Sri. Srinivasa Reddy K v Vs Sri. Devarajegowda P B

SRI. SRINIVASA REDDY K V S/O VENKATESH REDDY AGED ABOUT 30 YEARS R/AT KALLINAYAKANAHALLI VILLAGE AND POST THONDEBAVI HOBLI, GOWRIBIDANUR TALUK, CHIKKABALLAPURA DISTRICT-562101

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…PETITIONER

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(BY SRI. K S HARISH, 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. DEVARAJEGOWDA P B S/O BALEGOWDA AGED ABOUT 43 YEARS R/AT MADHAVANAGAR, JANAJAM MYTHIKUTA ROAD GOWRIBIDANUR TOWN CHIKKABALLAPURA DISTRICT-562101

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…RESPONDENT (BY SRI. SUNIL NARAYAN NAIK & SRI.ARJUN.J.S, ADVOCATES)

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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 JUDGMENT DATED 27.10.2023 IN CRL.A.15/2023 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT

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CHIKKABALLAPURA AND CONSEQUENTLY ACQUIT THE PETITIONER BY ALLOWING THE REVISION PETITION AND ETC.,

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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 of Cr.P.C, is by the accused, wherein, he has challenged the judgment and order passed by the trial Court convicting him for the offence punishable under Section 138 of Negotiable Instrument 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 referred to by their ranks before the trial Court.

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It is the case of the complainant that the

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accused is engaged in the business of purchase and sale of chicken. He was also running a medical store. In order to improve the said business and to clear loans incurred by

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him and also for his marriage expenses, accused borrowed a sum of ₹9,00,000/- from the complainant on 10.06.2018 in cash. He promised to repay the same within six months. Complainant was able to pay the said amount as he had saved it through his bakery business. However, accused failed to fulfill his promise, even after expiry of six months. When the complainant approached him, he issued cheque dated 18.12.2018 for a sum of ₹9,00,000/- with a promise that it would be encashed on presentation. However, when complainant presented the cheque for encashment, it was dishonoured as "Funds insufficient". Though the complainant personally apprised the said fact to the accused, he did not respond. Therefore, complainant got issued legal notice. It is duly served on the accused. Instead of paying the amount due, he has sent an evasive reply and hence the complaint.

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4. On due service of summons, accused appeared

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through counsel and pleaded, not guilty and claimed trial.

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In order to prove the allegation against

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accused, the complainant examined himself as PW-1 and one witness as PW-2. He relied upon Exs.P1 to P7.

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During the course of his statement under

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

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Accused has also given evidence as DW-1. However, no documents are marked on behalf of the accused.

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Vide impugned judgment and order, the trial Court convicted the accused and sentenced him to pay fine of ₹9,20,000/- with default sentence of imprisonment.

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Accused challenged his conviction and sentence

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before the Sessions Court in Crl.A.No.15/2023. It came to be dismissed, upholding the judgment and order of the trial Court.

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Aggrieved by the concurrent findings of the trial Court and Sessions Court, complainant is before this Court contending that they are illegal, arbitrary and perverse. There is no proper appreciation of oral and documentary evidence placed on record in the light of defence taken by the accused. Hence, they suffer from legal infirmities, warranting interference by this Court. Both Courts have failed to appreciate the probable and valid defence taken by the accused and he has established the same, placing the burden on the complainant to prove his financial capacity. However, the complainant has failed to prove his financial capacity. There is discrepancy in the evidence of PWs-1 and 2, which the Courts below have failed to appreciate. Viewed from any angle, the impugned judgment and order of the trial Court and Sessions Court are not sustainable and prays to allow the petition.

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In support of arguments, learned counsel for

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accused relied upon the following decisions:

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(i) Rajaram s/o Sriramulu Naidu (Since deceased) Through L.Rs. Vs. Maruthachalam (Since deceased) Through L.Rs. (Rajaram)¹

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(ii) Sri Dattatraya vs. Sharanappa (Dattatraya)²

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(iii) Smt N Padmavathi Vs. Sri D Rajanna (N Padmavathi)³

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(iv) Sri Krishna Naika K Vs. Sri T B Basavaraj (Krishna Naika K)⁴

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(v) Sri Prakash Chand B Vs. Sri Manohar Singh (Prakash Chand B)⁵

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On the other hand, learned counsel for the

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complainant submitted that in the light of the presumption under Sections 118 and 139 of the NI Act and the basic

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facts established by the complainant, initial burden is on the accused to prove that the cheque in question was not issued towards repayment of any legally recoverable debt or liability and on the other hand establish the circumstances in which the cheque has gone into the hands of complainant. However, accused has failed to

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1 2023 LiveLaw (SC) 46

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2 Crl.A.No.3257/2024

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3 Crl.RP No.1138/2021 dated 02.01.2024

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4 Crl.RP No.320/2022 dated 03.01.2024

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5 Crl.A.No.814/2018 dated 01.03.2024

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rebut the presumption and consequently the burden has not shifted on the complainant. However, the complainant has also led evidence to show that at the relevant point of time, accused was badly in need of finance, which the complainant provided to him. He has taken false defence

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and failed to prove the same. In the above facts and circumstances, the Courts below are justified in accepting the case of the complainant and convicting the accused. Having regard to the facts and circumstances of the case, the punishment imposed is also commensurate with the gravity of the offence and prayed to dismiss the petition.

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Heard arguments and perused the record.

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Accused admit that the cheque in question is drawn on his account maintained with his banker and that it bears his signature, on presentation, it is dishonoured for insufficient funds. Complainant has got issued legal notice to the accused and it is duly served on him. Consequently, the presumption under Sections 118 and 139 of the NI Act comes into picture, placing the initial

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burden to rebut the same on the accused and to prove that the cheque was not issued towards repayment of any legally recoverable debt or liability and on the other hand, established the circumstance in which it has reached the hands of the complainant.

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The complainant has examined PW-2

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Venkatachalapathy to prove that he has paid ₹9,00,000/to the accused in the presence of PW-2. In fact, PW-2 has also given evidence to this effect in order to establish that at the relevant point of time, the accused was badly in need of finance, the complainant has relied upon the cross examination of accused who is examined as DW-1. During his cross examination, the accused has admitted that earlier he was running a medical store, taken home loan from State bank of India, Tondebhavi and also rearing chicken. The complainant has taken a specific defence that when accused borrowed ₹9,00,000/-from him, he had already received demand notice from the bank to repay the loan or else, his property would be brought to sale and

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he had handed over the said notice to the complainant. In fact, he has got it marked through the cross-examination of DW-1 as Ex.P6.

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Though the accused has denied that he had handed over the said notice to the complainant, he has no explanation as to how a notice sent to him, has reached the hands of complainant. Ex.P6 clearly indicates that as on the date of said notice a sum of ₹7,09,746/- was due to the bank. This piece of evidence corroborate the fact that accused was desperately need of finance and convinced the complainant to lent him ₹9,00,000/-. Ex.P7 is the sale deed executed by the complainant by which he has sold an agriculture land for ₹4,50,000/-. the complainant has also deposed that in addition to the sale consideration, he was having other amount saved by him and together he paid ₹9,00,000/- to the accused.

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Accused admitted the fact that he and complainant were knowing each other and claimed that he had borrowed hand loan of ₹1,00,000/- only and issued the subject cheque. Though he has repaid the same,

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complainant demanded ₹1,00,000/- more towards interest and refused to return the cheque. Accused has deposed to this effect. However, except his self-serving statement, there is no evidence to show that he had borrowed ₹1,00,000/- in 2016 and repaid the same. If it is true that accused had borrowed only ₹1,00,000/- and even after he repaid the same, complainant failed to return the blank cheque, the proper course available to him was to file a complaint. At least accused could have intimated the bank the fact of he borrowing ₹1,00,000/- issuing blank cheque

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and despite repaying the same complainant has not returned the blank cheque and therefore, instructing the bank to stop payment. Accused has not chosen to take such action. Only after he has received the legal notice, in the reply notice he has taken such defence. However, he has failed to take such a step, stopping payment of the cheque, specifying the reason.

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On the other hand, the complainant has not only proved the preliminary facts for raising the presumption, but also established that at the relevant

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point of time accused was badly in need of financial assistance which he has given and has failed to repay the same. The complainant has also proved his financial capacity. In the light of the presumption under Section 139, the accused has failed to rebut the presumption.

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So far as the decisions relied by the accused are concerned, they are not applicable to the facts and circumstances of the present case, especially when the accused has failed to rebut the presumption. The trial Court as well as the Sessions Court on appreciation of the oral and documentary evidence placed on record by both parties have come to a correct conclusion that the allegations against accused are proved and he has failed to prove that the cheque was issued in respect of earlier transaction. The concurrent findings are based on the evidence led by the parties and this Court finds no perversity calling for interference by this Court in exercise of its reversionary jurisdiction. In the result, the petition fails and accordingly the following;

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ORDER

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i) The Criminal Revision Petition filed by the accused under Section 397 r/w Section 401 of Cr.P.C, is dismissed.

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ii) The impugned judgment and order dated 01.03.2023 in CC.No.516/2019 on the file of Addl.Civil Judge and JMFC, Gowribidanur, and judgment and order dated 27.10.2023 in Crl.A.No.15/2023 on the file of I Addl.District and Sessions Judge, Chikkaballapur are hereby confirmed.

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

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Sd/(J.M.KHAZI) JUDGE

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RR

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List No.: 1 Sl No.: 51

Sri. Srinivasa Reddy K v. Vs Sri. Devarajegowda P B

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Sri. Srinivasa Reddy K v. Vs Sri. Devarajegowda P B

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