Dismissed

Sri Vijay Kumar v. Sri Ranjith

Karnataka HC18 Aug 2023CRL.RP/508/2015

Case brief

AI extract

What is this about?

High Court of Karnataka dismissed criminal revision challenging conviction under cheque dishonour. Court upheld conviction, finding accused failed to rebut statutory presumption despite adopting suggestions implying admission of transaction.

What did the court decide?

Revision petition dismissed; order of conviction and sentence confirmed; accused directed to pay any deposited amount to complainant.

Sri Vijay Kumar Vs Sri Ranjith — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR

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CRIMINAL REVISION PETITION NO.508 OF 2015

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BETWEEN:

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SRI. VIJAY KUMAR S/O LATE BHOGA NARSIMHAIAH .T.K, AGED ABOUT 60 YEARS R/A NO.245, LAKSHMI NARASIMHA SWAMY PRASANNA, 1^ST PHASE, 5^TH MAIN, MANJUNATHA NAGAR, WOC ROAD, OPP. MODI HOSPITAL, RAJAJINAGAR, BENGALURU-560 010.

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AND ALSO AT WORKING AS FIRST DIVISION ASSISTANT, V.V. PURAM ARTS AND COMMERCE COLLEGE, K.R. ROAD, BENGALURU-04

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….PETITIONER

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(BY SRI. NATARAJA .B.S, ADVOCATE (ABSENT))

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AND:

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SRI. RANJITH S/O M. JAYARAM, AGED ABOUT 24 YEARS, RESIDING AT NO.18, “SUMUK”, 9^TH BLOCK, MALLATHAHALLI, FURTHER EXTENSION, VISHWESHWARAIAH LAYOUT, BANGALORE-560 056. (BY SMT. VANI .H.V, ADVOCATE)

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...RESPONDENT

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT, CONVICTION AND SENTENCE DATED 30.04.2015 PASSED BY THE LXII ADDL. CITY CIVIL AND S.J. (CCH-63), BENGALURU IN CRL.A.NO.1232/2014 AND ALSO THE JUDGMENT, CONVICTION AND SENTENCE DATED 25.10.2014 PASSED BY THE XXII A.C.M.M., BANGALORE IN C.C.NO.7170/2012 AND THEREBY ACQUIT THE PETITIONER/ACCUSED IN C.C.NO.7170/2012 FOR THE OFFENCE U/S 138 OF N.I.ACT.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.08.2023, COMING ON FOR ‘PRONOUNCEMENT OF ORDER’ THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision is filed by the accused under Section 397 r/w 401 of Cr.P.C. challenging the judgment of conviction and order of sentence passed by XXII ACMM, Bangalore, in CC.No.7170/2012 and confirmed by LXII Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.1232/2014.

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For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case are that the complainant and accused are well acquainted for several years and due to financial needs during the

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month of June-2010, accused requested the complainant

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to accommodate him with a hand loan of Rs.1,55,000/and accordingly, the complainant paid the said sum. The accused assured the complainant of returning the said amount within six months, but he did not do so. Later on, when there were repeated requests by the complainant, he issued cheque dated 26.08.2011 for Rs.1,55,000/under Ex.P1 and when the same was presented, it was bounced for insufficient of funds. Hence, a legal notice was issued to the official address of the accused as well as his residential address. Notice was served at the official address, but in residential address it returned as “not claimed”. Hence, the complaint came to be lodged.

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The learned Magistrate has taken cognizance

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and issued process against the accused. Accused has appeared through his counsel and was enlarged on bail. He has also denied the accusation. The complainant was got examined himself as PW1 and placed reliance of eight documents marked at Exs.P1 to P8. After conclusion of the evidence, the statement of accused under Section

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313 Cr.P.C. was recorded and the case of accused is of total denial. However, he himself has got examined as DW1. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of NI Act and sentenced him to pay a fine of Rs.1,60,000/-.

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Being aggrieved by this judgment of conviction and order of sentence, the accused has approached the learned LXII Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.1232/2014 and learned Sessions Judge vide judgment dated 30.04.2015, dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the trial Court. Against these concurrent findings, this revision is filed.

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Heard the arguments advanced by the learned

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counsel for the revision petitioner. In spite of granting sufficient opportunities, the learned counsel for the respondent did not choose to appear before the Court so as to advance the arguments. Perused the records.

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Learned counsel for the revision petitioner

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would contend that both the Courts below have committed an error in convicting the accused. He would contend that the complainant was a student and he had no financial capacity to advance the loan and hence, the presumption cannot be drawn in favour of the complainant under 139 of the NI Act. He would contend that the evidence does not inspire the confidence of the Court and both the Courts below have erred in convicting the accused for the offence punishable under Section 138 of NI Act. Hence, he would seek for allowing the revision.

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Having heard the arguments and perusing the records, now the following point would arise for my consideration:

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“Whether the impugned judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court are perverse, erroneous and arbitrary so as to call for any interference by this Court.”

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It is the contention of the complainant that accused

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for his family needs, has availed a hand loan of Rs.1,55,000/- and in discharge of the said debt, the cheque-Ex.P1 was issued. It is further asserted that when cheque was bounced, a legal notice came to be issued and inspite service, no reply was given and hence, the complaint came to be lodged. Accused has not disputed his signature on the cheque and further, he has not disputed that the cheque belongs to him. He simply disputes that he has availed a hand loan of Rs.1,55,000/from the complainant. He attempted to dispute the financial capacity of the complainant so as to shift the burden on the complainant to prove his financial status.

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The complainant is examined as PW1 and in his examination-in-chief he has reiterated the complaint allegation. In the cross-examination of PW1, it is elicited that accused was introduced to the complainant by one Kumar who is the relative of the complainant in 2010. It is interesting to note that all along, the financial transaction is being denied, but during the cross-

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examination of PW1 certain material aspects have been

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suggested which were not challenged. PW1 in his crossexamination stated as under:

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“DgÉÆÃ¦AiÀÄÄ £À£Àß£ÀÄß ºÀt PÉÃ¼ÀÄªÀ ¸À®ÄªÁV ¸ÀzÀj PÀÄªÀiÁgïgÀªÀgÀ eÉÆvÉ §A¢zÀÝgÀÄ. DgÉÆÃ¦UÉ ºÀtªÀ£ÀÄß PÉÆqÀÄªÁUÀ ¸ÀzÀj PÀÄªÀÄgïgÀªÀgÉÃ EzÀÝgÀÄ. F ªÀåªÀºÁgÀ ªÀiÁqÀ¨ÉÃPÁzÀgÉ PÀÄªÀiÁgï gÀªÀgÀÄ ºÀt ¥ÀqÉzÀÄPÉÆAqÀgÀÄ JAzÀgÉ ¸ÀÄ¼ÀÄî. DzÀgÉ CgÉÆÃ¦AiÉÄÃ ¥ÀqÉzÀÄPÉÆArgÀÄvÁÛgÉ. £Á£ÀÄ PÀÄªÀiÁgï gÀªÀjUÉ ºÀt PÉÆnÖzÉÝ. ZÉPÀÌ£ÀÄß DgÉÆÃ¦ PÀÄªÀiÁgïgÀªÀjUÉ PÉÆnÖzÀÝgÀÄ ¸ÀzÀj ZÉPÀÌ£ÀÄß £Á£ÀÄ zÀÄgÀÄ¥ÀAiÉÆÃUÀ¥Àr¹PÉÆArzÉÝÃ£ÉAzÀgÉ ¸ÀÄ¼ÀÄî.”

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This suggestions on the part of the accused

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clearly establish that the financial transaction has taken place in the presence of Kumar between the accused and complainant. The accused has made suggestions that the amount was taken by one Kumar and that cheque was issued to the Kumar. But said suggestions were denied. By making these suggestions, the accused has virtually admitted the financial transaction. It is for the accused to explain how the complainant came in possession of the Cheque issued to one Kumar. But there is no explanation from the accused.

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Apart from that, the accused himself has got examined as DW1 and in his cross-examination, he

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admits that Ex.P1 cheque belongs to him and it bears his signature. He has also admitted the address shown at Ex.P6 postal acknowledgement is pertaining to his office. Though he denies the service of notice, it is a fact that the notice was sent to the proper address of the accused and it is deemed service. It is for the accused to explain how he missed that notice, but that is not forthcoming. Further in the cross-examination of DW1, he has admitted that the father of the complainant died in 2009 and his entire family was taken care by the complainant and the retirement benefits of the father were received by the complainant. So these admissions given by DW1 and suggestions made to PW1 clearly establish financial status of the complainant. The cheque admittedly belongs to the accused and accused though admits his address, he did not explain why he has not replied to the said notice. When the cheuqe and signature has been admitted and the financial status of the complainant is established prima facie, it is evident that the initial presumption under Section 139 of NI Act is in favour of

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the complainant. Accused has failed to rebut the said

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presumption available in favour of the complainant.

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Both the Courts below have appreciated the

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oral and documentary evidence in detail and have analyzed the same in accordance with law. No perversity or illegality is found with the judgment of conviction and order of sentence passed by both the Courts below. Looking to these facts and circumstances of the case, the point under consideration is answered in the negative. Hence, petition being devoid of any merits, fails and accordingly, I proceed to pass the following:

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ORDER

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1. The revision petition stands dismissed.

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1. The amount, if any, deposited by the accused before this Court or before the lower Courts shall be paid to the complainant.

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Sd/- JUDGE

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Sri Vijay Kumar v. Sri Ranjith

Case brief

What is this about?

What did the court decide?

Sri Vijay Kumar v. Sri Ranjith

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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