Dismissed

K M Shanmugam v. Chaitresh M

Karnataka HC17 Aug 2023CRL.RP/853/2015

Case brief

AI extract

What is this about?

This criminal revision petition challenged a conviction for cheque dishonour under Section 138 NI Act. The High Court dismissed the petition, holding that the lower courts correctly convicted the accused as the statutory presumption was not rebutted by the offers.

What did the court decide?

Revision petition stands dismissed affirming the conviction and sentence.

K M Shanmugam Vs Chaitresh M — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC:29387 CRL.RP No. 853 of 2015

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

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THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR CRIMINAL REVISION PETITION NO. 853 OF 2015

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BETWEEN:

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K M SHANMUGAM

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S/O K.M.MUTHUSWAMY GOWNDER,

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AGED 72 YEARS, PARNTNER M/S. J.K.ENGINEERING & CO. LTD. MALAIKARA THOTAM, KARATUR RANGASAMUDRAM VILLAGE, SATHYAMANGALAM POST, PERIYAR DIST. TAMIL NADU-638 402.

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..PETITIONER

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(BY SRI. SREENIVASAN M Y., ADVOCATE)(VC)

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AND:

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Digitally signed by RENUKAMBA K G

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Location: High Court of Karnataka

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CHAITRESH M S/O LATE H MALLESH, AGED ABOUT 28 YEARS, R/O INDAVALU VILLAGE AND POST, KOTHATHI HOBLI, MANDYA TQ AND DIST-571 410. …RESPONDENT

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(BY SRI. G D ASHWATHNARAYANA AND SRI. G.A. MITHUN., ADVOCATE)(PH)

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CRL.RP FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT DATED 20.6.2015 PASSED BY THE II ADDL. S.J., MANDYA IN CRL.A.NO.28/2011 AND SET ASIDE THE JUDGMENT OF CONVICTION DATED 11.4.2011 PASSED BY THE J.M.F.C.-I, MANDYA IN C.C.NO.1113/2003.

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NC: 2023:KHC:29387 CRL.RP No. 853 of 2015

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THIS PETITION, COMING ON FOR HEARING, 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 read with Section 401 of Cr.PC challenging the judgment of conviction and order of sentence passed by the JMFC, Mandya in CC No.1113/2003 dated 11.04.2011 and confirmed by II Additional Sessions Judge, Mandya in Crl.Appeal No.28/2011 dated 20.06.2015.

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For the sake of convenience, 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 is an agriculturist having sufficient income. The accused was got introduced to the complainant by the uncle of the complainant Sri Kempaiah and Giddaiah. As per the request of the accused, the complainant advanced a loan of Rs.2,25,000/- to the accused. The accused has agreed to repay the loan within two months but, he failed to repay the loan amount and when the complainant insisted, the accused has issued a cheque for Rs.2,25,000/- dated 02.01.2003. When the

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3 - NC: 2023:KHC:29387 CRL.RP No. 853 of 2015

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said cheque came to be presented, it was dishonoured for **_insufficiency of funds_** '. Thereafter, the complainant got issued legal notice and as the accused did not respond, a complaint came to be filed under Section 200 of Cr.PC for the offence under Section 138 of Negotiable Instruments Act, 1881 (in shortthe Act').

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The learned Magistrate on taking cognizance of offence, issued process to the accused. The accused appeared through his counsel and he was enlarged on bail.

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The prosecution papers were furnished to the accused and he has denied the accusation. The complainant got examined himself as PW.1 and he placed reliance on 13 documents which were marked as documents Ex.P1 to P13. After conclusion of the evidence of the complainant, the statement of accused was recorded under Section 313 of Cr.PC and his case was of total denial. Further he asserted that he has seen the complainant for the first time in the Court and he is not conversant with the complainant. Further, the accused got himself examined as DW.1 and also got examined DW.2 and 3 and further relied upon 17 documents as Ex.D1 to D17.

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NC: 2023:KHC:29387 CRL.RP No. 853 of 2015

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The learned Magistrate, after hearing the arguments and after appreciating the oral and documentary evidence on record, has convicted the accused under Section 138 of NI Act by imposing sentence of fine along with compensation.

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Being aggrieved by this Judgment of conviction and order of sentence, the accused has approached the learned II Additional Sessions Judge, Mandya in Criminal Appeal No.28/11. The learned Sessions Judge, after re-appreciating the oral and documentary evidence has dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the trial Court. Being aggrieved by these concurrent findings, the accused is before this Court by way of this revision.

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Heard the arguments advanced by the learned counsel for the revision petitioner-accused and learned counsel for respondent-complainant and perused the record.

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The learned counsel for the revision petitioner would contend that the complainant had no financial capacity to advance the loan as he was a student when the alleged transaction has taken place. Hence, he would contend that the

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NC: 2023:KHC:29387 CRL.RP No. 853 of 2015

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presumption under Section 139 of the Act is not available in favour of the complainant. He would further assert that the accused had transaction with the uncle of the complainant by name Giddaiah and he has also paid the interest to the wife of Giddaiah and his defence is very probable. Hence he would submit that both Courts below erred in convicting the accused for the offence under Section 138 of the Act. Hence, he would seek for allowing the revision by setting aside the impugned judgments of both the Courts below.

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Per contra, the learned counsel for the respondent would support the judgment of conviction and order of sentence passed by both the Courts below. He would contend, in the reply notice, the financial status of the complainant was not at all denied and the cheque as well as signature on the cheque have been admitted and hence presumption under Section 139 of Act is in favour of the complainant. He would also assert that the accused has failed to raise any probable defence and hence, the presumption is not rebutted and as such, both Courts have properly appreciated the oral and documentary evidence in detail and convicted the accused. He would also contend that the judgment of conviction and order

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of sentence of both the Courts below do not suffer from any perversity so as to call for interference by this Court.

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Having heard the arguments of the learned counsel

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for the parties and on perusing the records, now the following point would arise for my consideration:

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" Whether the judgment of conviction and order of sentence passed by the trial Court and affirmed by the first appellate Court are perverse, arbitrary and illegal so as to call for interference by this Court ."

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It is the specific contention of the complainant that accused has borrowed a sum of Rs.2,25,000/- from the complainant in November 2002 agreeing to repay the same in two months. When demand was made by the complainant, cheque was issued for Rs.2,25,000/- which was dishonoured for insufficiency of funds. It is the specific defence of the accused that he has borrowed the loan from one Giddaiah through his brother Kempaiah for agriculture purpose and Giddaiah has received a blank cheque and `On demand promissory note' as a security and the same has been misused by the complainant. Admittedly, the cheque belongs to the accused and it bears his signature. A notice was also issued by the complainant and the same was replied by the accused. In his

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NC: 2023:KHC:29387 CRL.RP No. 853 of 2015

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reply notice, accused has no where disputed the financial status of the complainant to advance the loan. For the first time, before the Court, the accused tried to set up a defence that the complainant being a student, was not financially sound to advance the loan.

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However, the complainant got examined as PW.1 and he was cross-examined elaborately. In the cross-examination of the complainant, it is elicited that the father of the complainant died in 1997 when the complainant was studying PUC. He has also admitted that when he was minor, all the family affairs were taken care of by his mother. Further, he specifically asserts that now he is doing agricultural operations and he has produced the document to show that the family is owning agricultural lands. Apart from that, in the crossexamination of PW.1, a fatal suggestion has been made to the complainant stating that cheque was issued to him only for the purpose of 2 months which he virtually admits the entire case of the complainant. Now it is not open for the accused to again dispute the transaction.

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The specific contention of the accused is that he has availed the loan from the uncle of the complainant by name Giddaiah and he has also paid interest to the wife of Giddaiah. In this regard, he has relied on certain documents marked as Exs.D1 to D18, but, however, they do not establish that the said transaction pertains to the transaction with the complainant.

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In the cross-examination, DW.1 i.e. accused has admitted that he has availed loan from the no. of persons including Giddaiah. He admits that in respect of misuse of the cheque, he has not prosecuted and he has not issued any legal notice to Giddaiah. He has also admitted that he did not demand the documents.

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Considering the cross-examination of DW.1, it is clear that defence set up by the accused is not a probable defence so as to rebut the presumption available in favour of the complainant. The evidence on record establish that the accused has availed a loan of Rs.2,25,000/- from the complainant and in discharge of the said debt, he has issued a cheque which was admittedly dishonoured for insufficiency of funds.

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NC: 2023:KHC:29387 CRL.RP No. 853 of 2015

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Both the courts below have appreciated the oral and documentary evidence in detail and rightly convicted the accused by imposing reasonable sentence. No perversity or illegality is found in the judgment of conviction and order of sentence passed by the trial Court and affirmed by the first appellate Court, so as to call for interference by this Court. As such, the point under consideration is answered in the negative. Hence, the appeal being devoid of any merit does not

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survive for consideration.

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Accordingly, I proceed to pass the following order:

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Revision Petition stands dismissed.

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Sd/JUDGE

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Sk/-

K M Shanmugam v. Chaitresh M

Case brief

What is this about?

What did the court decide?

K M Shanmugam v. Chaitresh M

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

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