Karnataka High Court

Inthiyaz vs K. Sundar on 22 December, 2021

Bench: V Srishananda

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 22ND DAY OF DECEMBER, 2021

                     BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.540/2021

BETWEEN:

INTHIYAZ,
S/O LATE AJEEJ,
AGED ABOUT 45 YEARS,
RESIDING AT DODDAKOWLANDE VILLAGE,
KOWLANDE HOBLI,
NANJANGUD TALUK,
MYSURU DISTRICT - 571 312.
                                     ... PETITIONER
(BY MS.GOWHAR UNNISA, ADVOCATE)

AND:

K. SUNDAR,
S/O LATE KRISHNAPPA,
AGED ABOUT 40 YEARS,
RESIDING AT CHAMALAPURA STREET,
NANJANGUD TOWN,
MYSURU DISTRICT - 571 301.
                                     ...RESPONDENT
(BY SRI.P.MAHESHA, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF CR.PC
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND SENTENCE DATED 16.01.2020 PASSED BY THE II
ADDITIONAL CIVIL JUDGE AND JMFC, NANJUNGUD IN
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C.C.NO.1012/2010 AND JUDGMENT AND ORDER DATED
03.02.2021 PASSED BY THE I ADDITIONAL SESSIONS
JUDGE, MYSURU IN CRL.A.NO.53/2020.


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

                         ORDER

Heard Ms. Gowhar Unnisa, learned counsel appearing

for the revision petitioner, Sri. P. Mahesha, learned counsel

appearing for the respondent at the stage of admission

itself and perused the records.

2. This revision petition is filed against the order

dated 16.01.2020 whereby the accused came to be

convicted for the offence punishable under Section 138 of

the Negotiable Instruments Act, 1881 and ordered to pay

fine of Rs.1,50,000/- with default sentence of six months

simple imprisonment. Out of the fine amount,

Rs.1,45,000/- was ordered to be paid as compensation to

the complainant which was confirmed in Crl.A. No.53/2020

by order dated 03.02.2021 by the I Additional Sessions

Judge, Mysuru.

3. Brief facts of the case are as under:

A complaint came to be filed against the revision

petitioner - accused by the complainant contending that in

the month of October - 2009, the accused approached him

and borrowed a loan of Rs.1,00,000/- for his family

necessities agreeing to repay the same within three

months. Despite the lapse of three months, the accused

prayed to repay the amount and upon repeated requests,

he passed a cheque bearing No.885271 dated 03.02.2010

in a sum of Rs.1,00,000/- drawn on HDFC Bank,

Saraswathipuram, Mysuru. The said cheque on

presentation got returned with an endorsement 'Drawer

Signature Differs'. Thereafter, the complainant had issued

the legal notice to the accused dated 20.02.2010 through

RPAD and certificate of posting.

4. He further contended that the accused despite

service of notice, did not reply nor complied the callings of

the notice and therefore, the complainant was constrained

to file the complaint seeking action against the accused for

the offence punishable under Section 138 of the NI Act.

5. Thereafter, learned trial Magistrate after

following the necessary formalities, secured the presence

of the accused and plea was recorded. Accused pleaded

not guilty. In order to prove the case of the complainant,

the complainant got examined himself as PW.1 and relied

on five documentary evidences, which were exhibited and

marked at Exs.P1 to P5 comprising of Cheque and

signature of the accused at Ex.P1 and P1(a), Endorsement

issued by the Bank at Ex.P2, legal notice at Ex.P3, postal

acknowledgment and signature of the accused at Ex.P4

and P4(a) and certificate of posting at Ex.P5 respectively.

6. On conclusion of the complainant's evidence,

the accused statement as contemplated under Section 313

of Cr.P.C. was recorded wherein the accused has denied all

the incriminating materials. Further, the accused did not

placed his version about the incident by examining himself

or filing any written submission as is contemplated under

Section 313(5) of Cr.P.C.

7. The trial Magistrate took notice of the

presumption available to the complainant under Sections

118 and 139 of the NI Act and in the absence of any

rebuttal evidence placed by the accused, recorded a

categorical finding that the accused has committed an

offence punishable under Section 138 of the NI Act and

convicted the accused and passed the sentence as referred

to supra.

8. Being aggrieved by the same, the accused filed

an appeal in Crl.A. No.53/2020 before the I Additional

Sessions Judge, Mysuru.

9. Learned Judge in the First Appellate Court

secured the records and after hearing the parties in detail

in the light of the grounds urged in the appeal

memorandum dismissed the appeal by judgment dated

03.02.2021 and confirmed the order passed by the learned

trial Magistrate. Being aggrieved by the same, the

accused preferred this revision petition.

10. In the revision petition, the following grounds

are raised:

• The accused most respectfully submits that the findings given by the Hon'ble Trial Court and the Hon'ble Appellate Court is opposed to Law, facts and evidence on record and it is opposed to all legal probabilities and hence the appeal is to be allowed and the Judgment of Conviction and Order of sentence passed by the Hon'ble trial Court against the appellant/accused is to be set aside.

• The accused submits that the complainant failed to prove his case beyond reasonable doubt and the complainant failed to bring the offence against the accused within the four corners of the definition of Section 138 of the Negotiable Instruments Act. Hence, the learned Magistrate committed grave error in convicting the accused.

• The Hon'ble Courts below ought to have seen that the complainant failed to discharge his initial burden

and failed to prove existence of legally recoverable debt and liability. The Hon'ble Courts below ought to have held that presumption under Section 139 of the Negotiable Instruments Act is not available to the complainant.

• It is the case of the complainant as per complaint, that in the month of October 2009 the accused obtained loan of Rs.One lakh from the complainant agreeing to repay the same in three months. The accused could not return the amount within three months. After lapse of three months the complainant approached the accused and demanded for repayment of above debt. Instead of payment of above said debt, the accused issued the cheque vide Ex.P-1. On the contrary the complainant has stated in the cross examination that at the time of obtaining loan the accused has issued the cheque.

• It is the defence of the accused that at the time of obtaining loan of Rs.20,000/- from the complainant the accused had issued blank cheque by way of security to the complainant without signature. The complainant misused the said cheque by signed it and presented for encashment.

• In view of the fact that the cheque was returned for the reason "Drawer's Signature Differs" as well as

admission of the complainant in his cross examination that signature of accused in vakalath and cheque is different, establishes the defence that the accused has not signed the cheque - Ex.P-1.

• The complainant has vaguely stated that he has advanced loan to the accused in the month of October 2009 and failed to mention specific date of advancing loan of Rs.One lakh.

• The Hon'ble Courts below ought to have seen that the complainant failed to produce any documentary evidence to establish that he has paid loan of Rs.1,00,000/- to the accused.

• Even though the complainant has stated in his cross examination that he paid money to the accused in presence of Darshini Hotel owner Mr. Puttaswamy but the complainant did not examine him to establish his case. The Hon'ble Courts below ought to have seen that the complainant has not examined any witness to the loan transaction.

• The petitioner submits that the complainant failed to establish his capacity to pay the loan of Rs.1,00,000/- to the accused.

• The complainant has admitted in cross-examination that he has advanced loan to other persons also but he did not maintain any account.

• The Hon'ble Courts below ought to have seen that Section 138 of the Negotiable Instruments Act incorporates strict liability, being a penal provision, it has to be construed strictly.

• The sentence imposed by the learned Magistrate and confirmed by the learned Sessions Judge is very harsh.

• Viewed from any angle the judgment and order passed by the Hon'ble Courts below is incorrect, illegal and improper and not sustainable in law and on facts of the case.

• The petitioner is producing herewith certified copy of judgment and order dated 16.01.2020 passed by the Learned II Addl. Civil Judge and Judicial Magistrate First Class at Nanjangud in C.C. No.1012/2010 at Annexure - A and certified copy of the judgment and order dated 03.02.2021 passed by the learned II Addl. Sessions Judge, Mysuru in Criminal Appeal No.53/2020 at Annexure - B.

• The petition is filed in time.

• No other case has been filed or pending before this Hon'ble High Court or any other Court seeking the relief sought in the petition."

11. Reiterating the above grounds, Ms. Gowhar

Unnisa, learned counsel appearing for the revision

petitioner vehemently contended that both the Courts have

failed to appreciate the materials on record in proper

perspective and wrongly convicted the accused and sought

for allowing the revision petition.

12. Per contra, Sri. P. Mahesha, learned counsel

appearing for the respondent supports the impugned

judgments.

13. This Court having regard to the limited scope