Dismissed

Smt Jamuna S v. M/S Sree Gowri Ganesh

Karnataka HC17 Feb 2023CRL.RP/49/2014

Case brief

AI extract

What is this about?

This Criminal Revision Petition challenged conviction and sentence under Section 138 of the Negotiable Instruments Act regarding a dishonoured cheque issued by a guarantor. The High Court held the guarantor was liable alongside the borrower, the presumption was valid, and dismissed the petition.

What the court decided

AI extract

Smt Jamuna S Vs M/S Sree Gowri Ganesh — Cheque Dishonour | Karnataka HC (2023)

¶1

¶2

CRL.RP No. 49 of 2014

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF FEBRUARY, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY

¶6

CRL.R.P. NO. 49 OF 2014

¶7

BETWEEN:

¶8

SMT. JAMUNA S W/O SURESHKUMAR AGED ABOUT 40 YEARS NO.45, 1ST FLOOR LAKSHMI NIVAS BASAPPA LAYOUT, G.K.G. ROAD GAVIPURAM, BANGALORE - 560 019.

¶9

…PETITIONER

¶10

(BY SRI SUKUMARAN G, ADV.)

¶11

Digitally signed by B A KRISHNA KUMAR Location: High Court of Karnataka

¶12

AND:

¶13

M/S. SREE GOWRI GANESH CHIT PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE AT NO. 307, 1ST FLOOR, 2ND MAIN 7TH CROSS, DOMLUR LAYOUT BANGALORE - 560 071.

¶14

…RESPONDENT

¶15

(BY SRI K.P. THRIMURTHY, ADV.)

¶16

THIS CRL.RP IS FILED U/S. 397 AND 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:20.12.12 PASSED BY THE XIV ADDL.C.M.M., BANGALORE IN C.C.NO.97925/2009 AND ORDER DATED:26.12.13 PASSED BY THE INCHARGE P.O., FTC-III, MAYO HALL UNIT, BANGALORE IN CRL.A.NO.25016/13 AND ETC.

¶17

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

¶18

¶19

CRL.RP No. 49 of 2014

¶20

ORDER

¶21

This criminal revision petition is filed challenging the judgment and order of conviction and sentence dated 20.12.2012 passed by XIV Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.97925/2009, and the judgment and order dated 26.12.2013 passed by the Fast Track Court-III, Mayohall Unit, Bangalore, in Crl.A.No.25016/2013.

¶22

Heard learned counsel for the parties and also perused the material available on record.

¶23

Brief facts of the case as revealed from the records

¶24

that may be necessary for the purpose of disposal of this petition are, the petitioner was a guarantor to one Sri Suresh who had subscribed a chit which was conducted by the respondent/chit company. Towards the legally irrecoverable debt of the aforesaid Suresh, the petitioner herein had issued a cheque bearing No.567920 dated 12.06.2009 for a sum of Rs.5,18,373/- drawn on Vijaya Bank, Residency Road Branch, Bangalore, in favour of the respondent and the said cheque on presentation for realization was dishonoured with the shara 'insufficient funds'. The respondent, thereafter, got issued a

¶25

¶26

CRL.RP No. 49 of 2014

¶27

statutory notice to the petitioner and since the amount covered under the cheque was not paid inspite of service of notice, the respondent had filed a complaint under Section 200 of Cr.PC for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, 'the Act').

¶28

The petitioner had appeared before the Trial Court in the said proceedings and pleaded not guilty, and therefore, in order to substantiate its case, the complainant had examined two witnesses before the Trial Court as PWs-1 & 2 and also got marked 10 documents as Exs.P-1 to P-10. On behalf of the petitioner, she examined one Suresh as DW-1. However, no documents were marked in support of her defence. The Trial Court, thereafter, heard the arguments on both sides and by its judgment and order dated 20.12.2012 convicted the petitioner for the offence punishable under Section 138 of the Act and sentenced her to pay a fine of Rs.5,50,000/- and in default to undergo simple imprisonment for a period of one year. The appeal filed by the petitioner against the said judgment and order of conviction and sentence in Crl.A.No.25016/0013 was also dismissed by the Appellate Court. It is under these circumstances, the petitioner is before this Court.

¶29

¶30

CRL.RP No. 49 of 2014

¶31

Learned Counsel for the petitioner submits that the petitioner was only a guarantor and she was not liable to pay any amount to the respondent. He submits that there is no legally recoverable debt from the petitioner, and therefore, conviction of the petitioner for the alleged offence is bad in law. He submits that the courts below have not appreciated the oral and documentary evidence available on record and have erred in convicting the petitioner for the offence under Section 138 of the Act.

¶32

Per contra, learned Counsel for the respondent has submitted that issuance of cheque and the contents of the cheque are not in dispute, and therefore, there is a presumption under Section 139 of the Act which was not rebutted by the petitioner in accordance with law, and therefore, the order of conviction passed by the courts below against the petitioner are just and proper.

¶33

I have carefully considered the arguments addressed on both sides and also perused the material available on record.

¶34

¶35

CRL.RP No. 49 of 2014

¶36

The issuance of cheque by the petitioner, the contents of the said cheque and the signature found in the said cheque are not disputed by the petitioner. The only defence taken by the petitioner is that she is the guarantor in the present case, and therefore, she is not liable to pay any amount to the respondent-Company and the primary liability was on the subscriber of the chit. The petitioner has not disputed the fact that she was a guarantor to one Suresh who was admittedly a subscriber to the chit which was conducted by the respondentcompany. She also has not disputed the issuance of cheque by her to the respondent-company.

¶37

It is trite law that the guarantor and the borrower are equally liable in so far as the creditor is concerned. The creditor is at liberty to proceed as against either of them. Therefore, it cannot be said that the amount which was due to be paid by Suresh who is the subscriber of the chit to the respondentcompany, cannot be said to be a legally recoverable debt from the petitioner who is admittedly a guarantor to the said Suresh. In addition to the same, there is a presumption under Section 139 of the Act against the petitioner since she has admitted the

¶38

¶39

CRL.RP No. 49 of 2014

¶40

issuance of cheque and also the contents and the signature found in the cheque.

¶41

The Trial Court as well as the Appellate Court after appreciating the oral and documentary evidence available on record have concurrently recorded a finding that the petitioner is guilty of the offence under Section 138 of the Act and have accordingly, convicted her for the said offence. I do not find any illegality or irregularity in the said judgment and order of conviction passed by the courts below. Unless it is pointed out that the said judgment and order suffers from any perversity or illegality, this Court in exercise of its revisional jurisdiction cannot interfere with the same.

¶42

The cheque in question was for an amount of Rs.5,18,373/- and the Trial Court had sentenced the petitioner to pay a fine of Rs.5,50,000/-, and therefore, even the sentence imposed by the petitioner cannot be said to be unreasonable. Under the circumstances, I do not find any good reason even to interfere with the judgment and order of sentence passed by the Trial Court which has been upheld by

¶43

¶44

CRL.RP No. 49 of 2014

¶45

the Appellate Court. I find no merit in this revision petition.

¶46

Accordingly, the same is hereby dismissed.

¶47

SD/JUDGE

¶48

Smt Jamuna S v. M/S Sree Gowri Ganesh

Case brief

What is this about?

What the court decided

Smt Jamuna S v. M/S Sree Gowri Ganesh

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Naganna Vs the State of Karnataka

Naganna Vs the State of Karnataka

Premavathy Vs N Veenakumari

Mr.Nandish Vs the State of Karnataka

Shri K C Koragappa Vs State of Karnataka

Smt. Sujatha Vs State of Karnataka