Two criminal revision petitions against Section 138 NI Act convictions for dishonoured cheques of Rs.15,00,000/- and Rs.20,50,000/-. Accused contended cheques given as security were misused. High Court found no probable defence, dismissed revisions but reduced fine amounts to cheque amounts plus Rs.10,000/- each.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:13191 CRL.RP No. 96 of 2021 C/W CRL.RP No. 177 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 96 OF 2021
C/W
CRIMINAL REVISION PETITION NO. 177 OF 2021
IN CRIMINAL REVISION PETITION NO. 96 OF 2021:
BETWEEN:
…PETITIONER
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
(BY SRI VEERANNA G. TIGADI, ADVOCATE)
AND:
…RESPONDENT
(BY SRI JANARDHAN REDDY, ADVOCATE)
NC: 2024:KHC:13191 CRL.RP No. 96 of 2021 C/W CRL.RP No. 177 of 2021
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C. PRAYING TO ALLOW THIS CRIMINAL REVISION PETITION BY SETTING ASIDE THE JUDGMENTS PASSED BY THE HONBLE LEARNED ADDITIONAL CIVIL JUDGE AND JMFC AT DEVANAHALLI, IN CC.NO.1375/2009, ORDER DATED 04.02.2020 AND ETC.
IN CRIMINAL REVISION PETITION NO. 177 OF 2021:
BETWEEN:
…PETITIONER (BY SRI VEERANNA G. TIGADI, ADVOCATE)
AND:
…RESPONDENT
(BY SRI RAGHAVENDRA K., ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENTS DATED 12.09.2019 PASSED BY THE ADDITIONAL CIVIL JUDGE AND J.M.F.C., DEVANAHALLI IN CC.NO.1376/2009 AND ETC.
THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
and also the counsel for the respondent.
challenging the judgment of conviction and sentence passed in Section 138 proceedings. In both the cases, the complainants are different and the accused is same. In both the appeals, the Appellate Court confirmed the judgment of the Trial Court. Hence, these two Revision Petitions are filed before this Court.
humanitarian consideration, in order to help the accused at the hours of his urgency, on 11.06.2008, the complainant has paid an amount of Rs.15,00,000/- to the accused by way of cash and in turn the accused has undertaken to discharge the liability by first week of December-2008 without fail. Towards the discharge of his said legally enforceable liability, the accused has issued Cheque for an amount of Rs.15,00,000/-. The accused also assured the complainant that on presentation of the said Cheque, the same would be honored. When the complainant presented the Cheque for realization on 05.05.2009, Cheque was returned unpaid on 07.05.2009 with an endorsement that “Payment Stopped by Drawer”. Immediately the complainant got issued the notice on 06.06.2009 to the accused by RPAD and COP. He has given an untenable reply and failed to pay the amount. Hence, the complaint is filed. The complainant sworn statement was recorded by Trial Court, having considered the sworn statement, the Trial Court taken the cognizance and issued summons against the accused. The
complainant examined himself as PW1 and got marked Ex.P1 to Ex.P9 and he was subjected to crossexamination. In the cross-examination, he admits that he has studied up to S.S.L.C. He knows reading and writing of Kannada and English language. He also earns Rs.45,000/to Rs.50,000/- rental income and his income from agriculture is Rs.1,00,000/- per year. He is not having any other source of income. He has not produced any document to show that he is earning Rs.45,000/- to Rs.50,000/-. He admits that he knows Prakash and he belongs to same village and he is having acquaintance with Prakash. It is suggested that both of them discussed with regard to the financial transaction, the same was denied. He also says that the said Prakash has not advised him to make the payment. He volunteers that he himself has given the amount. It is suggested that when the accused demanded money from Prakash for purchase of the site, he expressed that he is not having any money and by that time, he told that he is having the money since he has sold the property and he would get the
money from him. Hence, he gave the money. The said suggestion was denied. When the money was paid, he demanded the documents and he himself, Prakash, accused and other two witnesses went to Chikkajala and purchased the stamp paper and prepared the document. The stamp paper was brought by the accused only. He admits that the accused gave the Cheque on 11.06.2008 dated 03.12.2008 i.e. Ex.P1 for security. He had not produced any document to show that he was having an amount of Rs.15,00,000/-. He admits that he is having knowledge about making of payment more than Rs.20,00,000/-, the same has to be paid through Cheque. In the further cross-examination he admits that the accused is a Diploma Holder of D.Pharmacy and suggestion was made that both the complainants have engaged the same advocate and he denies the same that he is not aware of the same. He admits that the amount was paid on 11.06.2008 and he gave the post dated Cheque. He admits that on 11.06.2008, accused was not due any amount to him. On 11.06.2008, there was no any
liability and there was no any need to obtain the Cheque. He admits that on 11.06.2008, he was having money to show that he is having the document. If there is a need, he is going to produce the same. When the suggestion was made that he did not demand any money from him for construction of house, but he says that he has obtained an amount of Rs.3,00,000/- from one Murthy and also in order to clear the said loan, he obtained an amount of Rs.1,50,000/- from Prakash. It is suggested that in order to clear the said loan, 6 Cheques are obtained and the same was denied. He admits that he came to know about initiation of case by said Prakash and suggestion was made that Prakash, out of 6 Cheques, one Cheque was given to him to file the case and the said suggestion was denied. He admits that the Cheque was presented twice. When the Cheque was presented and returned and he was informed to the accused. But, not communicated him through writing. In further cross-examination, he admits that on 11.06.2008, when he made the payment, he was having an amount of Rs.15,00,000/- in his account. When
the question was put to him that in Ex.P9 whether he was having Rs.15,00,000/- and he says that there was an entry in the document Ex.P9 and also he says that some amount was there in the house also. He was also an income tax assessee upto 2015 and he has not produced any document and no difficulty to produce the same. A suggestion was made that he is falsely deposing that he is having an amount of Rs.15,00,000/- in his account and the said suggestion was denied. The suggestion was made that only in order to prove that he was having money, he created the document Ex.P9 and the said suggestion was denied. On the other hand, the complainant was also examined PW2 and he says accused borrowed an amount of Rs.15,00,000/- from the complainant for the purpose of site purchase in his presence by way of cash and also by way of executing consent deed dated 11.06.2008 and accused has issued a Cheque for an amount of Rs.15,00,000/-. This witness was also subjected to crossexamination, he says that he knows the accused from last 20 years. He was not aware of earlier transaction between
accused and complainant prior to 11.06.2008. He admits the signature in Ex.P4. He has signed the said document at around 2.30 p.m., and amount was given in the house of the complainant while signing the said document, the said document was prepared at Chikkajala and by that time, the amount was not given. But, the amount was given in the house of complainant. He admits that if any document is created at that time, amount will be paid. At the time of signing the said document, he himself, accused, complainant and Harish and others were not there. No panchayat was made when the amount was not paid. The suggestion was made that no amount was paid to him and the said suggestion is denied.
same. He admits that Ex.P4 was signed in the house of complainant. But, he did not read the contents of the document and also he is not read the affidavit of his chief evidence. The accused is also examined as DW1 and he says that he has not made any transaction with the complainant and also no talks were held between both of them. But he is having acquaintance with him. He claims that Ex.P1-Cheque was given to the Prakash. He has availed an amount of Rs.1,50,000/-. He says that he has availed the amount from M.N.Murthy. Hence, to return the said amount, he had availed an amount of Rs.1,50,000/-. He had obtained 6 blank Cheques and also signatures on the two stamp papers and produced the Ex.D1 with the stamp paper. He says that he repaid the amount but Prakash demanded more interest and also he gave notice to him and Ex.D2 is marked and the said Prakash was not given any reply. The said Prakash out of 6 Cheques, presented two Cheques and another Cheque got presented through the complainant and also says that Prakash has given notice to him in terms of the Ex.D3. He gave the
NC: 2024:KHC:13191 CRL.RP No. 96 of 2021 C/W CRL.RP No. 177 of 2021
reply to the Ex.D3 and the same is marked as Ex.D4. The contents of Ex.D1 is not in his hand writing and false case has been registered against him. He was subjected to cross-examination and he admits that he is the owner of Dighvijaya Medical Store. He claims that the documents which have been produced by the complainant are false document and Ex.P4 is also confronted to him. He admits the signature Ex.P4(a) and Ex.P4(b) are belongs to him. He claims that he has signed the said blank paper and given to the Prakash. He suggested that he availed the loan from complainant on 11.06.2008 and he has given the Cheque in terms of Ex.P1. It is suggested first time when the Cheque was presented, the same was dishonored and hence he gave the instructions to re-present the same, the said suggestion was denied. It is suggested that on 11.06.2008 in order to purchase the site, he had availed the loan of Rs.15,00,000/- and given the Cheque in terms of Ex.P1, the said suggestion was denied. He admits the issuance of notice on 06.06.2009 and in the further cross-examination, he admits that he
gave the reply to the notice in terms of Ex.D5 and also admits the signature found in Ex.D1 and claims that he had signed on the blank Cheque and he also admits in Ex.P5, K.C.Narayanaswamy and also Harish have also signed, but claims that he do not know the contents of the document since he had signed empty stamp paper.
was returned with an endorsement “ Payment Stopped by Drawer “ and notice was given and accused has given untenable reply. The complainant also filed the compliant and sworn statement also recorded and thereafter the Trial Court took the cognizance and secured the accused. The accused did not plead guilty and hence, the complainant in his chief evidence he re-iterated the contents of complainant and he got marked the document Ex.P1 to Ex.P11. He was subjected to cross-examination. He admits in the cross-examination that he studied upto SSLC and he knows reading and writing Kannada and English language. He is an agriculturist and also having mobile shop and his income upto Rs.30,000/- per month and he is not having any document to show the same. He admits the issuance of notice and the same is handed over to his counsel and the document was confronted and he admits notice which is marked as Ex.P1, he also admits that in the month of October-2008, he was having Rs.20,50,000/- and to show the same, he has not produced any document and hence, the same is not
disclosed. He gave the money in the shop of the accused. At that time, one Ravi and Muniraju both were there. On the same day, accused gave Cheque and also signed the consent deed. He obtained the Cheque for security and his total income per year is Rs.5,00,000/-. He is not an income tax assessee. He is not having any document to show that he is having income of Rs.5,00,000/- per year. The document Ex.P7 was executed on the same day. While handing over the Cheque, he has mentioned the date as 12.12.2008. He has given the Cheque on 06.10.2008 itself and the same is also mentioned in the document Ex.P7. He also admits that he is having acquaintance with Murthy and Umesh and also knows about case filed by Murthy against the accused. He also admits that in Ex.P1 it is mentioned that to come and take the money of Rs.1,50,000/-. He admits that in Ex.D1, both the Cheque numbers are mentioned and he did not made any attempt to collect the amount of Ex.D1. He also admits that in Ex.D1 itself mentioned collecting of stamp papers. He admits that he has no any difficulty to examine Ravi and
Muniraju. It is suggested that he has not made the payment of Rs.20,50,000/- and the same was denied. However, he contend that he had availed an amount of Rs.1,50,000/- and the said suggestion was denied. Further suggestion was made that the accused is ready to pay an amount of Rs.1,15,000/- with interest and the same was denied and he claims that he was due for an amount of Rs.20,50,000/- and not for an amount of Rs.10,50,000/-. He admits that in order to make payment more than Rs.20,00,000/-, he has to make payment through the Cheque. He admits that the Ex.P1 and Ex.P2 are returned infront of the accused to pay himself and also admits the ink in both the Ex.P1 and Ex.P2 are different. The Ex.P7 was typed at Chikkajaala. The accused only brought the said Ex.P7 and suggestion was made that he did not execute the document Ex.P7, the same was denied. He admits Ex.P7 was not registered. He admits that an amount of Rs.20,50,000/- was not paid by way of Cheque or by way of D.D and also through RTGS. He did not obtain any other documents except the documents which
have been produced before the Court. He also admits that
in order to prove that he was having an amount of Rs.2,00,000/-, no documents are produced. He admits that after the issuance of notice in terms of Ex.D1, thereafter only he had presented the Cheques. He admits that he himself, Murthy and Umesh all are friends. It is suggested that when he made payment of Rs.1,50,000/he has obtained 6 Cheques, the said suggestion was denied. It is suggested that in order to return the said amount, it was agreed to return the same in 6 installments at rate of Rs.25,000/-, the said suggestion was denied.
The complainant was further examined and got marked document Ex.P12 to Ex.P15, he was subjected to further cross-examination and in further cross-examination on 03.10.2008, he himself and his mother were not having any joint account. He admits that on 03.10.2008, in Ex.P12 for having made the payment of Rs.5,00,000/- is mentioned. He cannot tell when remaining amount was remitted to his account. He is not having any document for having made the payment of Rs.2,20,000/-. The
suggestion was made that in Ex.P15 there was no any entry for withdrawing of amount of Rs.20,20,000/-, the same is admitted. He admits that in terms of Ex.P13 an amount of Rs.11,25,000/- was paid and the same is distributed to 15 persons. It is suggested that if it is distributed only, he will get Rs.75,000/- and the said suggestion was denied. He admits that in terms of Ex.P13, amount was not credited to his account. It is suggested that Ex.P12 to Ex.P15 are created and produced before the Court and the same is denied. He also examined PW2 – Ravi and he says he was present when the amount of Rs.20,50,000/- was borrowed and also deed of consent was executed. In the cross-examination he also admits the signature in Ex.P7(c). He was subjected to crossexamination and in the cross-examination he admits that there is some slight difference in signature in the chief evidence as well as in Ex.P7(C), but he gives an explanation that Ex.P7(c) was signed in urgency. He admits that he cannot tell on what date accused came and demanded the money with the complainant and also he
admits that in Ex.P7 his full details are not mentioned. He had signed the same in Vidyanagar Cross. He also admits that the complainant called him and hence, he came and gave evidence. He went at around 1.30 p.m., and he made an attempt to know the contents of Ex.P7. He cannot tell
on what date the amount was paid. On the date of transaction two Cheques are obtained and consent deed is also obtained, the said Cheque was signed by the accused and given to the complainant. The complainant himself has filled up the same. He had agreed to repay the amount within 2-3 months and the amount was paid in cash. He cannot tell how much amount was there when the payment was made.
the accused. He cannot tell how much amount was there when the payment was made. Complainant called him to make the signature in Ex.P7 and he identifies the signature as Ex.P7(b). He also says that amount was payable within 3-4 months, the same is not mentioned in Ex.P7. The amount was paid on when he had signed the document on Ex.P7 itself. But, he does not remember the date. Other than the document of Ex.P7, 2 Cheques are collected as security.
similarly in the case in which he gave the evidence in C.C.No.1375/2009 and an amount which he has received is Rs.1,50,000/- repayable in 6 installments at the rate of Rs.25,000/-. He was subjected to cross-examination, he admits that he is having provision store and also he did B.Pharmacy and he is also the owner of the provision store and also the owner of Medical Store. He admits the issuance of notice dated 06.06.2009 and the same was served on him. He admits the signature in Ex.P1 and P2. It
is suggested that he has availed an amount of
Rs.20,50,000/-, the same was denied. It is also suggested that on 06.10.2008, he also signed consent deed, but he claims that he has obtained the signature on the blank Stamp paper. It is suggested that when the Cheque was presented first time, the same was returned and he told him to re-present the same. He admits that he has not produced the receipt for having given the notice on 02.05.2009, but he claims that he has given the same to his Advocate. It is suggested that he is falsely deposing that he is only liable for an amount of Rs.1,50,000/- and not Rs.20,50,000/-, the said suggestion was denied. It is suggested that he gave only the Cheques Ex.P1 and Ex.P2 and not given any six Cheques, the said suggestion was denied, but he claims that he has given six Cheques.
Rs.1,50,000/- from one Prakash not an amount of Rs.20,50,000/- from him as well as he has not availed an amount of Rs.15,00,000/- from one Umesh that is the complainants in the respective petitions. It is the contention of the revision petitioner is that the said Prakash had obtained six Cheques and also obtained the signatures on the blank stamp papers by lending the money of Rs.1,50,000/- and those Cheques and stamp papers were misused. The counsel also would vehemently contend that notice was issued for the first time on 06.06.2009 before that notice was given to the complainant on 02.05.2009 also and there is an admission on the part of the petitioner that the complainant has received the notice. Hence, the case of the revision petitioner is probable that only an amount of Rs.1,50,000/- was lent and not Rs.20,50,000/-.
petitioner. The specific contention of the revision petitioner that out of six Cheques, one Cheque was given to Umesh-complainant and misused the said Cheque. The counsel would vehemently contend that in the complaint it is mentioned as an amount of Rs.1,50,000/- and later it was re-writed as Rs.15,00,000/-. Hence, it is clear that the very case of the complainant is doubtful and answer elicited from the mouth of the witnesses of this complainant is very clear that transaction is only to the tune of Rs.1,50,000/-.
and the counsel referring this judgment brought to notice of this Court to the principles held in the judgment that if after the Cheque is issued to the payee or to the holder in
due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the Cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted. In the case on hand also the counsel would vehemently contend that after issuance of notice only, Cheque was presented.
title and Section 54 of the Transfer of Property Act. It is also discussed that in the event of non-payment of price (or balance price as the case may be) therefore, the remedy of the vendor is only to sue for the balance price.
counsel contend that the Cheque was admitted and transaction also admitted but defence is that only an amount of Rs.1,50,000/- was received. The counsel also would vehemently contend that no document is produced before the Court to show that notice was issued on 02.05.2009 itself i.e., postal receipt or acknowledgment for having served the notice on 02.05.2009. If any amount has been paid through Cheque, the same has to be declared in the income tax but the very contention that same has not been shown in the income tax declaration. The counsel referring the judgment of KALIAPERUMAL’s case (referred supra) (which relied by the counsel for the petitioner) would contend that the said judgment is not applicable to the facts of the case on hand and same is in respect of civil case only in case of non-payment of balance price, then the remedy is to recovery for balance payment and hence, the said judgment is not applicable to the facts of the case on hand.
vehemently contend that the judgment which have been referred by the counsel for the revision petitioner in the case of ELECTRONICS TRADE AND TECHNOLOGY DEVELOPMENT CORPN. LTD (referred supra) was overruled by the judgment of the Apex Court reported in
1998 AIR SCW 842 in the case of M/S MODI CEMENTS LTD vs KUCHIL KUMAR NANDI and brought to notice of this Court paragraph 15 wherein also referring the very same judgment, the Apex Court held that suppose after the Cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the Cheque to the Bank for payment and when it is returned on instructions, Section 138 does not get attracted is accepted as good law, the very object of introducing Section 138 in the act would be defeated. The counsel would contend that the said judgment is very clear that the earlier judgment is overruled and the same is also
mentioned in the very judgment itself. Hence, judgment relied upon by the petitioner in ELECTRONICS TRADE
AND TECHNOLOGY DEVELOPMENT CORPN. LTD’s case (referred supra) is not applicable to the facts of the case on hand.
pointing to materials produced by complainant himself or cross-examining witnesses of complainant, Court has to decide by appreciating totality of evidence. Further held that however is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. Section 139 of the NI Act is an example of reverse onus, and the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As
to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist. The counsel also brought to notice of this Court that in this judgment, in paragraph 3, the said fact is also discussed. The counsel also brought to notice of this Court the discussion made in paragraph 7 wherein discussed with regard to either in the reply notice or in 313 statement taken the contention that he was not having any financial
capacity to give the hand loan. The Apex Court also discussed that he further ends by saying that the appellant
does not have a case regarding the capacity of the respondent to loan the amount which remained after deducting the amount referable to the withdrawal from the bank. He further would contend that Court may bear in mind that three Courts have held against the appellant and no case is made out for reference. The counsel also brought to notice of this Court paragraph 8 wherein also discussed with regard to the probable defence is concerned and an observation is made that in an earlier judgment, in fact, which has also been adverted to in BASALINGAPPA’s case, this Court notes that Section 139 of the NI Act is an example of reverse onus (see Rangappa vs Mohan case also). It is also true that this Court has found that accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on
the facts of each case on the conspectus of evidence and circumstances that exist. The counsel also brought to notice of this Court paragraph 10 wherein also discussion was made with regard to the making out the probable case. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence. The counsel referring this judgment would vehemently contend that when the defence was taken during the course of cross-examination, the complainant produced the document of Ex.P12 to P15 to show that there was a sale transaction prior to the loan transaction and power of attorney also produced as Ex.P14 and apart from that Ex.P15 passbook is also produced.
Rs.45,00,000/- and though denied by the petitioner that no such transaction was made and the same is created, no probable case is made out by the revision petitioner.
the judgments referred supra and also the contentions of the respective parties, it is not in dispute that cheque in both the cases at Ex.P1 and P1 and P2 respectively bears the signature of the revision petitioner. It is also important to note that in both the cases even consent deed is also produced at Ex.P7 and P4 respectively. The accused also not disputes the consent deed at Ex.P7 and P4 but his only contention that blank stamp papers were taken at the time of lending the loan. It has to be noted that it is the contention of the accused that he gave six blank cheques in favour of the complainant-Prakash and out of the said six cheques, one cheque was given to the Umesh. But the fact is that the accused is a D.Pharma holder and that is not disputed and he is also an educated one and doing the business. It is his case that an amount
of Rs.1,50,000/- was lent for purchase of the property and not availed Rs.20,50,000/- by the complainant -Prakash for his commitment and also for the business purpose. When Ex.P1 in one case and Ex.P1 and P2 in another case issued and also even the stamp papers are also signed according to him, what made him to execute the blank stamp papers being an educated one but no explanation is given by the accused in this regard.
PW3 in both the cases with regard to doubting of execution of documents at Ex.P4 and P7.
ELECTRONICS TRADE AND TECHNOLOGY
DEVELOPMENT CORPN. LTD (referred supra), if notice was given prior to presentation of the cheque, Section 138 does not attract and the said judgment is overruled by the
Apex Court in the judgment of M/S. MODI CEMENTS LTD., (referred supra) hence, the judgment of ELECTRONICS TRADE AND TECHNOLOGY
DEVELOPMENT CORPN. LTD (referred supra) relied upon by the counsel for the petitioner will not help to the petitioner. It is also important to note that in terms of Ex.P4, cheques were presented on 02.05.2009 and no doubt, the counsel for the revision petitioner also brought to notice of this Court that the notice was issued on 02.05.2009. In order to prove that on particular date, the
said notice was issued but postal receipt or postal acknowledgment in that regard has not been produced. The very admission that the said notice is dated 02.05.2009 is not a ground to disbelieve the case of the complainant.
judgment in the case of TEDHI SINGH (referred supra), the Apex Court held with regard to the probable defence is concerned. In the case on hand, except examining the accused himself as DW1 in both the cases, no other material is placed before the Court. It is also settled law that ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.
is dated 28.07.2006 also discloses that prior to the said loan transaction, there was a sale consideration of Rs.11,25,000/-. No doubt, there is an admission on the part of PW1 that if it is bifurcated to the total members of the sellers, it comes to Rs.75,000/- and suggestion was made that he has received only Rs.75,000/- but said suggestion was denied. It is also important to note that power of attorney in terms of Ex.P14 executed on 15.11.2007 that is also in respect of property bearing Sy.No.35 measuring 4 guntas in favour of one Surya Kumar that is executed by the family members of the complainant-Prakash.
his case with regard to the defence is concerned that the complainant was not having any capacity. All these documents are prior to the loan transaction. Apart from that it is rightly pointed out by the counsel for the respondent that when the reply notice was given in terms of Ex.P11, no such defence was taken that he was not having any capacity and for the first time only while cross examining the witnesses, said defence was taken. The counsel for the complainant also read the entire notice, but nowhere it is contended that he was not having any capacity except mentioning that only transaction was for Rs.1,50,000/-. Hence, what made the petitioner to give six cheques and also execute the blank papers when he has only received an amount of Rs.1,50,000/-, but, no explanation in this regard hence, the petitioner not probabilised the case as held by the Apex Court in TEDHI SINGH’S case (referred supra). No doubt, the Apex Court also not overruled the judgment of BASALINGAPPA’S case (referred supra). But the same is reiterated and held that ultimately the Court has to take note of the fact of
each case while considering the capacity is concerned. When such being the case, the material available on record is very clear that there was a transaction between them and there is a clear admission on the part of the accused for having signed in both Ex.P1 and P1 and P2 respectively in both the cases and also consent deed is
also marked and consent deed witnesses were also examined as PW2 and PW3. When such being the case, even bank statement also produced before the Court that is passbook which is marked as Ex.P15. Though a passbook is not available before the Court but the counsel appearing on behalf of the accused also cross examined the witnesses with regard to the Ex.P15 passbook is concerned and his only contention is that the same is created one. The registered document cannot be created and apart from that Ex.P15 though not available before the Court to show that there was transaction in respect of amount of Rs.47,00,000/- as contended by the accused counsel, the evidence of the complainant has not been rebutted by the revision petitioner. Hence, having
considered the material available on record and in the absence of any probable defence by the accused, the question of interfering with the findings of both the Courts does not arise. Both the Courts taken note of admitted document at Ex.P1 in one case and Ex.P1 and 2 in another case that is the cheque as well as the consent deed at Ex.P7 and P4 respectively and apart from that the document Ex.P15 i.e., the bank passbook with regard to the transaction made by the complainant, while passing the order also taken note of the defence taken by the accused wherein he contended that the complainant has no capacity, it is rightly pointed out that in the first instance when the reply was given, no such defence was given and also in 313 statement also not taken such defence. Hence, the case of the complainant is more probable than the case of the accused. Thus, I do not find any merits to interfere with the findings of the Trial Court as well as the First Appellate Court. The scope of revision is very limited and when material available on record has not been considered in a proper perspective, under such
circumstances, the revisional Court can exercise its powers. But in the present petitions, I do not find any error on the part of the First Appellate Court as well as the Trial Court in considering the material available on record. There is no merit in both the revision petitions.
making payment is not evident from any records but claimed the capacity by adducing evidence. Hence, it is appropriate to order for only Cheque amount.
ORDER
i) The revision petitions are dismissed . ii) In C.C.No.1376/2009, in respect of
Rs.30,00,000/- fine amount is concerned, it is reduced to Rs.20,50,000/i.e., Cheque amount and in C.C.Nol.1375/2009, in respect of Rs.20,00,000/- fine amount is concerned, the same is reduced to Rs.15,00,000/- i.e., Cheque amount. The revision petitioner is directed to pay fine amount of Rs.10,000/- in each case within a period of 4 weeks from the date of the order and the same shall vest with the State.
Sd/JUDGE
RHS/SN List No.: 1 Sl No.: 30
2 issues framed by the court
Whether the conviction under Section 138 NI Act should be interfered with where the accused claimed only Rs.1,50,000/- was lent and blank cheques were misused?
Whether the accused established a probable defence regarding the complainants' financial capacity to lend Rs.15,00,000/- and Rs.20,50,000/-?
Colour shows how this judgement treated each authority
Basalingappa vs MudibasappaRelied on¶11
(2019) 5 SCC 418 · Who else cites this
Kaliaperumal vs RajagopalDistinguished¶12
(2009) 4 SCC 193 · Who else cites this
M/S Modi Cements Ltd vs Kuchil Kumar NandiApplied¶14
1998 AIR SCW 842 · Who else cites this
Tedhi Singh vs Narayan Dass MahantRelied on¶15
(2022) 6 SCC 735 · Who else cites this
2 provisions across 1 enactments
Sri Anil Kumar M.R.
Sri Umesh P.
Sri Prakash M.P.
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
