Ashok Kumar H S Vs Venugopal K

THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO 1) SET ASIDE THE JUDGMENT AND CONVICTION ORDER PASSED BY THE TRIAL COURT AND CONFIRMED BY THE LXI ADDL. CITY CIVIL AND SESSION JUDGE, BENGALURU CITY (CCH-62) IN CRL.A.NO.07/2021, DATED 26.05.2023. 2) SET ASIDE THE

¶18

2 -

¶19

NC: 2025:KHC:16258 CRL.RP No. 525 of 2024

¶20

JUDGMENT AND ORDER OF CONVICTION AND SENTENCE IN C.C.NO.941/2019 ON THE FILE OF THE XVI ADDL. CMM, BANGALORE CITY, DATED 04.12.2020 AND ETC.,

¶21

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

¶22

ORAL ORDER

¶23

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 Negotiable Instrument Act by the trial Court, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him.

¶24

For the sake of convenience, parties are referred to by their ranks before the trial Court.

¶25

Complainant filed the complaint under Section 200 Cr.P.C against the accused contending that he and accused are friends. Both of them were working in the same office. While complainant was a plumbing contractor, accused was driver. On 20.08.2016, accused requested for hand loan of Rs.15 lakhs to discharge his legal liability and

¶26

3 -

¶27

NC: 2025:KHC:16258 CRL.RP No. 525 of 2024

¶28

also to purchase land in Turuvekere. However, complainant could advance only Rs.10 lakhs on

¶29

27.08.2016 in cash. Accused promised to repay the same on or before 30.02.2017. However, he failed to keep up with his promise and went on postponing the repayment. Ultimately on the repeated request and demand by the complainant, accused issued cheque dated 20.10.2018 for Rs.10 lakhs. However, when presented for encashment, it was dishonoured on the ground of “Stop payment” instructions. Complainant got issued legal notice dated 12.11.2018 and it is duly served on the accused on 13.11.2018. Instead of paying the amount due, accused has sent an evasive reply and hence, the complaint.

¶30

Accused has resisted the complaint by pleading

¶31

not guilty.

¶32

In order to prove the allegations against the accused, complainant has examined himself as PW-1 and got marked Exs.P1 to 14.

¶33

4 -

¶34

NC: 2025:KHC:16258 CRL.RP No. 525 of 2024

¶35

During the course of his statement under

¶36

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

¶37

Accused has given evidence as DW-1 and relied

¶38

upon Ex.D1 - the endorsement given by the bank regarding the “Stop payment” instructions.

¶39

8. In the light of the presumption and also on the

¶40

ground that accused has failed to prove his defence, the trial Court convicted the accused and sentenced him to pay fine of Rs.10,15,000/- with default sentence of imprisonment.

¶41

Aggrieved by the same, the accused

¶42

approached the Sessions Court in Crl.A.No.7/2021, which

¶43

came to be dismissed and thereby confirming the judgment and order of the trial Court.

¶44

5 -

¶45

NC: 2025:KHC:16258 CRL.RP No. 525 of 2024

¶46

Challenging the concurrent findings of the trial Court and Sessions Court, the accused is before this Court contending that the judgment and order are arbitrary, capricious and opposed to law facts and probabilities of the case. The Courts below have not appreciated the oral and documentary evidence placed on record in right perspective and as such they are perverse. No valid reasons are forthcoming for convicting the accused.

¶47

On the other hand, learned counsel for complainant supporting the judgment and order of the trial Court and Sessions Court submit that in the light of the presumption under Section 139 of the N.I Act, initial burden is on the accused to rebut the same and establish that the cheque was not issued for repayment of any legally recoverable debt or liability. Only after he succeeds in rebutting the presumption, the burden would shift on the complainant to prove his case. He would further submit that not only the accused has failed to rebut the presumption, but through the documentary evidence on

¶48

6 -

¶49

NC: 2025:KHC:16258 CRL.RP No. 525 of 2024

¶50

record complainant has proved his case. On proper appreciation of the same, both Courts have come to correct conclusion. There is no perversity in the conclusions arrived at by the Courts below and sought for dismissal of the petition.

¶51

Heard elaborate arguments of both sides and perused the record.

¶52

Since the subject cheque is drawn on the

¶53

account of the accused maintained with his banker and it bears his signature and on presentation, it was dishonoured on the instructions given by the accused for “Stop payment”, presumption under Section 139 of the N.I Act is attracted in placing the initial burden on the accused to rebut the presumption that it is not issued towards repayment of any legally recoverable debt or liability. Only after the accused rebut the presumption, burden would shift on the complainant to prove his case.

¶54

7 -

¶55

NC: 2025:KHC:16258 CRL.RP No. 525 of 2024

¶56

During the course of his evidence

¶57

complainant has read the complaint averments and got marked relevant documents. The notice sent to accused is received by his wife and in fact, he has sent reply as per Ex.P8. As per Ex.P9, the complainant has withdrawn a sum of Rs.7 lakhs from his account. He has deposed that the said amount along with Rs.3 lakhs which was available with him, he has paid Rs.10 lakhs to the accused by way of hand loan. Through the oral and documentary evidence, coupled with the presumption, the complainant has proved the basic facts leading to the presumption.

¶58

Accused has not only denied the case of the complainant that he had borrowed hand loan of Rs.10 lakhs and issued the subject cheque towards repayment of the same, but he has also taken a specific defence that during 2014, he had borrowed Rs.1,00,000/and utilised the said amount for purchasing a land for Rs.2,77,000/- and at that time

¶59

8 -

¶60

NC: 2025:KHC:16258 CRL.RP No. 525 of 2024

¶61

he had issued 2 blank signed cheques, including the subject cheque by way of security and he repaid the said hand loan of Rs.1,00,000/- together with interest at 6% per annum by raising a chit fund. However, complainant failed to return the said cheques. Therefore, he gave stop payment instructions to the bank. During the cross-examination of complainant, the accused has also challenged his financial capacity.

¶62

As already noted, in order to prove his financial capacity, the complainant has relied upon Exs.P9 and 10, which are his account statements maintained with his banker. As per Ex.P9 on 26.08.2016, the complainant has withdrawn a sum of Rs.7 lakhs from his account. In this regard he has deposed that this amount together with Rs.3 lakhs available with him, he has paid the hand loan of Rs.10 lakhs to the accused. The complainant has crossexamined the accused suggesting that Rs.10 lakhs taken from him is utilised by accused to purchase a

¶63

9 -

¶64

NC: 2025:KHC:16258 CRL.RP No. 525 of 2024

¶65

land in the name of his wife. In fact, accused has admitted that on 11.01.2016, he has entered into a sale agreement with one T.N.Niranjan in the name of his wife for purchasing a site in Sy.No.172 and on 20.02.2016 sale deed was executed by said T.N.Niranjan in the name of his wife for a sum of Rs.12,69,000/-.

¶66

However, accused has denied the suggestion

¶67

that the hand loan of Rs.10,00,000/- taken from complainant was utilised for purchasing the said site. These dates correspond with the hand loan taken from the complainant. In this regard accused has claimed that he purchased the said site out of sale proceeds of coconut and chit amount. In the light of the presumption operating against him, if the accused has not taken loan of Rs.10 lakhs and utilised the said amount for purchasing the site, then it becomes incumbent on him to prove that at the relevant point of time, he had sufficient funds at his disposal by sale of

¶68

10 -

¶69

NC: 2025:KHC:16258 CRL.RP No. 525 of 2024

¶70

coconut and also raised some money through chit fund. Except the self serving statement of the accused, no material is placed on record to establish this fact.

¶71

During the cross-examination of the

¶72

complainant, accused has also taken up contention that he borrowed Rs.1,00,000/- from the complainant during 2014 and used the said amount to purchase a

¶73

land for Rs.2,77,000/- from his relative. At least accused could have produced the sale deed to corroborate his defence that during 2014, he was in need of some funds. Except making the said suggestion, the accused has not chosen to produce any evidence to prove the same.

¶74

The accused has also taken up a specific defence that he had issued “Stop payment” instructions to his banker as complainant failed return two blank cheques given by him, while borrowing hand loan of Rs.1,00,000/-. In order to evidence this fact, the

¶75

11 -

¶76

NC: 2025:KHC:16258 CRL.RP No. 525 of 2024

¶77

accused has relied upon Ex.D1. It is an endorsement given by the bank stating that " as per CBS records, on 22.02.2016 accused has issued 'Stop payment' instructions in respect of cheque Nos.204049 and 204051 and Ex.D1 is issued on specific request of the accused and there is no liability on the part of the banker" . However, the accused has not produced the letter given to the bank, wherein he might have given specific reasons for requesting “Stop payment”. He could have produced the copy maintained by him. If he has not maintained any copy or the copy so maintained by him is not available, then he could have collected certified copy from the bank and produced it to the Court to justify the “Stop payment” instructions. Thus, the accused has failed to rebut the presumption that the cheque in question was not issued towards repayment of any legally recoverable debt or liability. He has failed to lead best evidence available with him to prove his defence and rebut the presumption.

¶78

12 -

¶79

NC: 2025:KHC:16258 CRL.RP No. 525 of 2024

¶80

Both trial Court as well as the Sessions Court on appreciation of oral and documentary evidence placed on record have rightly held that the allegations against accused are proved. The conclusions arrived at by them is consistent with the evidence placed on record. This Court finds no perversity calling for interference in exercise of the powers under Section 397 Cr.P.C. In the result, the petition fails and accordingly the following:

¶81

ORDER

¶82

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

¶83

dismissed.

¶84

The impugned judgment and order dated 04.12.2020 in C.C.No.941/2019 on the file of XVI ACMM, Bengaluru and judgment and order dated 26.05.2023 in Crl.A.No.7/2021 on the file of LXI Addl.

¶85