Dismissed

D. Venkatesh Reddy v. Vinay. M. N. Swamy

Karnataka HC15 Oct 2024CRL.RP/590/2022

Case brief

AI extract

What is this about?

Conviction under Section 138 NI Act with fine of Rs.6,10,000/- was confirmed by the first appellate court; the revision petition challenging it was dismissed as the accused failed to rebut the presumption or prove cheque misuse or forgery of signatures.

What the court decided

AI extract

D. Venkatesh Reddy Vs Vinay. M. N. Swamy — Money Laundering | Karnataka HC (2024)

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NC: 2024:KHC:41826 CRL.RP No. 590 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 590 OF 2022

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BETWEEN:

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D. VENKATESH REDDY, S/O DASA REDDY, AGED 53 YEARS, R/AT KATHRIGUPPE MAIN ROAD, BANASHANKARI, BANGALORE - 560 085.

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…PETITIONER

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(BY SRI. ALEEM SHARIEFF , ADVOCATE FOR SRI. KARUMBAIAH T.A., ADVOCATE)

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AND:

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Digitally signed by MALATESH VINAY M. N. SWAMY, K C S/O M.N. SWAMY, Location: AGED 39 YEARS, HIGH COURT OF R/AT 66/A, 5^TH MAIN, KARNATAKAP AND T COLONY, SANJAYNAGAR, BANGALORE - 560 094.

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…RESPONDENT

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(BY SRI. G.M.SRINIVASAREDDY., ADVOCATE)

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THIS CRL.R.P. IS FILED U/S.397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 15.02.2022 PASSED BY THE LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN CRL.A.NO.371/2020 AND ALSO THE JUDGMENT AND ORDER DATED 17.01.2019 PASSED

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NC: 2024:KHC:41826 CRL.RP No. 590 of 2022

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BY THE XVIII ADDL.C.M.M., BENGALURU IN C.C.NO.27789/2016 AND ACQUIT THE PETITIONER.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri Aleem Sharieff for Sri Karumbaiah and Sri G M Srinivas Reddy.

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Accused who suffered an order of conviction in CC No.27789/2016 for the offences punishable under Section 138 of the Negotiable Instruments Act and ordered to pay a fine of Rs.6,10,000/- (Rupees Six Lakh Ten Thousand only). Out of which a sum of Rs.6,00,000/- is ordered to be paid as compensation and Rs.10,000/- towards the defraying expenses of the State, confirmed in Crl.A. No.371/2020, has preferred this revision petition.

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Facts in brief which are utmost necessary for disposal of the revision petition are as under:

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A complaint came to be lodged under Section 200 Cr.P.C. by the respondent herein against the revision petitioner contending that accused is in the business of real estate and for

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NC: 2024:KHC:41826 CRL.RP No. 590 of 2022

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the land development business, he borrowed a sum of Rs.5,00,000/- (Rupees Five Lakh only) as loan from the complainant with a promise to repay the same within a period of six months and issued post dated cheques towards the repayment. Even after the lapse of six months, since there was no payment, complainant demanded the payment and at that juncture accused requested six more months' time to clear the dues. Since there was no repayment, cheques were presented, which has been dishonored with an endorsement 'Drawer signature differs'. A legal notice was caused by the complainant and there is no compliance to the callings of the notice nor reply even though the notice is duly served. Therefore, complainant sought for action against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

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Pursuant to the summons issued by the learned trial Magistrate after taking cognizance of the offence, accused appeared before the Court and engaged the services of an advocate. Plea was recorded. Accused pleaded not guilty. Therefore, trial was held.

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NC: 2024:KHC:41826 CRL.RP No. 590 of 2022

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In order to prove the case of the complainant, complainant got examined himself as PW.1 and placed on record 11 documentary evidence which were exhibited and marked as EXs.P1 to P.11.

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In the cross examination of the complainant, except suggesting that the cheque has been misused which has been denied by the complainant, no other positive material is elicited so as to disbelieve the version of the complainant.

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Thereafter, accused statement as is contemplated under Section 313 Cr.P.C. was recorded by the learned trial Magistrate, wherein accused has denied all the incriminatory materials.

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Subsequent thereto, accused in order to dislodge the presumption available to the complainant under section 138 of the Negotiable Instruments Act, got examined himself as DW.1 and did not place any material documents to support his version.

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In his cross examination, it has been elicited that the cheques has been sent to the complainant by the accused

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NC: 2024:KHC:41826 CRL.RP No. 590 of 2022

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through his employee by name Manju in the last week of April, 2016.

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On conclusion of recording of evidence, learned trial Magistrate heard the parties in detail and on considering the oral and documentary evidence placed on record, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered to pay fine of Rs.6,10,000/- (Rupees Six Lakh Ten Thousand only) and with a default sentence of imprisonment of six months. Out of the fine amount, a sum of Rs.6,00,000/- (Rupees Six Lakh only) was ordered to be paid as compensation and balance sum of Rs.10,000/- (Rupees Ten Thousand only) was ordered to be utilized for the defraying expenses of the State.

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Being aggrieved by the same, accused preferred an appeal before the District Court in Crl.A. No.371/2020. Learned Judge in the First Appellate Court after securing the records heard the parties in detail and dismissed the appeal by judgment dated 15.02.2022.

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Thereafter the accused is before this Court in this revision.

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NC: 2024:KHC:41826 CRL.RP No. 590 of 2022

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Learned counsel for the revision petitioner reiterating the grounds urged in the petition vehemently contended that there is a emphatic denial of the signature in Ex.P1 and P7 which are the cheques which has been issued by the accused towards the security of borrowing a sum of Rs.1,00,000/- (Rupees One Lakh only) which has been repaid, burden was on the complainant to establish that the cheques were in fact issued for the purpose of repayment of the alleged loan of Rs.5,00,000/- (Rupees Five Lakh only) and therefore, the conviction order recorded by the learned trial Magistrate confirmed by the first appellate court suffers from great injustice and resulted in miscarriage of justice and sought for admitting the revision petition for further consideration.

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Per contra, Sri Srinivasa Reddy, learned counsel representing the respondent supports the impugned judgment. 16. Having heard the parties in detail this Court perused the material on record meticulously. On such perusal of the material on record, it is not in dispute that the cheques marked at EXs.P1 and P7 have reached the hands of the complainant through the employee of the revision petitioner,

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NC: 2024:KHC:41826 CRL.RP No. 590 of 2022

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namely Manju. No doubt, DW.1 in his evidence has specifically stated that the signature found in EXs.P1 and P7 are not his signatures. But that itself would not be sufficient enough to hold that the cheques were not issued by the accused towards the repayment of the loan amount.

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When once the complainant has stepped into the witness box and marked the cheques at EXs.P1 and P7 and has stated that the same were issued towards the repayment of the loan amount, and the same is controverted by the accused by stating that he had borrowed only a sum of Rs.1,00,000/(Rupees One Lakh only) which he repaid, initial burden cast on the complainant to raise the presumption under section 139 of the Negotiable Instruments Act stood discharged.

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It is for the accused to establish that the cheques were misappropriated or misused by the complainant which was given as security towards the hand loan of Rs.1,00,000/(Rupees One Lakh only). No material evidence on record is placed either towards the repayment of sum of Rs.1,00,000/(Rupees One Lakh only) or any positive action has been taken by the accused in respect of alleged misuse of the cheques. No

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NC: 2024:KHC:41826 CRL.RP No. 590 of 2022

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prudent person would allow a valuable security being misused, not to take any positive action, especially when he had the services of an advocate, when once the accused has appeared before the trial Court.

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Therefore, contentions urged on behalf of the accused, that the complainant cannot take advantage of the presumption under Section 139 of the Negotiable Instruments Act cannot be countenanced in law.

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Further, nothing prevented the accused to send the cheques for Hand Writing Expert to establish that the signatures found in the EXs.P1 and P7 is not the signature of the accused. In the absence of any such effort made by the accused either before the trial Magistrate or before the first appellate Court, having regard to the scope of the revisional jurisdiction, this Court cannot countenance such a ground to admit the revision petition for further consideration.

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Under such circumstances, the following order is passed.

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9 - NC: 2024:KHC:41826 CRL.RP No. 590 of 2022

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ORDER

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(i) Revision grounds are merit less. Accordingly, admission declined.

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(ii) Consequently, revision petition is dismissed .

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Sd/(V SRISHANANDA) JUDGE

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YKL List No.: 1 Sl No.: 38

D. Venkatesh Reddy v. Vinay. M. N. Swamy

Case brief

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D. Venkatesh Reddy v. Vinay. M. N. Swamy

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