Dismissed

Sri Ekbal Ahamed v. Sri Basavaraju D S

Karnataka HC15 Nov 2023CRL.RP/499/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal revision petition challenging a conviction under Section 138 of the Negotiable Instruments Act. The court held that the accused failed to rebut the statutory presumption due to lack of evidence supporting theft or employment claims and confirmed the lower courts' judgment and sentence.

What did the court decide?

Petition under Section 397 r/w 401 Cr.P.C dismissed. Impugned judgment and orders of trial court and Sessions court confirmed.

Sri Ekbal Ahamed Vs Sri Basavaraju D S — Cheque Dishonour | Karnataka HC (2023)

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CRL.RP No. 499 of 2019 NC: 2023:KHC:40635

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.499 OF 2019

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BETWEEN:

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SRI EKBAL AHAMED PROPRIETOR AGED ABOUT 61 YEARS M/S GUDI NO.59/A, MARKET ROAD, GANHI BAZAR BASAVANAGUDI BENGALURU - 560 004.

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…PETITIONER

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(BY SRI. H MOHAN KUMAR, ADVOCATE)

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AND:

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Digitally signed by MADHURI S Location: High Court of Karnataka

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SRI BASAVARAJU D S S/O LATE SIDDAIAH AGED ABOUT 43 YEARS R/AT NO.17, 2^ND CROSS, AVALAHALLI, BENGALURU - 560 026.

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…RESPONDENT (BY SMT. JYOTHI BHAT, ADVOCATE FOR SRI. VIJAY NARAYAN, ADVOCATE)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO a) SET ASIDE THE AFORESAID JUDGMENT AND ORDER DATED 13.10.2017 IN C.C.NO.9707/2013 ON THE FILE OF THE XXIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU; b) SET ASIDE THE JUDGMENT AND ORDER DATED 25.02.2019 IN CRL.A.NO.1579/2017 ON THE FILE OF THE LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, CONVICTING THE ACCUSED FOR

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CRL.RP No. 499 of 2019 NC: 2023:KHC:40635

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THE OFFENCES PUNISHABLE UNDER SECTION 138 OF N.I ACT, CONSEQUENTLY DISMISS THE COMPLAINT FILED BY THE RESPONDENT IN C.C.NO.9707/2013 BEFORE THE TRIAL COURT, BY ALLOWING THE CRIMINAL REVISION PETITION , IN THE INTEREST OF JUSTICE AND EQUITY.

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

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ORDER

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In this petition filed under Section 397 r/w 401 of Cr.P.C, accused has challenged his conviction and

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sentence imposed by the trial Court for the offence punishable under Section 138 of N.I. Act, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him.

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For the sake of convenience, parties are referred by the rank before the trial Court.

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According to the complainant, he came to be acquainted with the accused through a Psychologist and used to sit in the shop of accused who was dealing in purchase and sale of artifacts. Due to this acquaintance, he has provided financial assistance to the accused by way of paying his bills and also in cash for a total sum of

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CRL.RP No. 499 of 2019 NC: 2023:KHC:40635

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Rs.13,23,761. Accused was paying the said amount in monthly instalments of Rs.8000/-. Accused was due in a sum of Rs.7,59,761/-. When accused stopped making payment, on the insistence of the complainant towards part payment of the said amount, accused issued a post dated 10.04.2013 cheque. However, when presented for encashment, it was dishonoured for want of sufficient funds and after issuing notice and completing all the formalities complainant filed the complaint.

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Accused contested the case and pleaded not guilty and claimed trial.

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Complainant has examined himself as PW-1 and relied upon Ex.P1 to 8.

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During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence.

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CRL.RP No. 499 of 2019 NC: 2023:KHC:40635

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In fact, he has stepped into the witness box by examining himself as DW-1. He has got marked Ex.D1 to 7.

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Vide the impugned judgment and order the trial

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Court convicted the accused and sentenced him to pay fine of Rs.6,25,000/- with a default clause.

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The appeal filed by the accused before the Sessions Court also came to be dismissed, thereby confirming the order of the trial Court.

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Being aggrieved by the same, petitioner is before this Court contending that the impugned judgments and orders passed by the trial Court as well as the Sessions court are improper and unsustainable in law. The reasons assigned for recording order of conviction are illegal and improper. Both Courts have failed to appreciate the material evidence on record. They have failed to note the several infirmities in the evidence of complainant. The sentence passed is too harsh and severe and prays to

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CRL.RP No. 499 of 2019 NC: 2023:KHC:40635

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allow the petition and set aside the impugned judgments and orders.

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Learned counsel representing complainant has supported the impugned judgment and order and sought for dismissal of the petition.

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Heard arguments of both sides and perused the record.

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Accused has not disputed that the cheque in question belongs to him, drawn on his account maintained with his banker and it bears his signatures. Such being the case, the presumption under Sections 118 and 139 of the N.I.Act is attracted. Consequently it is required to draw a presumption that the cheque was issued towards payment of any legally recoverable debt or liability. Therefore, the burden is on the accused to prove that cheque was not issued towards repayment of any legally recoverable debt or liability and he is required to establish the

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CRL.RP No. 499 of 2019 NC: 2023:KHC:40635

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circumstances under which the cheque has reached the hands of complainant.

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Admittedly, the accused has not sent reply to the legal notice and thereby he has not only failed to pay the amount due under the cheque within the specified time, but he has also lost opportunity to put forth the circumstances under which the cheque in question has allegedly reached the hands of complainant. However, during the cross-examination of PW-1, the accused has taken up a defence that complainant used to sit in his shop and during the said period he has stolen the signed cheque in question which he had kept for the purpose of his business and utilising it has filed a complaint. Admittedly, the accused has not filed any complaint against the complainant for allegedly stealing the cheque. He has also not given any instructions to his banker to stop payment.

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At the first available opportunity he has not revealed this factor by sending reply to the complainant.

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CRL.RP No. 499 of 2019 NC: 2023:KHC:40635

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The accused has also taken up a defence that complainant used to work in his shop and he used to pay Rs.8000/p.m as a salary to him. Admittedly, the accused has not produced any documents to show that complainant was employed in his shop. With regard to maintaining any records in respect of employees of his shop, the accused has expressed ignorance as to whether any records were maintained etc., and claimed that his wife is in the knowledge of these aspects. However, the accused has not examined his wife.

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It is relevant to note that complainant is an employee of Wipro and he has produced evidence to show that on several occasions he has made several payments through cheques and cash. The accused is not having any explanation for these payments made by the complainant. Certainly as an alleged employee of the accused, complainant is not expected to make the said payments. The perusal of oral and documentary evidence placed on record it makes evident that the accused has taken up a

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CRL.RP No. 499 of 2019 NC: 2023:KHC:40635

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false defence and failed to prove the same. Thereby the accused has failed to rebut the presumption. Consequently, the burden is not shifted on the complainant. Despite the same, the complainant has placed sufficient material on record to prove his case. On the other hand, the accused has miserably failed to rebut the presumption operating in favour of the complainant.

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During the course of arguments, learned counsel representing accused made a faint effort to show that the establishment run by the accused is a partnership firm and without specific pleadings and without arraigning the partner of the firm, complaint is not maintainable. As already noted by not sending the reply, at the earliest available opportunity the accused has failed to come up with any definite defence. There is also no crossexamination of complainant with regard to the argument now put forth before this Court. During the course of his affidavit evidence, the accused has claimed that the shop run by him is a partnership firm and his wife is another

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CRL.RP No. 499 of 2019 NC: 2023:KHC:40635

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partner. No documents are produced by the accused to show that it was a partnership firm and the cheque in question was issued on behalf of the firm. In fact in the cheque at Ex.P3, he has signed as the

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Proprietor/Authorised signatory.

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Appreciating the oral and documentary evidence placed on record in right perspective, the trial Court as well as the Sessions Court have come to a correct conclusion. This Court do not find any justifiable grounds to interfere with the well reasoned judgments of both Courts. Having regard to the amount due under the cheque, the punishment imposed is also appropriate and reasonable. Consequently, there are also no grounds to interfere with the quantum of punishment also. In the result, the petition fails and accordingly the following:

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ORDER

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(i) Petition filed by the accused under Section 397 r/w Section 401 Cr.P.C is hereby dismissed.

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10 - CRL.RP No. 499 of 2019 NC: 2023:KHC:40635

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(ii) The impugned judgment and order dated 13.10.2017 in C.C.No.9707/2013 on the file of XXIII ACMM, Bengaluru and dated 25.02.2019 in Crl.A.No.1579/2017 on the file of LXIII Addl.City Civil and Sessions Judge, Bengaluru are hereby confirmed.

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(iii) The Registry is directed to send back the trial Court and Sessions Court records along with copy of this order forthwith.

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Sd/JUDGE

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RR List No.: 1 Sl No.: 40

Sri Ekbal Ahamed v. Sri Basavaraju D S

Case brief

What is this about?

What did the court decide?

Sri Ekbal Ahamed v. Sri Basavaraju D S

Case brief

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What did the court decide?

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