Sri. Abhishek Koddigahalli Vs Sri P Kishore Kumar

SRI. ABHISHEK KODDIGAHALLI AGED ABOUT 39 YEARS, S/O SRI. SRINIVAS KODDIGAHALLI R/AT NO.65, SREE NILAYA, 2^ND CROSS ROAD, OPP. FLORENCE PUBLIC SCHOOL, P & T LAYOUT, R.T.NAGAR, BENGALURU - 560032.

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…PETITIONER

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(BY SRI.B.V.MANJUNATHA GOWDA, ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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SRI P KISHORE KUMAR S/O SRI. PRADEEP AGED ABOUT 36 YEARS, NO. 352/1, 2^ND MAIN ROAD, 10^TH CROSS ROAD, SAMPIGE ROAD, MALLESHWARAM, BENGALURU - 560003.

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…RESPONDENT

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(BY SRI.S.V.SRINIVAS, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE ORDER DATED 06-03-2023 PASSED BY THE HONBLE LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH-60) IN CRIMINAL APPEAL NO.964/2022 AND ETC.,

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NC: 2025:KHC:16904 CRL.RP No. 421 of 2023

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI

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ORAL ORDER

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This petition filed under Section 397 r/w Section 401 of the Cr.P.C. is by the accused challenging his conviction and sentence imposed by the trial Court for the offence punishable under Section 138 of N I Act (for short N.I.Act), which came to be confirmed by the Sessions Court by dismissing the appeal filed by him.

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For the sake of convenience, parties are

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referred to by their ranks before the trial Court.

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Complainant filed a complaint under Section 200 Cr.P.C, alleging offence punishable under Section 138 of N.I Act, contending that he and accused are close friends being college mates. Accused is doing real-estate business in the name style "Aaryan Homes". In the second week of October 2018, he requested loan of

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Rs.10,00,000/- for improvement of his business. Agreeing for the same on 31.10.2018 complainant transferred Rs.10,00,000/- to the account of the accused through RTGS and he acknowledged the same.

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3.1 In this regard, the complainant and accused

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entered into loan agreement dated 31.10.2018, according to which accused promise to repay the loan within one year with interstate at the rate 24% p a. payable quarterly. Though he has paid two quarterly interest of Rs.54,000/- each, he failed to make subsequent payment.

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After expiry of one year, on the repeated request and demand by the complainant accused issued a cheque dated 31.05.2020, for Rs.12,72,000/- including the interest. However, when presented for encashment it was dishonoured for want of "sufficient funds". In this regard, complainant got issued legal notice to the accused. Despite service of notice, accused has neither paid the amount due nor sent any reply and hence the complainant.

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Accused resisted the proceedings by pleading

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not guilty.

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To prove the allegation against the accused, complainant got examined himself as PW-1 and relied upon Ex.P1 to 6.

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During the course of his statement under Section 313 of Cr.P.C the accused denied the incriminating evidence lead by the complainant.

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Accused has also given evidence as DW-1. No

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documents are marked on his behalf.

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The trial Court as well as Sessions Court

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accepted the contention of the complainant. The conviction and sentenced imposed by the trial Court is confirmed by

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the Sessions Court by dismissing the appeal filed by him.

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Aggrieved by the concurrent findings of the trial Court and Sessions Court, the accused is before this Court

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contending that the impugned judgment and order passed by the Court below are too harsh in the fact and circumstance of the case. The trial Court has not provided him sufficient opportunity to lead defence evidence and also cross-examine the PW-1. They have failed to appreciate the fact that there is no legally enforceable debt. The case of the complainant consist of number of discrepancy. The impugned judgment and order are illegal, arbitrary and without any authority of law and liable to be set aside and pray to allow the petition.

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On the other hand, learned counsel for the complainant submitted that in the light of the fact that the cheque is drawn on the account of the accused and it bears his signature, presumption under Section 139 of N.I Act is attracted placing initial burden on the accused to rebut the same. In fact, accused admit that he has borrowed Rs.10,00,000/- and claimed discharge, but fail to prove his defence and thereby rebut the presumption. Rightly, the trial Court and Sessions Court held that

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allegation against the accused are proved and there are no justifiable grounds calling for interference with concurrent findings and pray to dismiss the petition.

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Heard arguments of both sides and perused the record.

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As rightly submitted by the learned counsel for complainant, the accused admit borrowing of loan and claimed discharge. Though he also admit that the cheque in question is drawn on his account and it bears his signature and on presentation it is dishonoured for want of sufficient funds and the loan agreement Ex.P6 bears his signature, he has claimed that the cheque and stamp papers were given blank by way of security. In the light of the said admission and also the presumption under Section 139 of N.I Act, the initial burden is to prove that he has discharged the loan is on the accused.

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At the out set, it is relevant to note that despite service of the notice the accused has not sent reply spelling out his defence at the earliest available opportunity. It is also relevant to note that the complainant has transferred loan amount of Rs.10,00,000/- from his account to the account of accused.

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In fact, during the course of his crossexamination accused admitted that he has received loan amount of Rs.10,00,000/- though RTGS. Despite the same, unnecessarily the learned counsel for the accused has extensively cross-examined the complainant regarding his financial capacity. When the payment of loan amount is through account transfer, requirement of complainant proving his financial capacity would not arises. Moreover, the loan agreement at Ex.P6 corroborate with the case of the complainant and the admission given by the accused and the cheque at Ex.P1 is in consonance with terms of the loan agreement. Such being the case, the allegation

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that cheque and stamp papers given blank and later on they have been filed up to suit the convenience of the complainant is without substance.

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Now coming to the claim of the accused that he has discharged entire loan with interest. Though during course of his cross-examination, time and again accused has claimed that he is having documents to prove the said fact, they are not produced. Admittedly, after the alleged discharge of loan amount with interest, the accused has not insisted upon returning the cheque and loan agreement. He has also not instructed the bank to stop payment on the ground that the liability under the cheque is discharged. Therefore, this Court has no hesitation to hold that the accused has taken a false defence and failed to prove the same.

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It is pertinent to note that in the cheque accused is described as Proprietor. Therefore, it is argued by learned counsel for the accused that without arraigning

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the Concern, the complaint is not maintainable. Suggestiond are also made to PW-1 to this effect. In the complaint though the complainant has stated that the accused is running construction business in the name and style of 'Aryan homes', admittedly it is not a company or firm. The very fact that in the cheque drawer is described as Proprietor indicate that it is a Proprietory Concern. In fact it is the case of the complainant that loan in question is given to the accused in his individual capacity. As held by the Hon'ble Supreme Court in Raghu Lakshminarayan Vs Fine Tubes, (Raghu Lakshminarayan)¹ , a person may carry on business in the name of a Business Concern, but he being the Proprietor thereof would be solely responsible for conduct of its affair. Such being the case, it is not open to the accused to claim that without arraigning the proprietorship concern the complaint it is maintainable.

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1 2007 (5) SCC 103

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NC: 2025:KHC:16904 CRL.RP No. 421 of 2023

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Taking into consideration the oral and

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documentary evidence placed on record, both trial Court as well as the Sessions Court have rightly held that the allegations against accused are proved beyond reasonable doubt and convicted him. This Court finds no perversity in the findings and conclusions arrived at by them, calling for interference. In the result, the petition fails and accordingly, the following:

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ORDER

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Petition filed by the accused under Section 397 r/w 401 of Cr.P.C. is dismissed.

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The impugned judgment and order dated 21.07.2022 in CC.No.209/2021 on the file of Addl.Chief Metropolitan Magistrate, Bengaluru City and order dated 06.03.2023 in Crl.A.No.964/2022 on the file of LIX Addl. City Civil and Sessions Judge, Bengaluru (CCH-60) are hereby confirmed.

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The Registry is directed to send back the trial Court as well as Sessions Court records along with copy of this order forthwith.

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Sd/(J.M.KHAZI) JUDGE

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RR List No.: 1 Sl No.: 55

Sri. Abhishek Koddigahalli v. Sri P Kishore Kumar

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Sri. Abhishek Koddigahalli v. Sri P Kishore Kumar

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