S Prasad vs H S Raghavenra Rao

Karnataka High Court

S Prasad vs H S Raghavenra Rao on 16 May, 2024

                          -1-
                                 CRL.RP No. 1220 of 2016


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 16TH DAY OF MAY, 2024
                       BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 1220 OF 2016
BETWEEN:
   S PRASAD
   AGED ABOUT 58 YEARS
   S/O LATE SRIDHAR RAO
   NO.394, "SRIDHARA KRUPA",
   OPP: MAHAVEERA VIDYA MANDIRA
   2ND STAGE, LIC COLONY
   SRIRAMPURA, MYSURU - 570 023.
   MYSORE - 570 001.

                                            ...PETITIONER

(BY SRI. KRISHNAMURTHY G HASYAGAR, ADVOCATE)

AND:
   H S RAGHAVENDRA RAO
   AGED ABOUT 58 YEARS
   S/O LATE H G SUDHINDRA RAO
   NO.1938, 5TH CROSS, SUBHASH NAGAR
   MANDYA CITY - 571 401.

                                          ...RESPONDENT

(BY SRI. G M ANANDA, ADVOCATE)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
02.09.2016 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS    JUDGE,    MANDYA    IN    CRL.A.NO.15/2016,
CONFIRMING THE JUDGMENT OF CONVICTION DATED
29.01.2016 PASSED BY THE JUDICIAL MAGISTRATE FIRST
CLASS, MANDYA IN C.C.NO.434/2007 AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 22.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                                   -2-
                                           CRL.RP No. 1220 of 2016




                                ORDER

1. This Criminal Revision Petition is filed by the petitioner, being aggrieved by the judgment of conviction and order of sentence dated 29.01.2016 in C.C.No.434/2007 on the file of the Judicial Magistrate First Class at Mandya and its confirmation judgment and order dated 02.09.2016 in Crl.A.No.15/2016 on the file of the V Additional District and Sessions Judge at Mandya, seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner / accused is convicted for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (for short 'N.I Act').

2. The ranks of the parties henceforth will be referred as per their rankings in the Trial Court for convenience. Brief facts of the case:

3. It is the case of the complainant that he and the accused were good friends and they were known to each other since their childhood. On 20.02.2006, the accused approached the complainant and borrowed hand loan of Rs.1,00,000/- to clear his loan. Since the accused was -3- CRL.RP No. 1220 of 2016 a good friend of the complainant, he adjusted a sum of Rs.90,000/- and paid to the accused on 28.02.2006.

4. It is further stated that, the accused assured that he would repay the amount as early as possible. However, the accused has failed to repay the said loan which he had borrowed from the complainant. When the complainant demanded the accused to repay the said amount, the accused issued a cheque for a sum of Rs.90,000/- and instructed the complainant to present the same for encashment. Accordingly, the complainant had intention to present the said cheque on 09.05.2006. However, the accused had requested the complainant to present it after 15 days. On the instruction of the accused, the complainant presented the cheque on 23.05.2006. However, the said cheque came to be dishonoured with a shara as 'Account closed'. The complainant had brought to the notice of the accused through legal notice dated 23.06.2006. The accused did not receive the notice sent through RPAD. Therefore, it was returned to the complainant on 04.07.2006. However, the notice issued through under Certificate of Posting has been served to the accused. According to the -4- CRL.RP No. 1220 of 2016 complainant, in spite of notice having been served to the accused, the accused has neither replied to the notice nor repaid the amount. Hence, it is constrained the complainant to file a complaint before the Jurisdictional Magistrate.

5. To prove the case of the complainant, the complainant examined himself as PW.1 and got marked 8 documents as Exs.P1 to P8. On the other hand, accused examined himself as DW.1 and got marked 2 documents as Exs.D1 and D2. The Trial Court after appreciating the oral and documentary evidence on record, recorded the conviction and sentenced the accused to pay a fine of Rs.95,000/-, in default of payment of fine, further directed to undergo simple imprisonment for a period of six months. Being aggrieved by the same, the petitioner herein had preferred an appeal before the Appellate Court. The Appellate Court dismissed the appeal. Hence this revision.

6. Heard Sri.Krishnamurthy G.Hasyagar, learned counsel for petitioner and Sri.G.M.Ananda, learned counsel for respondent.

CRL.RP No. 1220 of 2016

7. It is the submission of the learned counsel for petitioner that the judgment of conviction and its confirmation order passed by the Courts below are contrary to the evidence on record and therefore, the concurrent findings are required to be set aside.

8. It is further submitted that even though there is a material alteration on the cheque, that has not been considered by the Courts below while appreciating the documents on record which is contrary not only to the settled principles of law, but also, against the law of Negotiable Instruments Act. Therefore, the said findings are required to be set aside.

9. It is further submitted that the Trial Court and the Appellate Court have failed to take note of the document which is marked as Ex.D1, wherein it is clearly stated that the cheque in question was issued to the Managing Partner of Madhura Finance Corporation for having borrowed loan of Rs.10,000/- as security. If the said aspect had been considered, the impugned judgment would not have been passed as the complainant failed to prove the debt or liability.

CRL.RP No. 1220 of 2016

10. It is further submitted that the complaint ought to have been rejected on the ground of delay in lodging the complaint. However, the Courts below have ignored in considering those aspects stated supra and recorded the conviction which is required to be set aside. Making such submission, the learned counsel for the petitioner prays to allow the petition and further to substantiate his arguments, he relied on the following judgments:

1. Capital Syndicate Vs Jameela1

2. Jayatilal Goel Vs Zubeda Khanum2

3. Mohd. Sami Ansari Vs State of Chhattisgarh & Ors3

4. Channappa Vs LRs of Thimmaiah in CRL.RP No.1888/2006 (D.D : 23-5-2012)

5. A.M.Govindegowda Vs. B.V.Ravi4

6. Veerayya Vs. G.K.Madivalar5

7. BPDL Investments (Pvt.) Ltd. Vs. Maple Leaf Trading International (Pvt.) Ltd.6

8. K.M.Basappa and another Vs. Patel Marule Gowda and another7

11. Per contra, the learned counsel for respondent submits that the concurrent findings recorded by the Courts below are appropriate and the evidence of DW.1 clearly 1 (2003) 44 SCL 220 Ker 2 AIR 1986 AP 120 3 AIR 2011 (NOC) 421 (CHH.) 4 2016 (1) AKR 211 5 2012 (3) KCCR 2057 6 III (2006) BC 482 7 AIR 1951 Mysore 102 -7- CRL.RP No. 1220 of 2016 discloses that the petitioner herein had availed loan of Rs.90,000/- and issued a cheque for the said amount. However, the petitioner contended that he had borrowed only Rs.10,000/- and issued a cheque as security which has been denied and negatived by the Courts below. This Court being a Revisional Court is not empowered to appreciate the evidence but if any error or perversity is seen, that can be considered and appropriate order may be passed in that regard. Since there is no perversity or illegality in the findings, it is not necessary to interfere with the said findings.

12. It is further submitted that once the accused had issued a signed blank cheque and admitted the same, as per the settled principle, the drawee of the cheque can fill up the cheque for valuable consideration and present it for encashment. In other words, once authorization is given to the drawee to fill up the cheque under the statute, the question of material alteration would not arise. Therefore, the contention of the petitioner relating to the material alteration would not survive for consideration. Making such submission, the learned counsel for respondent prays to dismiss the petition. -8- CRL.RP No. 1220 of 2016

13. Having heard the learned counsel for the respective parties and also perused the findings of the Courts below in recording the conviction, it is appropriate to refer the evidence of both PW.1 and DW.1 and also relevant to take note of the documents for the purpose of ascertaining as to whether any error committed by the Courts below in recording the conviction.

14. It is settled principle of law that the drawee of the cheque is protected under the presumption which is provided under Section 139 of the Negotiable Instruments Act. Once the execution of the cheque is proved, the presumption has to be raised in favour of the drawee of the cheque. The drawer of the cheque has to raise a probable defence and rebut the said presumption by leading cogent evidence that the said cheque has been issued other than the debt or liability. In other words, the accused has to lead his evidence to rebut the presumption.

15. In the present case, as per Ex.P8, the accused being a drawer of the cheque replied to the notice by denying the transaction and submitted that in the year 1996, he had -9- CRL.RP No. 1220 of 2016 left Mandya and closed the transaction of the Karnataka Bank, Mandya Branch.

16. Further, in the cross-examination of P.W.1, it is elicited that P.W.1 was the Managing Partner of Madhura Finance Corporation. Further, it is elicited that another Managing Partner S.Murthy was known to P.W.1. Ex.D1 has been issued by the Madhura Finance Corporation signed by S.Murthy. The contents of Ex.D1 discloses that the accused issued the cheque which is in dispute to the finance company for having obtained the loan of Rs.10,000/-, as security.

17. In such a way, the accused has rebutted the presumption that the cheque had been issued other than the debt or the liability. Once the accused rebutted the presumption, the burden lies on the complainant to prove that he had advanced the amount to the accused and obtained the cheque to clear the loan.

18. As per the evidence of P.W.1, he lent a sum of Rs.90,000/- to the accused in the year 2003-2004 when the accused was constructing the house at Mysuru. Further, in the cross-examination, he admitted that he

- 10 -

was paying sales tax and also the income tax. However, he clarified that he had been paying sales tax and he was filing the returns. When a specific question was put to him as to whether the loan transaction has been mentioned in the said returns, he admitted that the said loan transaction did not find a place in the said returns.

19. On careful reading of Ex.D1, it appears that the cheque of the accused had been issued to the Madhura Finance while availing the loan of Rs.10,000/-, as a security. Having considering the said document, I am of the considered opinion that the accused has rebutted the presumption, however, after rebutting the said presumption, when the burden shifted on the complainant, he failed to prove the liability. Therefore, the findings of the Courts below are erroneous and not proper. Hence, the findings are required to be set aside.

20. In the light of the observation made above, I proceed to pass the following :

ORDER

(i) The Criminal Revision Petition is allowed.

- 11 -

                                             CRL.RP No. 1220 of 2016


     (ii)    The judgment of conviction and order of

             sentence      dated        29.01.2016            passed   in

C.C.No.434/2007 by the Judicial Magistrate First Class at Mandya and the judgment and order dated 02.09.2016 passed in Crl.A.No.15/2016 by the V Additional District and Sessions Judge at Mandya are set aside.

(iii) The petitioner is acquitted for the offence under Section 138 of Negotiable Instruments Act.

(iv) Bail bonds executed, if any, stand cancelled.

Sd/-

JUDGE UN