Sri Srinivasagowda Vs Sri Thippegowda

SRI SRINIVASAGOWDA S/O KEMPAIAH, AGED ABOUT 40 YEARS, OCC: BUSINESS R/AT HOUSE NO. 479 VIJAYANAGAR 1^ST PHASE, BEHIND CORPORATION BANK, MYSURU - 570 001.

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…PETITIONER

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(BY SRI. PRAKASH M PATIL, 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 THIPPEGOWDA S/O HUTCHEGOWDA AGED ABOUT 57 YEARS, R/AT SEETHAPURA VILLAGE CHINAKURULI HOBLI PANDAVAPURA TALUK MYSURU DISTRICT - 573 414

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…RESPONDENT

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(BY SRI. C SHANKAR REDDY, ADVOCATE)

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THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED IN

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CRL.A.NO.5017/2019 DATED 20.01.2020 FOR THE OFFENCE P/U/S.138 OF NI ACT, ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA (SITTING AT SRIRANGAPATNA) AND THEREBY CONFIRMING THE CONVICTION AND SENTENCE THAT THE PETITIONER TO PAY A FINE OF RS.13,74,000/- IN C.C.NO.1036/2018 IN DEFAULT TO SUFFER SI FOR 6 MONTHS, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND J.M.F.C., PANDAVAPURA AND ALLOW THIS CRIMINAL REVISION PETITION.

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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 401 Cr.P.C, is by the accused challenging his conviction and sentence for the offence punishable under Section 138 of the Negotiable Instrument Act imposed by the trial Court, 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

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200 Cr.P.C against the accused alleging that towards

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re-payment of hand loan of Rs.13,64,000/- accused issued two cheques i.e, cheque dated 07.08.2007 for Rs.8,64,000/- and dated 07.09.2007 for Rs.5,00,000/-. However, when presented for realisation, they were returned dishonoured for want of sufficient funds. On the directions of the accused, complainant re-presented them. However, on the second time also, they were returned dishonoured for want of sufficient funds. Complainant got issued legal notice dated 05.11.2007. Despite due service of the notice, the accused has neither paid the amount nor sent any reply and hence the complaint.

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Accused appeared through counsel and disputed the allegations made against him by pleading not guilty.

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In order to prove the allegations against

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accused, the complainant has examined himself as PW-1 and relied upon Exs.C1 to 15.

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During the course of his statement under Section 313 Cr.P.C, the accused has denied incriminating evidence lead against him.

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In fact, he has also given evidence as DW-1 and relied upon Exs.D1 to 10.

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The trial Court rejected the defence of the accused. In the light of the presumption under Section 118 and 139 of the N.I Act and the evidence led by the complainant, the trial Court convicted accused.

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Accused challenged his conviction and sentence

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before the Sessions Court by way of appeal. It also came to be dismissed.

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Aggrieved by the concurrent findings of the trial Court and Sessions Court, accused has come up with this revision contending that the judgment of conviction and sentence passed by the trial Court as well as the Sessions Court are contrary, arbitrary and not maintainable either in law or on facts. Both Courts have erred in appreciating the evidence placed on record. They have also failed to appreciate the citations relied upon by the accused. They

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have failed to appreciate that the cheque in question belongs to S.K.Sreenivasa and company, but the company

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is not made as party. In the absence of the company, complaint cannot be proceeded against accused and hence the petition.

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In support of his arguments learned counsel for petitioner has relied upon the following decisions:

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(i) B.Girish Vs. S.Ramaiah ( Girish )¹

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(ii) Aneeta Hada Vs. Godfather Travels and Tours Private Limited ( Aneeta Hada )²

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(iii) Anil Gupta Vs. Star India Private Limited and Anr. ( Anil Gupta )³

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(iv) Ramdas S/o Khelu Naik Vs,. Krishnanand S/o Vishnu Naik ( Ramdas )⁴

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On the other hand learned counsel for

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complainant supporting the impugned judgment and order submitted that the loan in question was availed by the accused in his personal capacity and the cheques in question are standing in the name of proprietorship

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1 LAWS(KAR)-2010-1-52: Crl.A.No.1371/2007 Dt:13.01.2010

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2 (2012) 5 SCC 661

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3 (2014) 10 SCC 373

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4 (2014) 12 SCC 625

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concern of which accused is the proprietor. Therefore, rightly the proprietorship concern is not arraigned as accused. Therefore, the defence of the accused that in the absence of the proprietorship concern, complaint is not maintainable against the him is not acceptable.

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12.1 In fact, the accused has not at all come up with any defence regarding the cheques, reaching the hands of complainant. When he has failed to come up with any specific defence and consequently, has failed to rebut the presumption, the burden has not shifted on the complainant. Consequently, the stage has not reached for the complainant to prove his financial capacity. Instead of coming up with any specific defence and establishing the same, the accused has unnecessarily taken the trouble of proving that complainant has no financial capacity. Appreciating the oral and documentary evidence on record the trial Court as well as the Sessions Court have come to correct conclusion. There is no perversity calling for interference by this Court and pray to dismiss the petition.

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Heard elaborate arguments of both sides and perused the record.

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Thus, it is the definite case of the complainant that accused borrowed hand loan of Rs.13,64,000/- and towards repayment of the same issued the subject cheques. Despite service of legal notice, the accused has not sent reply and consequently, he has failed to come up with a definite defence at the earliest available opportunity. At the trial, the entire cross-examination of the complainant is restricted to his financial capacity. A stray suggestion is made to the effect that the cheques belong to S.K.Sreenivas and company, but the complainant has replied that the loan was taken by the accused and he has issued the cheques. No suggestions are made to the complainant as to whether the accused had borrowed loan from the company and that cheques were issued towards repayment of the same. During the course of his evidence also, he has no explanation as to how the cheques have reached the hands of complainant.

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During the course of his evidence, the accused has deposed that he not even know the complainant and only after receiving the summons from the Court, he enquired about the complainant and there was no transaction between him and the complainant. Though he has stated that the cheques belongs to the firm S.K.Sreenivas and company, he has not deposed in what capacity he is working in the said company. During his examination-in-chief also, the accused has not stated how the cheques in question have reached the hands of the complainant. However, he has not disputed that the cheques bear his signature.

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It is pertinent to note that in the cheques at Exs.C1 and 2, the accused has affixed his signatures in his capacity as the Proprietor. Though the accused has produced Ex.D1 acknowledgement of registration of firm and Form No.I issued under the Indian Partnership Act, 1932, wherein he and his wife are shown to be the partners, it is not the case of either the complainant or

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accused that the loan was borrowed by the said firm. On the other hand in his capacity, as the Proprietor, the accused was permitted to operate the account on which the cheques were drawn and signed it and are dishonoured on presentation. The cheques were dishonoured for want of sufficient funds. The legal notice sent to the accused is served on him as per the acknowledgement at Ex.C10. Ex.C11 is the certificate of posting. Accused has not disputed his address to which the legal notice was sent. Consequently, presumption under

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Section 139 of the N.I Act is attracted, placing the initial burden on the accused to prove that the cheques were not issued for repayment of any legally recoverable debt or liability.

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As noted earlier, except challenging the financial capacity of the complainant and also making stray suggestions that the cheques belong to the company and not to him in his individual capacity, the accused has not come up with any specific defence and in the result

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failed to rebut the presumption. Had it been the defence of the accused that loan was taken by the company and established the same, things would have been different. Since the accused has signed the cheques in his capacity as the Proprietor, the complainant has rightly sued the accused in his individual capacity. Therefore, the decisions relied upon by the accused are not applicable to the case on hand.

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In fact in Raghu Lakshminarayanan Vs. Fine Tubes ( Raghu Lakshminarayanan )⁵ , the honourable Supreme Court held that in case of proprietorship concern, only the person who is the proprietor is liable. It has no separate entity as in case of company or partnership firm. Therefore, this Court has no hesitation, to hold that in order to escape from the liability, the accused has made a faint attempt to project as though it is a transaction between complainant and the alleged firm. In order to do so, he is required to admit and plead that the loan was

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5 (2007) 5 SCC 103

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taken by the company or the firm and also produce necessary documents to establish the same. In the absence of the same, this Court has no hesitation to hold that only to overcome the criminal liability, the accused has taken up such a defence and failed to establish the same.

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However, in the light of the presumption and also the evidence led by the complainant, the trial Court as well as the Sessions Court have rightly held that allegations against accused are proved beyond reasonble doubt and convicted and sentenced him. The conclusions arrived at by both Courts is consistent with the evidence placed on record and there is no perversity calling for interference by this Court. In the result, petition fails and accordingly the following:

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ORDER

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Petition filed by the accused under

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Section 397 r/w Section 401 of Cr.P.C. is

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dismissed.

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The impugned judgment and order dated 26.03.2019 in CC.No.1036/2018 on the file of Prl.Senior Civil Judge & JMFC at Pandavapura and judgment and order dated 20.01.2020 in Crl.A.No.5017/2019 on the file of III Addl. District and Sessions Judge, Mandya (Sitting at Srirangapatna) are hereby confirmed.

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The Registry is directed to send back the trial Court records 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.: 52

Sri Srinivasagowda v. Sri Thippegowda

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Sri Srinivasagowda v. Sri Thippegowda

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