter the witness box nor produced any documents before the Court. Therefore, the complainant has complied the legal requirement of section 138 of N.I. Act. Now the burden

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shifts on the accused to disprove the case of the complainant, but to rebut the burden, the accused did not enter the witness box. Again the fact remains that the

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NC: 2023:KHC:43731 CRL.RP No. 366 of 2019

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accused has not discharged the loan borrowed from the complainant and he has not placed any material to the effect that he discharged the loan of Rs.30,000/- borrowed from the mother of the complainant. The accused never made any efforts to examine the mother of the complainant and he has not placed any material to show that the cheque was not issued towards legally enforceable debt. On the contrary, the complainant has proved that Ex-P1 cheque was issued by the accused towards discharge of legally enforceable debt i.e., towards hand loan received by him. In this regard, the accused has not placed any contra evidence to disbelieve the case of the complainant.

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When the execution of Negotiable instrument is admitted, passing of consideration is admitted, signature found in Ex-P1 is admitted, then the court may draw presumption under section 118 of N.I. Act and the court shall draw presumption under section 139 of N.I. Act in favour of holder of the Negotiable Instrument.

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NC: 2023:KHC:43731 CRL.RP No. 366 of 2019

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In the instant case, the fact of debt or liability is not in dispute. On the contrary, it was acknowledged by the accused in his reply notice and he has simply taken the contention that he borrowed a sum of Rs.30,000/from the mother of the complainant, but he has not taken any contention that he has discharged the same.

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If the cheque was issued in relation to any other transaction or to the mother of the complainant, it has to be construed that the same was issued towards legally enforceable debt or liability. There is presumption that the Negotiable Instrument is supported by consideration. If any Negotiable Instrument is supported by consideration,

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the court shall draw presumption under the provisions of N.I. Act. In the instant case, the complainant has proved that at the relevant date, he lent loan of Rs.90,000/- to the accused and in consideration thereof, the accused issued Ex-P1 cheque in favour of the complainant. The accused has not placed any material before the Court to prove that under what circumstances, he issued the

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NC: 2023:KHC:43731 CRL.RP No. 366 of 2019

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cheque in favour of the complainant. Therefore, the trial court as well as first appellate court considering the factual

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and legal aspects of the matter, rightly convicted the accused. In view of the foregoing discussion on point No.1, the revision petition filed by the petitioner is liable to be rejected.

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Hence, I proceed to pass the following:-

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ORDER

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The revision petition filed by the petitioner is dismissed.

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The judgment of conviction and order of sentence dated 09.10.2017 passed in C.C.No.2810/2009 by II Addl. I Civil Judge & JMFC, Mysuru as well as first appellate court in Crl.A.No.229/2017 dated 06.02.2019 is confirmed.

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Sd/JUDGE

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VMB/MN List No.: 1 Sl No.: 35

Muddumadaiah v. B Jyothi

Case brief

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Muddumadaiah v. B Jyothi

Case brief

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