Mr Venkatesh K Vs Mr P Prasanna Kumar

MR VENKATESH K S/O LATE KRISHNAPPA, AGED ABOUT 62 YEARS RESIDING AT NO. 418/10, MIG 3^RD STAGE, WARD NO. 25, A SECTOR, YELAHANKA NEW TOWN, BENGALURU-560106

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…PETITIONER

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(BY SRI. MANJUNATH.G.KANDEKAR, ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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MR P PRASANNA KUMAR SON OF PERIYANNA, AGED ABOUT 55 YEARS, RESIDING AT AGAMYA ARCADE NO.810, (NISAN CAR SHOWROOM BUILDING) 100 FEET ROAD, HOSAKEREHALLI, BANASHANKARI 5^TH BLOCK, 3^RD STAGE, NEXT TO GUPTA COLLEGE, BENGALURU-560085.

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…RESPONDENT

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(BY SRI. G M SRINIVASAREDDY, 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

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NC: 2025:KHC:15949 CRL.RP No. 496 of 2023

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JUDGMENT OF CONVICTION AND SENTENCE IN CRL.A.NO.44/2021, DATED 07.03.2023 BY THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT AT BENGALURU AND ALSO THE JUDGMENT, SENTENCE AND CONVICTION PASSED BY C.J.M., BENGALURU RURAL DISTRICT AT BENGALURU IN C.C.NO.8088/2018 DATED 15.11.2021 AND ETC.,

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THIS PETITION, COMING ON FOR ADMISSION, 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, wherein he has challenged his conviction and sentence imposed by the trial Court for the offence punishable under Section 138 of 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 referred to by their ranks before the trial Court.

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3. Complainant filed the complaint against accused

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alleging that he and accused are known to each other

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since long time. For his legal necessity accused borrowed a sum of ₹10 lakhs from the complainant with a promise to repay the same within one year. However, when he failed to keep up with his promise, on the insistence of the complainant, accused issued 2 cheques for ₹5 lakhs, each dated 22.06.2018. When presented for realisation, they were dishonoured as "Funds insufficient". Complainant got issued legal notice to the accused. The notice sent to the residential address of the accused is returned as not claimed. However, the one sent to his office address is duly served. In fact, accused sent an evasive reply and hence the complaint.

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Accused has resisted the complaint by pleading not guilty.

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In order to prove the allegations against the accused, complainant has examined himself as PW-1 and relied upon Exs.P1 to 10.

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During the course of his statement under

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Section 313 Cr.P.C, accused has denied the incriminating evidence led by the complainant.

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He has also given evidence as DW-1. However, no documents are marked on his behalf.

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The trial Court convicted the accused and

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sentenced him to pay a fine of ₹14 lakhs with default sentence of imprisonment.

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Aggrieved by the same, accused filed appeal before the Sessions Court, which came to be dismissed by confirming the judgment and order of trial Court.

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Aggrieved by the same accused is before this Court contending that the judgment and order of the trial Court as well as the Sessions Court are unjust, perverse and contrary to the fact circumstance of the case. Both Courts have not considered the evidence of accused. The complainant has failed to prove that he had financial

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capacity and that he has lent to ₹10 lakhs to the accused and that it is a legally recoverable debt or liability.

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Therefore, drawing of presumption, placing the burden on the accused is not correct. Viewed from any angle, the impugned judgment and order of the trial Court and Sessions Court are not sustainable and pray to allow the petition.

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In support of his arguments, learned counsel for

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accused has relied upon the following decisions:

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(i) Vijay Vs. Laxman ( Vijay )¹

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(ii) Khaleel Khan P Vs. Shankarappa ( Khaleel Khan )²

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On the other hand, learned counsel

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representing the complainant argued that the cheques in question belongs to the accused drawn on his account and it bears his signature and on presentation, they are dishonoured for want of sufficient funds and despite

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1 AIR ONLINE 2013 SC 483

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2 2024 (1) AKR 99

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service of legal notice, he has failed to pay the amount due. Therefore, presumption under Section 139 of N.I Act is attracted, placing the initial burden on the accused to rebut the presumption and prove that the cheques were not issued towards repayment of any legal recoverable debt or liability. Accused has failed to rebut the presumption. On the other hand, the evidence lead by the complainant prove his case. Therefore, both trial Court and Sessions Court have rightly held him guilty and pray to dismiss this petition also.

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Heard elaborate arguments of both sides and perused the record.

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As rightly submitted by the learned counsel for complainant having regard to the fact that the cheques in question are drawn on the account of the accused and it bears his signature and the same is dishonoured for want of sufficient funds and in this regard, the complainant has got issued legal notice within the stipulated time,

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presumption under Section 139 of the N.I Act is attracted, placing the initial burden on the accused to rebut the same. In Krishna Janardhan Bhat Vs. Dattatreya G.Hegde ( Krishna Janardhan )³ , it was held that the presumption under Section 139 of N.I Act is only to the effect that the cheque was issued towards repayment of the debt liability and it is for the complainant to prove that the said debt is legally recoverable. However, in Rangappa Vs. Sri Mohan ( Rangappa )⁴ , the Hon'ble Supreme Court clarified that the presumption is also extent to the fact that the debt is legally recoverable and only after rebutting the presumption, the onus would shift on the complainant to prove his case. Therefore, the contention of the accused that complainant has not discharged the burden is incorrect.

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Accused admit his acquaintance with the

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complainant. In fact, he has gone to the extent of claiming

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3 2008 AIR SCW 738 (SC)

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4 (2010) 11 SCC 441

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that complainant is his relative. Accused has taken a specific defence that he had issued the subject cheques blank with his signature to his son to pay his college fee, but they went missing. He has also alleged that complainant was in the habit of visiting his house and at that time he has committed theft of the cheques in question. If at all the cheques were issued by the accused to his son for paying his college fees, immediately on their disappearance, they might have come to know about it. The minimum which could be expected of the accused was to intimate the bank about the missing of the cheques and give stop payment instructions, which he has not done.

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15.1 He could have also given complaint to the concerned police about the missing of the cheques. In fact, during his cross-examination, the accused has claimed that he has given such complaint to the police, but he has misplaced the acknowledgement. Even though he has undertaken to collect certified copy from the concerned police and produce to the Court, he has not done so. Even though in the reply notice, the accused has

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claimed that the cheque in question were given to his son in blank with his signature, it is not stated that they were given for paying the college fee. On the missing of the cheques, accused has not taken steps for the stop payment and also giving complaint to the police, this defence appears to be false and taken only for the sake of defence without their being any substance.

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On the other hand, the complainant has led evidence to show that accused was in the habit of borrowing money from others and failed to repay the same. In fact, Ex.P8 is the complaint in C.C.No.54510/2017 filed by one B. Vasudeva Kotian and as per Ex.P10, in the said case accused got settled the case before the Lok Adalat. Later, when he failed to comply with the said compromise, he was arrested and sent to judicial custody. In fact, as per Ex.P9, the accused was dismissed from his service on the allegations that he was in judicial custody for 48 hours. The accused has also

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not examined his son to prove his defence of blank signed cheques being given to him and that they went missing.

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16.1 In fact, during the course of cross-examination, he has admitted that before the present complaint, 2 more complaints for cheque bounce were pending against him. The pendency of number of cheque bounce cases indicate that the accused was in the habit of borrowing money by issuing cheques and failing to repay the same. Consequently, the accused has failed to rebut the presumption and therefore the burden has not shifted on the complainant to prove his case. The account extract of the complainant at Ex.P5 clearly indicates that he is having financial capacity. Through the oral and documentary evidence placed on record, the complainant has established his case.

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In Vijay referred to supra, on facts the Hon'ble Supreme Court held that accused has succeeded in dislodging complainant's case on the strength of convincing evidence and thereby discharged the burden

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envisaged under Sections 118(a) and 139 of N.I. Act and therefore, his acquittal was proper.

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Similarly, in Khaleel Khan referred to supra, also on facts it was held that accused succeeded in rebutting the presumption and thereby the burden shifted back on the complainant. However, the complainant failed to establish that at the relevant point of time he had financial capacity to lend a sum of Rs.5,00,000/- to the accused and the cheque was issued towards repayment of the same.

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However, these two decisions are not applicable

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to the facts and circumstances of the present case wherein the accused has failed to rebut the presumption.

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On proper appreciation of oral and documentary evidence placed on record the trial Court as well as the Sessions Court have rightly held that the allegations against the accused are proved, convicted and sentenced

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him. The conclusions arrived at by them are consistent with the evidence lead by both parties and this Court finds no perversity 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 Cr.P.C is hereby dismissed.

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The impugned judgment and order dated 15.11.2021 in C.C.No.8088/2018 on the file of Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru and judgment and order dated 07.03.2023 in Crl.A.No.44/2021 on the file of VI Addl.District and Sessions Judge, Bengaluru Rural District, Bengaluru are confirmed.

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