H M Somashekar Vs M/S Vkl Resorts Pvt. Ltd.

H.M. SOMASHEKAR, S/O MARIYANNA, AGED ABOUT 45 YEARS, PROPRIETOR OF M/S. SHIVA SHAKTI DISTRIBUTORS, NO.14, ANNIPURA MAIN ROAD, SUDAMANAGAR, BENGALURU-98.

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…PETITIONER

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(BY SRI. M.R. VIJAYA KUMAR, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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M/S. VKL RESORTS PVT. LTD., OFFICE MEGHA TOWERS, K.H.ROAD, BENGALURU-560011, REP. BY ITS IN CHARGE OFFICER, SRI RAJAN M. VERGHIS.

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…RESPONDENT

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(RESPONDENT SERVED AND UNREPRESENTED)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 06.06.2019 PASSED BY THE LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU CITY IN CRL.A.NO.938/2016 CONFIRMING THE ORDER OF CONVICTION PRONOUNCED ON 14.07.2016 BY THE

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HC-KAR

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XXXII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AND VII ADDITIONAL JUDGE, SMALL CAUSES COURT, BENGALURU IN C.C.NO.17699/2013 CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT PRODUCED AT ANNEXURE-A BY ALLOWING THE CRIMINAL REVISION PETITION.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL ORDER

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This matter is listed for admission. Heard the learned counsel for the revision petitioner. The respondent is served and unrepresented.

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2. The factual matrix of the case of the complainant before the Trial Court while invoking Section 138 of Negotiable Instruments Act (‘NI Act’ for short) is that, the accused is the proprietor of M/s.Shiva Shakthi Distributors, dealers in dairy products, who is well known to the complainant from the past several years and based on the relationship, the accused approached the complainant in the year 2011 seeking hand loan for a sum of Rs.10,00,000/- for the purpose of his urgent needs. Believing the words of the accused, the complainant paid an amount of Rs.10,00,000/- through a cheque dated

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13.04.2011 and the accused had encashed the said amount on 13.04.2011, which is reflected in the account extract. The accused inspite of repeated request and demand, did not repay the amount and went on postponing the same on one or the other reasons and ultimately, issued the cheque for an amount of Rs.10,00,000/- dated 28.07.2012 drawn on Canara Bank, Shanthinagar Branch, Bangalore in favour of the complainant. The said cheque was presented for encashment and the same was returned within an endorsement “funds insufficient” on 01.08.2012. The complainant called upon him to pay the amount by issuing the notice and notice was also served, but the accused failed to make the payment. Hence, complaint was filed, cognizance was taken and the accused was secured and he did not plead guilty and claimed the trial.

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3. The complainant examined himself as P.W.1 and got marked the documents at Exs.P.1 to 10. The accused also examined himself as D.W.1, but not marked any documents. The accused admitted the receipt of Rs.10,00,000/- vide cheque dated 13.04.2011. However, he contended that work was entrusted to him and he has done the work, but while advancing the amount, cheque was collected for security and

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the said cheque was misused. In order to substantiate the said defence, nothing is elicited from the cross-examination of P.W.1. On the other hand, D.W.1 categorically admitted that the complainant has advanced him a sum of Rs.10,00,000/- on 13.04.2011 by way of Cheque. He categorically admits the signature in Ex.P.1, but contend that the contents found in Ex.P.1 do not belongs to him.

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4. The Trial Court having considered the defence, in paragraph No.19 taken note of that absolutely there was no hurdle for the accused to take suitable steps in this regard against the complainant, in case, the complainant has unauthorizedly obtained Ex.P.1 cheque from him and inspite of request and demand made by the accused, the same is not returned and no action was taken. If at all, it was the specific defence of the accused that he has done all the work entrusted to him including obtaining licence from concerned authorities to run the restaurant by the complainant, the accused must have adduced evidence of one of such persons from whom he has taken service as entrusted by the complainant to show that he has done the work as per the oral agreement between himself and the complainant. The Trial Court also made an observation

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that the accused has not examined any witnesses on his behalf for the reasons best known to him nor produced any single document in support of his defence. This in turn, ultimately goes to show that the defence taken by the accused that there was an oral agreement between him and the complainant relating to entrustment of certain work to him to run the restaurant by the complainant and agreeing to pay a sum of Rs.25,00,000/- and paying a sum of Rs.10,00,000/- as an advance amount as per Ex.P.6 and agreeing to pay balance amount of Rs.15,00,000/- appears to be cooked up story. The Trial Court having taken note of the defence which was taken, in paragraph No.20 comes to the conclusion that nothing prevented the accused to take an action against the complainant in case, if Ex.P.1 was misused by the complainant atleast after receipt of legal notice issued by the complainant calling upon him to pay the amount covered under the dishonored Cheque. The Trial Court also relied upon the judgment of this Court in the case of PEERANBI v. HAJIMALANG reported in (2013) 3 KCCR 2223 , wherein it is held that when accused does not deny Cheque, it cannot be accepted that cheque was obtained by the complainant illegally.

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The Trial Court having appreciated the evidence of P.W.1, D.W.1 and the documents at Exs.P.1 to 10, particularly considering Ex.P.6, under which the accused has taken the amount of Rs.10,00,000/-, convicted and sentenced him.

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5. Being aggrieved by the order of the Trial Court, an appeal is filed in Crl.A.No.938/2016 and the Appellate Court also having considered the grounds, which have been urged in the appeal memo and considering Section 139 of the NI Act with regard to the rebuttal evidence is concerned as well as presumption under Section 118 of the NI Act in paragraph Nos.16 and 17, in paragraph No.18 comes to the conclusion that the burden is now upon the accused to rebut the presumption available to the complainant. The accused has categorically admitted the issuance of cheque as well as having received the amount of Rs.10,00,000/-. With regard to misusing of the cheque, nothing is placed on record and even not taken any action and hence, the Appellate Court confirmed the judgment of the Trial Court.

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6. The learned counsel for the revision petitioner would vehemently contend that both the Courts have

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committed an error in appreciating the evidence available on record. The learned counsel in support of his arguments also relies upon the judgment of this Court in the case of H.P. MOODALAPPA v. C.A. CHOWRAPPA reported in 2012 CRI.L.J. 804 , wherein it is held that the accused was literate man and knows how to read and write and had not written cheque in his own writing. Moreover, amount shown in cheque was much more than given in loan. Entire transaction shrouded with suspicion. Complainant failed to establish that there was legally enforceable debt or liability.

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7. The learned counsel also relies upon the judgment

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of the Apex Court in the case of KRISHNA JANARDHAN BHAT v. DATTATRAYA G. HEGDE reported in AIR 2008 SC

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1325 , wherein it is held that the accused is not required to step into witness box. He may discharge his burden on basis of materials already brought on record. The question of whether statutory presumption rebutted or not must be determined in view of other evidences on record. The learned counsel also relies upon the judgment of this Court in the case of SHIVANAND v. ARAVIND NARAYAN KULKARNI reported in

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LAWS (KAR) 2017 (6) 74. The learned counsel also relies

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upon the judgment of the Apex Court in the case of K. SUBRAMANI v. K. DAMODARA NAIDU reported in (2015) 1 SCC 99, wherein it is held that legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to the appellant accused.

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8. Having considered the judgments which have been relied upon by the learned counsel for the revision petitioner, no doubt, H.P. Moodalappa case (supra) is with regard to the complainant case surrounded with suspicion. But in the case on hand, it is very clear that the cheque was issued in respect of the liability and the accused also categorically admits that he has received an amount of Rs.10,00,000/- vide Ex.P.1 cheque. But his only contention is that work was entrusted to him and he had done that work. But what work he has done has not been substantiated and even not examined any of the witnesses and the same is considered by the Trial Court.

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9. The Apex Court judgment in the case of Krishna

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Janardhan Bhat (supra), is with regard to rebuttal of evidence, wherein it is held that the accused not required to step into witness box. There is no dispute with regard to the

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said principle is concerned. In effective cross-examination, if any answer is elicited, there is no need to enter into the witness box. The Apex Court judgment in the case of B. Subramani (supra) is with regard to the legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to the appellant/accused. This judgment is not applicable to the facts of the case on hand, since the accused has categorically admitted that he has received the amount of Rs.10,00,000/from the complainant by way of cheque and with regard to the work he has done, nothing is substantiated and there is no rebuttable evidence before the Court with regard to substantiating his defence. The same is considered by the Trial Court elaborately and particularly taken note of the admission on the part of D.W.1 in paragraph Nos.17, 18 and 19 and comes to the conclusion that the accused must have adduced evidence of one of such persons from whom he has taken service as entrusted by the complainant to show that he has done the work as per the oral agreement between himself and the complainant. There is no such agreement with regard to the work is concerned and only it is the contention that there was

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an oral agreement and in order to substantiate the oral agreement also, nothing is placed on record.

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10. The Appellate Court also taken note of the evidence available on record. In paragraph Nos.16 and 17 taken note of scope of Sections 139 as well as Section 118 of the NI Act. In paragraph No.18 extracted the admission of D.W.1 that an amount of Rs.10,00,000/- was received from the complainant. But it is contended that the same was given for security and to evidence the fact that it was collected only for security for advancing the amount and he has done the work also, nothing is placed on record. Hence, I do not find any ground to entertain the revision petition.

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11. Accordingly, the criminal revision petition is

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dismissed.

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Sd/(H.P.SANDESH) JUDGE

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MD List No.: 1 Sl No.: 20

H M Somashekar v. M/S Vkl Resorts Pvt. Ltd.

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H M Somashekar v. M/S Vkl Resorts Pvt. Ltd.

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