Karnataka High Court

Sri S N Raju vs Sri R Raju on 20 December, 2021

Bench: V Srishananda

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 20TH DAY OF DECEMBER, 2021

                       BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.407/2016

BETWEEN

SRI S N RAJU
S/O LATE CHANDRAPPA @ CHANDRA BABU,
AGED ABOUT 60 YEARS,
D-GROUP EMPLOYEE
NADAKACHERI, JAYAPURA,
MYSURU TALUK,
MYSORE-570 004
                                      ...PETITIONER
(BY SRI JAIRAJ G, ADVOCATE)

AND


SRI R RAJU
S/O LATE H.RAMABOVI,
AGED ABOUT 49 YEARS,
RESIDENT OF NO.8
LINGAMBUIDI PALYA,
SRIRAMPURA POST,
MYSORE-570004

                                    ...RESPONDENT
(BY SMT.K.T.PREMALATHA, ADVOCATE)
                              2

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCES
PASSED BY THE LEARNED 1st ADDL. FIRST CIVIL JUDGE
AND JMFC AT MYSORE IN C.C.NO.72/2012 DATED
04.02.2013 AND JUDGMENT OF CONFIRMATION PASSED
BY   THE   HON'BLE   7th  ADDL.S.J., MYSORE    IN
CRL.A.NO.71/2013 DATED 12.01.2016 AND PRAYS FOR
ACQUIT THE PETTIIONER.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                           ORDER

Heard Sri Rajanna, learned counsel representing Sri

Jairaj G., learned counsel for the Revision Petitioner and

Smt. K.T.Premalatha, learned counsel for the respondent

and perused the records.

2. This Revision Petition is filed by the accused,

who suffered an order of conviction in C.C.No.72/2012, on

the file of the I Additional Civil Judge and JMFC, Mysore by

Judgment dated 04.02.2013, whereby he has been

convicted for the offence punishable under Section 138 of

the Negotiable Instruments Act, 1881 (hereinafter referred

to as 'the NI Act' for short), which was confirmed in

Criminal Appeal No.71/2013, on the file of the VII

Additional Sessions Judge, Mysore by judgment dated

12.01.2016.

3. Brief facts of the case are as under:

A complaint came to be lodged that on 10.07.2007

accused borrowed a load of Rs.2.00 lakhs agreeing to

repay the same with interest at 18% p.a. and executed a

on demand promissory note and consideration receipt. The

accused did not repay the amount despite repeated

demands. On 06.06.2007, however, accused issued post

dated cheque bearing no.449960 dated 10.10.2011 in a

sum of Rs.3,53,000/- in respect of the loan amount. On

presentation of the cheque, it got dishonored with an

endorsement 'insufficient funds'.

The complainant issued a statutory notice on

22.10.2011. Though notice is duly served, there is no

compliance to the callings of the notice. Hence,

complainant filed a complaint against the accused for

action under Section 138 of the NI Act.

4. The learned Magistrate after completing the

formalities, secured the presence of the accused and plea

was recorded. Accused pleaded not guilty and as such,

trial was held.

5. In order to prove the case of the complainant,

complainant got examined himself as PW.1 and relied on 9

documentary evidence which were marked and exhibited

as Exs.P1 to 9. Thereafter, accused statement as

contemplated under Section 313 Cr.P.C was recorded,

wherein accused denied all the incriminatory circumstances

found against him. However, accused examined himself as

DW.1 and relied on 2 documents, which were exhibited

and marked as Exs.D1 and D2.

6. Thereafter, learned Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record, convicted the accused

for the aforesaid offence and sentenced him to pay fine of

Rs.3,73,000/- and with default, sentence of simple

imprisonment for six months and out of fine of amount

recovered, a sum of Rs.3,71,000/- was ordered to be paid

as compensation to the complainant.

7. Being aggrieved by the same, accused

preferred an appeal in Criminal Appeal No.71/2013.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, dismissed the

appeal and confirmed the order of conviction and sentence

passed by the learned Magistrate. Thereafter, the accused

has preferred this Revision Petition.

8. In the Revision Petition, the following grounds

are raised:

The learned Magistrate as well as Appellate Court have grossly erred in coming to conclusion that the petitioner is guilty of the alleged offence on the sole oral and interested testimony of the respondent herein.

The Judgement passed by the learned Magistrate and Hon'ble Sessions Judge is bad in law and opposed to all principles of law and passed mechanically without applying judicial mind.

The Learned Magistrate and Hon'ble Sessions Judge have failed to observe that, the respondent failed to produce any document to show that on what date and on what circumstances the cheque in question came to be issued to the respondent which goes to the root of the case.

Both Courts have failed to observe that, the respondent has not at all proved the fact of issuing the cheque in question to clear the legal liability.

Both Courts have taken totally erroneous view of the fact of alleged issuance of cheque by the petitioner to the respondent.

Both courts have taken a strange erroneous view of not appreciating the bonafides of the petitioner and has not given same weightage to the cross- examination of PW-1, defence evidence adduced by the petitioner and marking documents Ex.D-1 and Ex.D-2 which goes to show that on the date of presentation of cheque there was no legal liability of Rs.3,53,000/- from the petitioner towards the respondent Bank.

Both courts failed to observe that, the respondent/complainant has failed to produce any documentary evidence to show that, how and when the money was paid to the petitioner and the

respondent/complainant not at all examined any independent witnesses regarding alleged payment of money.

Both the courts have passed the judgement without hearing the petitioner and sentence passed without hearing him which is opposed to law.

Both courts have failed to observe that, the cheque in question as taken as security until completion of earlier loan transaction of Rs.20,000/- by force and the cheque in question is nothing to do with the monetary transaction between the parties as such no legal liability whatsoever can be attached on the cheque.

Both courts failed to observe that, the respondent is claiming excess amount from the petitioner.

Both courts erred by not observing the fact that, the Ex.P1 on which the complaint was filed was issued against the time barred debt.

Both the courts below was erred by not noticing the fact that the complainant himself as admitted in Ex.P-3 that the Ex.P-1 was issued for a sum of Rs.2,00,000/- and after the receipt of reply notice of the petitioner, the respondent has chosen to

issue rejoinder which clearly shows that the Ex.P-1 was created by the respondent.

Both the courts below has erred not noticing the fact in the complaint and Ex.P-3 notice that when the On demand Promissory Note is about to be barred by limitation the respondent on 06.06.07 demanding the return the loan amount, the petitioner by citing his financial difficulties, on 06.06.2007 as issued the cheque (ex./P-1) that is much before the execution of pronote (10.07.2007) under which the respondent alleges that he has advanced the loan of Rs.2,00,000/- to the petitioner, which clearly shows that the respondent has misused the cheque which was given as security at the time of taking hand loan of Rs.20,000/- from the respondent.

Both the courts below erred by not noticing the fact in the examination-in-chief of the PW.1/Respondent he depose that "When the pronote date coming to be barred by limitation on 06.06.2009. The respondent demanded for return of the loan amount the petitioner told that he is in financial crisis and on 06.06.2009 the petitioner issued post-dated cheque Ex.P-1" which contradicts his own statement made in the complaint and legal notice Ex.P-3.

Both the courts below erred by not noticing the fact that the respondent himself states in the Ex.P-3 legal notice that on 10.07.2007 the respondent has advanced an hand loan of Rs.2,00,000/- and while taking hand loan on 10.07.2007 the petitioner has given his salary certificate dated 01.09.2007 and further executed pronote dated 10.07.2007 for receiving the loan from the respondent" which is far from the true that how the person gets his salary certificate in advance of two months.

It is further stated that the contention of the respondent stating that, the petitioner request the respondent the loan of Rs.2,00,000/- for the purpose of purchasing a site at Revenue Employees Housing Co operative Society at Mysuru, but the respondent has not produced any documents for such transaction and therefore a false case came to be filed against the petitioner.

It is further submitted that the respondent not at all produced any documents to show that having capacity to pay the huge amount of Rs.2,00,000/- to the petitioner and he has not produced any documents to show that he was an Income Tax Assessee. There is non compliance of Sec. 269 (ss) of Income tax Act. And on the allegation that the respondent say that being a contractor that aspect he has not produced any contract licence or any

documents for having any other source of income to pay the debt to the petitioner.

Viewed from any angle, the case of the respondent does not survive either in law or on facts and liable to be dismiss the complaint by allowing this Revision petition.

The petitioner craves the kind leave of this Hon'ble Court to urge any other ground/s at the time of final arguments."

Reiterating the above grounds, learned counsel for the

Revision Petitioner vehemently contended that both the

Courts have not properly appreciated the materials on

record and wrongly convicted the accused resulting in

miscarriage of justice and thus, sought for allowing the

Revision Petition.

9. Per contra, learned counsel for the respondent

supported the impugned judgments and sought for

dismissal of the Revision Petition.

10. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

following points would arise for consideration:

"1. Whether the finding recorded by the learned Magistrate that accused is guilty of the offence punishable under Section 138 of NI Act, which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

11. In the case on hand, issuance of the cheque

and signature found therein is not in dispute. As such, the

complainant enjoys the presumption under Section 118

and 139 of the NI Act. Complainant having stepped into

the witness box and reiterating the contents of the

complaint and relying on demand promissory note, has

discharged the initial burden. The accused no doubt

examined himself as DW.1 to rebut the presumption

available to the complainant. But, his oral testimony is not

sufficient to rebut the presumption. Accused also took a

contention that the debt was time barred. But, Trial

Magistrate, after considering the principles of law

enunciated by this Court in the case of Basanthi Pictures

Vs. M.A.Ganesh Murthy, in Crl.Appeal No.758/2004,

in paragraph 5 has held as under:

"5. It is the contention of the learned counsel for the appellant that the cheque issued by the accused contains a promise to pay a time barred debt and therefore, a fresh cause of action arises by issuance of the cheque by the accused to the complainant towards payment of the time barred debt. Therefore, he contends that the debt due is not barred by limitation. It is his further contention that the accused after issuance of the cheque, which was bounced subsequently, was not paid the amount under the cheque to the complainant. Therefore, he claims that the approach of the trial Court in accepting the defence of the accused is erroneous and illegal."

12. The learned Judge in the first Appellate Court

re-appreciated the materials on record and has relied on

the judgments of the Hon'ble Apex Court in the case of

A.V. Murthy Vs. B.S.Nagabasavanna reported in AIR

2002 SC 985 and H. Narasimha Rao Vs. R. Venkatram

reported in ILR 2006 KAR 4242 and K.L. Beena Vs.

Muniyappan and another reported in AIR 2001 SC

2895, rejected the grounds urged in the appeal

memorandum and dismissed the appeal.

13. This Court, having regard to the limited

Revisional jurisdiction, re-considered the materials on

record in the light of the grounds urged in the Revision