G. Thippeswamy Vs Swethadri

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 AND JUDGMENT PASSED BY THE HON'BLE XXIII A.C.M.M., BENGALURU IN C.C.NO.13727/2013 DATED: 19.07.2016 AND IN CRL.APPEAL NO. 886/2016 ON THE FILE OF THE LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-61) DATED: 31.3.2017.

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NC: 2025:KHC:10088 CRL.RP No. 611 of 2017

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THIS PETITION, COMING ON FOR 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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In this petition filed under Section 397 r/w 401 (5) of the Cr.P.C, accused has challenged his conviction and sentence for the offence punishable under Section 138 of N.I. Act 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, the parties are referred to by their ranks before the trial Court.

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Complainant filed a complaint against the accused, alleging offence punishable under Section 138 N.I. Act, contending that he and accused are known to each other since more than 15 years. During 2011, accused was constructing a house and offered to give the 2^nd floor on lease for three years for Rs.3,00,000/- as he was in need of the said amount for completing the construction. As complainant was intending to demolish the house where he was living during 2012 for

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NC: 2025:KHC:10088 CRL.RP No. 611 of 2017

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reconstruction, he accepted the offer and paid Rs.3,00,000/- to the accused in the presence of his wife Sunitha Swamy and common friend K.H.Ramamurthy. In this regard a lease agreement dated 01.10.2011 was entered into. By way of guarantee accused issued three cheques for Rs.1,00,000/- each without specifying the date.

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3.1 However, after completion of the 2^nd floor, accused failed to put the complainant in possession and on the other hand let it out to somebody else. After much persuasion accused instructed the complainant to present the cheques for realization and collect the amount. However, when complainant presented the cheques for reaslization, they were returned dishonoured with endorsement 'funds insufficient'. Though complainant got issued legal notice, intentionally accused has not received the same and it was returned unserved as "door locked," "information delivered" and "addressee absent during delivery time". Accordingly, complaint is filed.

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Accused resisted the case by pleading not

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guilty.

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At the trial he took up a defence that the cheques in question were given by him to his wife with regard to a transaction between his wife and her cousin Ramamurthy. Though the amount due to said Ramamurthy was repaid, he did not return the cheques and got filed the present complaint through the complainant.

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The complainant not only examined himself as PW-1, he got examined the said Ramamurthy as PW-2. He relied upon Exs.P1 to 11.

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During his statement under Section 313 Cr.P.C,

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the accused has denied the incriminating evidence led by the complainant.

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In fact he has also entered the witness box and examined himself as DW-1 and his wife as DW-2 and relied upon Exs.D1 to 4.

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NC: 2025:KHC:10088 CRL.RP No. 611 of 2017

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Vide the impugned judgment and order, the trial Court rejected the defence of the accused and convicted him. The appeal filed by him also came to be dismissed by the Sessions Court.

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Aggrieved by the same, accused has filed this petition contending that the impugned judgment and order are illegal, perverse, unlawful and bad in law and as such liable to be set aside. It is contrary to the oral and documentary evidence placed on record and as such perverse. The evidence of PW-1 and 2 is not reliable and trustworthy and the Courts below have erred in keeping reliance in their testimony. They have also not appreciated the evidence of DWs-1 and 2 and the documents relied upon by the accused. Viewed from any angle, the impugned judgment and order are not sustainable and pray to allow the petition and acquit him.

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On the other hand learned counsel appearing for complainant supported the impugned judgment and order and sought for dismissal of the petition.

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NC: 2025:KHC:10088 CRL.RP No. 611 of 2017

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Heard arguments and perused the record.

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It is not in dispute that the cheques in question

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are drawn on the account of the accused and they bear his signature. It is also not in dispute that when presented they were returned dishonoured for want of sufficient funds. In view of the same, presumption under Section 139 of the N.I. Act is attracted to the effect that the cheques were issued towards repayment of any legally recoverable debt or liability, placing the initial burden on the accused to rebut the same. During his crossexamination, accused has admitted his address to which the legal notice was sent.

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Complainant who is examined as PW-1 has reiterated the complaint averments. He has chosen to examine Ramamurthy who is the cousin of wife of accused as PW-2 to show that there was no transaction between the said Ramamurthy and the wife of the accused and therefore, there was no occasion for her to handover the cheques in question to Ramamurthy.

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NC: 2025:KHC:10088 CRL.RP No. 611 of 2017

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Both accused and his wife who are examined as DWs-1 and 2 have deposed that they came to be acquainted with the complainant through Ramamurthy and the cheques in question were given to Ramamurthy by the wife of accused in respect of transaction between them and misusing the same, complaint is filed.

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However, as rightly observed by the trial Court and the Sessions Court, except the self-serving statement of DWs-1 and 2, accused has not placed any evidence to show that his wife had transaction with Ramamurthy and accused has also not lead any evidence for having regard the loan taken for from PW-2 Ramamurthy cheques were issued to him. Admittedly, after the alleged repayment of the said loan to Ramamurthy and on his failure to return the cheques the accused has not given any instructions to his banker not to honour the cheques and stop their payment. He has also not given any complaint against Ramamurthy for alleged misuse of the cheques.

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NC: 2025:KHC:10088 CRL.RP No. 611 of 2017

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Ex.P7 is the lease agreement executed between

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the complainant and accused. As rightly held by the trial Court accused has not specifically disputed the recitals of Ex.P7. PW-2 Ramamurthy is also a witness to Ex.P7. In fact during his cross-examination, the wife of the accused has admitted that the contents of Ex.P7 refers to their house and Thippeswamy who is referred to as lessor therein is her husband. The accused has not chosen to send Ex.P7 for handwriting expert to prove that it does not bear his signature.

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Perusal of the oral and documentary evidence placed on record, clearly indicates that intentionally the accused has failed to receive the legal notice and at the first available opportunity to come up with a definite defence. On the other hand at the trial, he has come up with a false defence. His conduct in not instructing the bank to stop payment and/or also not filing complaint against Ramamurthy as well as complaint is inconsistent with the defence taken by him. As rightly observed by the

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First Appellate Court, in the absence of any motive, it cannot be expected that Ramamurthy who is a common friend of complainant and accused and also related to the wife of accused would depose against the accused. Failure of the accused to instruct the bank to stop payment itself goes to show that he has taken a false defence.

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Appreciating the oral and documentary evidence placed on record, the trial Court as well as the First Appellate Court have rightly held that accused is guilty of the offence punishable under Section 138 of N.I. Act. This Court finds no perversity in the 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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(i) The petition filed under Section 397 r/w 401(5) of Cr.P.C. by the accused is dismissed.

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(ii) The judgment and order dated 19.07.2016 in C.C.No.13727/2013 on the file of XXIII ACMM, Bengaluru and judgment and order dated 31.03.2017 in Crl.A.No.886/2016 on the file of LX Addl.City Civil and Sessions Judge, Bengaluru (CCH-61) are confirmed.

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(iii) 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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Appreciation is placed on record for the able assistance given by the learned Amicus Curiae. His remuneration is fixed at Rs.5,000/-. The High Court Legal Services Committee is directed to pay the same.

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Sd/(J.M.KHAZI) JUDGE

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RR

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List No.: 1 Sl No.: 56

G. Thippeswamy v. Swethadri

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G. Thippeswamy v. Swethadri

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