Dismissed

Dr.Yathindranath Shetty v. Sri.Bhadrappa Kulakarni

Karnataka HC20 Feb 2023CRL.RP/379/2022

Case brief

AI extract

What is this about?

High Court of Karnataka dismissed a revision petition challenging a conviction and fine of Rs.50 lakhs under Section 138 of the NI Act. The court held that the accused failed to rebut the statutory presumption by proving the underlying debt was not legally enforceable.

What did the court decide?

Amount in deposit ordered to be released to the complainant/respondent.

Dr.Yathindranath Shetty Vs Sri.Bhadrappa Kulakarni — Cheque Dishonour | Karnataka HC (2023)

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CRL.RP No. 379 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^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. 379 OF 2022

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BETWEEN:

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DR. YATHINDRANATH SHETTY, S/O. SUBBAIAH SHETTY, AGED ABOUT 71 YEARS, RESIDING AT NO.101, 2ND MAIN ROAD, 2ND STAGE, WEST OF CHORD ROAD, 1ST STAGE, BANGALORE - 560 086. …PETITIONER (BY SRI. N. SRINIVAS, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. BHADRAPPA KULAKARNI, S/O. LATE RAMACHANDRAPPA KULAKARNI, AGED ABOUT 61 YEARS, RESIDING AT NO.131, 3RD MAIN, WEST OF CHORD ROAD, 1ST STAGE, 6TH PHASE, MAHAGANAPATHI NAGAR, BANGALORE - 560 044. …RESPONDENT (BY SRI. ASHOK PATIL, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PLEASED TO SET ASIDE THE ORDER DATED 18.11.2021 PASSED BY THE HONOURABLE LXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-68) IN CRL.A.NO.211/2020, WHO WAS PLEASED TO DISMISS THE SAID APPEAL BY CONFIRMING THE ORDER DATED 06.01.2020 PASSED BY THE HONOURABLE IV ADDL.C.M.M. AND SMALL CAUSES JUDGE, BENGALURU (SCCH-6) IN C.C.NO.4638/2018.

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

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CRL.RP No. 379 of 2022

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ORDER

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This revision petition is filed challenging the judgment of conviction dated 06.01.2020 passed by the IV Additional Judge, Court of Small Causes and Additional C.M.M., Bengaluru (hereinafter referred to as 'Trial Court' for short) in C.C.No.4638/2018, 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 sentenced to pay a fine of Rs.50,00,000/-. The petitioner has also challenged the judgment dated 18.11.2021 passed by the LXVII Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as 'Appellate Court' for short) in Crl.A.No.211/2020, 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 No.1, while the respondent was the complainant.

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The records disclose that the petitioner was the owner of a property which he put up for sale. The complainant agreed to purchase the said property for a total sale

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3 - CRL.RP No. 379 of 2022

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consideration of Rs.1,85,00,000/- and paid advance of a sum of Rs.77,00,000/-. However, the accused was unable to conclude the sale transaction, which compelled the complainant to request the accused to repay the advance amount with interest. After negotiations, it was agreed that the accused shall repay a sum of Rs.1,25,00,000/- including the interest, out of which, he paid a sum of Rs.13,00,000/-. The accused had thereafter issued six cheques for Rs.70,00,000/- out of the agreed sum of Rs.1,25,00,000/- and assured to pay the remaining within one month after the cheques were encashed.

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The complainant claimed that three cheques for Rs.15,00,000/-, Rs.15,00,000/and Rs.20,00,000/-, respectively were presented for encashment but were returned with the endorsement 'account closed'. The complainant therefore caused a notice calling upon the accused to pay a sum of Rs.50,00,000/- covered under the aforesaid three cheques. The notice so issued was returned as 'not claimed'. The complainant therefore initiated proceedings to prosecute the accused for the offence punishable under Section 138 of NI Act, 1881.

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CRL.RP No. 379 of 2022

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The trial Court after recording the pre-summons evidence of the complainant, registered C.C.No.4638/2018 and issued process to the accused and secured his presence. He was released on bail. The substance of accusation was read over to the accused, who denied it and claimed to be tried. The complainant was examined as PW.1 and he marked Exs.P1 to P15. The trial Court recorded the statement of the accused under Section 313 of Cr.P.C. and he denied the incriminating evidence against him. However, he did not lead any evidence in defence. Based on the oral and documentary evidence, the trial Court held that the complainant had proved that the cheques in question were drawn by the accused towards discharge of a lawful debt under the agreement of sale dated 04.03.2015 and therefore, it convicted the accused for the offence punishable under Section 138 of NI Act, 1881 and sentenced him to pay fine of Rs.50,00,000/-. An appeal preferred by the accused against the said judgment of conviction before the Appellate Court was also dismissed.

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Being aggrieved by the judgment of both the Courts, the present revision petition is filed.

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5 - CRL.RP No. 379 of 2022

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Learned counsel for the accused submitted that the complainant had claimed a sum of 25,00,000/- was transferred from the account of daughter of the complainant to the accused, but no document in that regard was placed before the trial Court. He therefore submitted that there was a doubt regarding the transaction in question and that the cheque in question was drawn towards discharge of the said liability.

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Per contra, learned counsel for the complainant claimed that the accused did not step into the witness box to deny the execution of the agreement at Ex.P14. He submitted, on the contrary, suggestions were put to the complainant during the cross-examination, which indicated that Ex.P14 was indeed entered into between the complainant and the accused. He contended that since the accused did not enter the witness box and did not produce any material to establish that he had refunded the amount received by him under the agreement at Ex.P14, the judgment of conviction passed by the trial Court does not warrant interference.

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I have considered the submissions made by the learned counsel for the accused as well as the learned counsel

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CRL.RP No. 379 of 2022

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for the complainant and also perused the records of the trial Court as well as its judgment and the judgment of the Appellate Court.

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As rightly contended by the learned counsel for the complainant, Ex.P14 was indeed admitted by the accused in view of the suggestion put to PW.1 in the course of crossexamination. The accused did not deny his signature found on Ex.P14. He also did not deny the cheques in question were drawn from his account and the signatures found there on. The accused did not come up with a specific defence to rebut the presumption under Section 139 of NI Act, 1881 but merely claimed that the amount was not paid to him which was not sufficient. As a matter of fact, during the course of crossexamination of PW.1, a suggestion was put that the accused had paid the entire amount by cash, thereby probabilizing the fact that the cheques in question were indeed drawn for discharging the liability of the accused. In the absence of any material to establish that the accused had paid the amount payable under the cheques 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.

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CRL.RP No. 379 of 2022

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There is no merit in the contention of the petitioner

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and therefore, this revision petition is dismissed .

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Any amount in deposit is ordered to be released to the

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complainant/respondent.

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Sd/JUDGE

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NR/List No.: 1 Sl No.: 50

Dr.Yathindranath Shetty v. Sri.Bhadrappa Kulakarni

Case brief

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Dr.Yathindranath Shetty v. Sri.Bhadrappa Kulakarni

Case brief

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