Shivashankar S Vs C Jayprakash

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-66), BENGALURU DATED 03.01.2022 IN CRL.A.NO.882/2020, CONFIRMING THE ORDER PASSED BY THE IV ADDITIONAL AND A.C.M.M., (COURT OF SMALL CAUSES)(SCCH-6), BENGALURU DATED 20.11.2020 IN C.C.NO.2366/2019 BY ALLOWING THIS CRL.RP.

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

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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Accused is before this Court in this criminal revision petition filed under Sections 397 read with 401 of Cr.PC with a prayer to set aside the judgment and order of conviction and sentence dated 20.11.2020 passed by the Court of IV Addl. Chief Metropolitan Magistrate, Bengaluru, in CC.No.2366/2019, which was confirmed in Crl.A.No.882/2020 by the Court of LXV Addl. City Civil & Sessions Judge, Bengaluru, by judgment and order dated 03.01.2022.

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Heard.

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Respondent herein had initiated proceedings against the petitioner for the offence punishable under Section 138 of the N.I.Act before the jurisdictional Court of Magistrate in CC.No.2366/2019.

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It is the specific case of the respondent that petitioner herein had issued the cheque in question towards repayment of the amount which the father of the petitioner was due to pay to the respondent. The said cheque on presentation for realization

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HC-KAR

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was dishonoured by the drawee bank. Thereafter, the legal notice that was got issued on behalf of the respondent was served on the petitioner. Since, the petitioner had failed to repay the amount covered under the cheque inspite of service of notice, the respondent had initiated proceedings against the petitioner for the offence punishable under Section 138 of the N.I.Act before the Court of IV Addl. Chief Metropolitan Magistrate, Bengaluru, in CC.No.2366/2019.

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In the said proceedings, the Trial Court had convicted the petitioner for the offence punishable under Section 138 of the N.I.Act and sentenced him to pay fine of Rs.75,000/- and in default to undergo simple imprisonment for a period of two months. The Appellate Court has confirmed the said judgment and order passed by the Trial Court in Crl.A.No.882/2020 which was dismissed on 03.01.2022. It is under these circumstances, the petitioner is before this Court.

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Perusal of the material on record would go to show that the respondent herein had initiated proceedings in CC.No.17812/2014 against K.S.Subramanyam, who is the father of the petitioner herein for the offence punishable under

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HC-KAR

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Section 138 of the N.I.Act. In the said proceedings, by judgment and order dated 03.05.2016, the Trial Court had convicted K.S.Subramanyam for the offence punishable under Section 138 of the N.I.Act and had sentenced him to pay fine of Rs.5,02,000/-. The said judgment and order of conviction passed in CC.No.17812/2014 against K.S.Subramanyam - father of the petitioner herein was confirmed in Crl.A.No.706/2016. In the said case, the Trial Court had issued fine levy warrant and also non-bailable warrant against K.S.Subramanyam and the petitioner who had appeared before the Trial Court had undertaken to repay the amount to the respondent on behalf of his father and had issued three postdated cheques including the cheque in question bearing No.054009 dated 10.12.2018 for a sum of Rs.75,000/- drawn on State Bank of India, Basavanagudi Branch, Bengaluru, in favour of the respondent. The said cheque on presentation for realization was dishonoured by the drawee bank with a shara 'funds insufficient'.

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The respondent has examined himself before the Trial Court as PW-1 and the cheque in question is marked as Ex.P-1.

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HC-KAR

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The signature of the petitioner found in the cheque is marked as Ex.P-1(a). It is not in dispute that the signature found in the cheque in question belonged to the petitioner and it is also not in dispute that the cheque was drawn on his bank account maintained in State Bank of India, Basavanagudi Branch, Bengaluru. Therefore, a presumption arises against the petitioner under Sections 139 read with 118 of N.I.Act, and unless the petitioner rebuts the said presumption by putting forward a probable defence, he is liable to be punished under Section 138 of the N.I.Act.

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In the present case, petitioner has taken a defence that the cheque in question was issued in the police station after his father who was taken to custody in the case in which he was convicted for the offence punishable under Section 138 of the N.I.Act. He has further contended that he is not liable to be pay any amount to the respondent, and therefore, it cannot be said that the cheque in question was issued towards legally recoverable debt. The respondent by producing the certified copies of the order sheet maintained in the earlier proceedings in which the father of the petitioner herein was convicted and

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HC-KAR

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also by producing Ex.P-7 which is the statement of the petitioner, has prima facie proved before the Trial Court that the cheque in question was issued by the petitioner towards part payment of the amount that was due by his father. The said cheque was dishonoured by the drawee bank for the reason that there was no sufficient amount available in the bank account of the petitioner. Since, the cheque in question was issued by the petitioner towards payment of the amount that was due to be paid to the respondent by his father, it cannot be said that the cheque in question was not issued towards legally recoverable debt. In addition to the same, the presumption that was available against the petitioner was not rebutted by him by putting forward any probable defence. It is under these circumstances, the Trial Court as well as the Appellate Court have convicted the petitioner for the offence punishable under Section 138 of the N.I.Act.

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Even the order of sentence passed against the petitioner

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is just and proportionate. Therefore, I am of the opinion that the judgment and order of conviction and sentence passed by the courts below do not suffer from any illegality or irregularity

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