Dismissed

Sri P Ramesh v. Sri Prabhakar

Karnataka HC28 Aug 2023CRL.RP/677/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a revision petition challenging convictions under Section 138 of the Negotiable Instruments Act for cheque dishonour. The bench found the defence of lost blank cheques improbable and affirmed the lower courts' findings on legally enforceable debt.

What did the court decide?

The revision petition was dismissed, affirming the conviction and sentence imposed by the lower courts.

Sri P Ramesh Vs Sri Prabhakar — Cheque Dishonour | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:31181 CRL.RP No. 677 of 2015

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 28^TH DAY OF AUGUST, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL REVISION PETITION NO. 677 OF 2015

¶6

BETWEEN:

¶7

SRI. P. RAMESH S/O P PAPANNA, AGED ABOUT 50 YEARS, R/AT NO.3, 1^ST FLOOR,7^TH CROSS, CHOLURPALYA, PIPELINE, VIJAYANAGAR, BANGALORE-560 040

¶8

…PETITIONER (BY SRI. K.V. NARASIMHAN, ADVOCATE FOR SRI. K.V. NARASIMHAN, ADVOCATE)

¶9

AND:

¶10

Digitally signed by RENUKAMBA K G

¶11

Location: High Court of Karnataka

¶12

SRI. PRABHAKAR, S/O B CHINNASWAMY, PROPRIETOR, BANGALORE TRADERS NO.18 (CELLAR), M. RAMAMURTHY ROAD, SRIRAMPURA, BANGALORE-560 021. …RESPONDENT (BY SRI. KALYAN .R, ADVOCATE)

¶13

THIS CRL.RP IS FILED U/S.397 & 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 15.4.2015 PASSED BY THE HON'BLE LXIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU IN CRL.A.NO.158/2014 AND THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 31.12.2013 PASSED IN C.C.NO.165/2009 BY THE LEARNED XII ACMM, BANGALORE.

¶14

¶15

NC: 2023:KHC:31181 CRL.RP No. 677 of 2015

¶16

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

¶17

ORDER

¶18

This revision petition is filed by the accused/revision petitioner under Section 397 r/w Section 401 of Cr.P.C. challenging the judgment of conviction and order of sentence passed by XIII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.165/2009, dated 31.12.2013 and confirmed by LXIX Additional City Civil & Sessions Judge, Bangalore City, in Crl.A.No.158/2014 vide judgment dated 15.04.2015.

¶19

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

¶20

The brief factual matrix leading to the case are that the complainant and accused are known to each other since several years and towards discharge of liabilities, the accused has issued cheque for Rs.1,89,000/- and when the cheque was presented for encashment, it was dishonoured for insufficient of funds. A legal notice was

¶21

3 - NC: 2023:KHC:31181 CRL.RP No. 677 of 2015

¶22

issued, but there was no response and hence, the complaint came to be lodged.

¶23

The learned Magistrate has taken cognizance of the offence and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. He has denied the accusation. The complainant was got examined himself as PW1 and placed reliance on ten documents marked at Ex.P1 to Ex.P10. Thereafter, the statement of accused under Section 313 Cr.P.C. is recorded to enable him to explain the incriminating evidence appearing against him in the case of the complainant. The case of the accused is of total denial. The accused got examined himself as DW1 and placed reliance on two documents marked at Exs.D1 & D2.

¶24

After having heard the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused by imposing sentence of a fine of Rs.1,94,000/- with a default sentence. Being aggrieved by this judgment of conviction

¶25

4 - NC: 2023:KHC:31181 CRL.RP No. 677 of 2015

¶26

and order of sentence, the accused has approached the LXIX Additional City Civil & Sessions Judge, Bangalore, in Crl.A.No.158/2014. The learned Sessions Judge after reappreciating the oral and documentary evidence dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate. Against these concurrent findings, this revision is filed.

¶27

Heard the arguments advanced by the learned counsel for revision petitioner and the learned counsel for the respondent. Perused the records.

¶28

The learned counsel for revision petitioner would contend that both the Courts below have failed to appreciate the oral and documentary evidence in proper perspective and there is no material evidence to show that there existed legally recoverable debt. He would also contend that Ex.P9 relied by the complainant does not establish legally enforceable debt as the signature of the accused is not found in these bills. It is asserted that the petitioner has lost his cheques which he had kept in his

¶29

5 - NC: 2023:KHC:31181 CRL.RP No. 677 of 2015

¶30

bag in October-2007 and same have been misused and hence, he disputed the liability. Hence, he has sought for allowing the revision by setting aside the impugned judgment of conviction and order of sentence.

¶31

Per contra, learned counsel for the respondent would support the judgment of conviction and it is submitted that the cheque admittedly belongs to the accused and it bears his signature and there is a presumption in favour of the complainant under Section 139 of the N.I. Act. He would also contend that the defence raised by the accused is not probable and he has not proved his defence on the basis of preponderance of probability and hence, he has sought for dismissal of the revision.

¶32

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

¶33

“Whether the Judgment of conviction and order of sentence passed by both the Courts

¶34

6 - NC: 2023:KHC:31181 CRL.RP No. 677 of 2015

¶35

below are perverse, arbitrary and erroneous so as to call for any interference by this Court?”

¶36

PW1 in his evidence has specifically stated that

¶37

the accused used to purchase building materials from the complainant and for having purchased building materials on 02.04.2008, 22.04.2008, 05.05.2008, 20.05.2008 and 31.05.2008, 10.06.2008 accused was required to pay sum of Rs.1,74,280/- and he has also taken Rs.14,720/- by cash and hence, the liability is for Rs.1,89,000/- . It is contended by the learned counsel for the revision petitioner that in the complaint and in the legal notice there is no specific pleading regarding the dates. But the complainant in his evidence has specifically asserted the specific pleadings and the complaint is not an encyclopedia. It is asserted that towards legally dischargeable debt cheque was issued. Further Ex.P9 is relied and Ex.P9 though it does not bear the signature of the accused but it is to be noted here that it is also containing other transactions with other customers wherein the signatures of the other customers are not

¶38

7 - NC: 2023:KHC:31181 CRL.RP No. 677 of 2015

¶39

found. Hence, it does not mean that accused has not received materials and Ex.P9 is maintained by the complainant during regular course of business. Hence, from Ex.P9 coupled with evidence of PW1, it is established that the accused was required to pay a sum of Rs.1,89,000/- to the complainant.

¶40

Accused has raised a defence that the cheques kept in his bag were misplaced and one of them is being misused by the complainant. In this context he is placing reliance on Ex.D1 and Ex.D2. But on perusal of Ex.D1 it is evident that it is issued on 24.09.2009. Legal notice was issued on 31.07.2008 itself and after one year this Ex.D1 is issued. Hence, no much importance can be given to Ex.D1 as it was subsequent to filing the complaint. Complaint itself was filed on 10.09.2008 and hence, Ex.D1 cannot be given any relevance. Ex.D2 is the certificate regarding missing of the cheque and evidence of DW1 is relied but cross-examination of DW1 reveals that he does not know any transaction between the complainant and

¶41

8 - NC: 2023:KHC:31181 CRL.RP No. 677 of 2015

¶42

accused. Further, it is asserted that stop payment instructions was given on 23.10.2007. There is no document to show that what the information was given to the bank for stopping the payment. The accused could have produced the material documents through Bank to show that on 23.07.2007 he has specifically asserted that

¶43

the cheque leaves have been lost but no such material documents have been produced. Further, accused himself did not enter into Witness box and the defense raised by him is not a probable defense.

¶44

The cheque was issued by the accused and it bears his signature. Further, it is hard to accept that accused kept blank signed cheques in his bag which was lost which is against a human tendency and against human nature. Hence, the defence raised by the accused is not acceptable. Both the courts below have appreciated the oral and documentary evidence in the proper perspective and have rightly convicted the accused by imposing a reasonable sentence. No illegality or perversity is found in the judgment of conviction and order of

¶45

9 - NC: 2023:KHC:31181 CRL.RP No. 677 of 2015

¶46

sentence passed by both the courts below so as to call for interference. As such, the point under consideration is answered in the negative. Hence, revision being devoid of any merits does not survive for consideration and accordingly, I proceed to pass the following:

¶47

ORDER

¶48

The revision petition stands dismissed .

¶49

Sd/JUDGE

¶50

¶51

List No.: 1 Sl No.: 19

Sri P Ramesh v. Sri Prabhakar

Case brief

What is this about?

What did the court decide?

Sri P Ramesh v. Sri Prabhakar

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

Coram

Case details

Similar cases

Khader Hayath Basha Vs Shahina Banu

Abdul Nafsal Vs the State by

Sri. Adukunhi @ Adam Kunhi Vs Sri. Ganaraja B

Mohammed Shafi Vs the State of Karnataka

Smt Shazia Tabassum Vs Mohammed Ishaq

Dr H Hanumareddy Vs Smt Laxmi