Karnataka High Court

Sri H Venkataramana vs Sri Gopala Krishna Ballal on 23 December, 2021

Bench: V Srishananda

                         1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 23RD DAY OF DECEMBER, 2021

                      BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

              CRL.RP. NO.105 OF 2013

BETWEEN:

SRI.H.VENKATARAMANA
PROPRIETOR
UDUPI UPAHARA,
NO.3, BSK III STAGE,
III PHASE, 6TH BLOCK,
KATRIGUPPE MAIN ROAD,
BENGALURU - 560 085.
                                       ... PETITIONER
(BY SRI.PRADEEP NAIK.K, ADVOCATE)

AND:

SRI.GOPALA KRISHNA BALLAL
S/O LATE M.VYASARAYA BALLAL
AGED ABOUT 62 YEARS,
R/AT NO.6/7/12, CRESCENT ROAD,
HIGH GROUNDS,
BANGALORE - 560 001.
                                       ...RESPONDENT

(BY SRI.V.ANAND, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 CR.PC PRAYING TO SET ASIDE THE
ORDER DATED 27.11.2012 PASSED IN CRL.A.NO.536/2012
BY THE P.O., FTC (SESSIONS)-XI, BANGALORE AND ALSO
THE JUDGMENT AND SENTENCE DATED 24.07.2012
PASSED BY THE XV ADDL.C.M.M, BANGALORE IN C.C.
NO.13929/2006.
                              2

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


                     ORDER

Heard Sri.Pradeep Naik, learned counsel for the

revision petitioner and Sri.V.Anand, learned counsel

for respondent.

2. This revision petition is filed by the

accused who suffered an order of conviction in CC

No.13929/2006 whereby the accused is convicted for

the offence punishable under Section 138 of the

Negotiable Instruments Act and ordered to pay fine of

Rs.2,10,000/- out of which, a sum of Rs.2,00,000/- to

be paid as compensation to the complainant which

was confirmed in Criminal Appeal No.536/2012 dated

27.11.2012 on the file of Presiding Officer, Fast Track

Court (Sessions)-XI, Bangalore.

3. The brief facts of the case are as under:

A complaint came to be filed by the complainant

contending that in the first week of April 2004, the

accused approached the complainant seeking financial

assistance to the tune of Rs.2,00,000/- to meet his

business commitments and accordingly on

10.04.2004 complainant advanced hand loan of

Rs.2,00,000/- by way of cash to the accused and

accused agreed to repay the same with interest at

18% p.a. Despite repeated demand, the accused did

not repay the hand loan. In the last week of October,

2004, accused issued two cheques dated 20.11.2004

and 18.12.2004 respectively towards the repayment

of the hand loan. The complainant was surprised to

note that when the cheques were sent for

encashment, the cheques were returned with an

endorsement 'PAYMENT STOPPED BY THE DRAWER'.

Immediately, the complainant orally informed the

same to the accused and demanded for the amount

covered under the cheques. Again the accused

expressed his financial difficulty and failed to pay such

amount. As such, the complainant was constrained to

issue legal notice and legal notice is served on the

accused. However, the accused has sent an

untenable reply, which necessitated the complainant

to file a complaint under Section 200 of Cr.P.C

seeking action against the accused for the offence

punishable under Section 138 of the Negotiable

Instrument Act.

4. After completing the formalities, the

learned Magistrate issued summons to the accused

and presence of the accused was secured. Plea was

recorded and accused pleaded not guilty and as such,

trial was held.

5. In order to prove the case of the

complainant, complainant got examined as PW1 and

relied on 12 documentary evidence which were

marked and exhibited as Exs.P1 to P12. In order to

rebut the presumption available to the complainant,

accused himself examined as DW1 and also one

witness on his behalf by name Prakash as DW.2.

Accused also relied on nine documents which were

marked and exhibited as Exs.D1 to D9. In the

accused statement recorded by the learned

Magistrate, accused has denied all the incriminating

circumstances formed against him. Thereafter, the

learned Magistrate after considering the material

evidence on record produced by the parties, came to

be recorded a categorical finding that the oral and

documentary evidence placed on record by the

accused is not sufficient to rebut the presumption

available to the accused under Section 139 of the

Negotiable Instrument Act and recorded an order of

conviction against the accused for the offence

punishable under Section 138 of the Negotiable

Instrument Act and ordered a fine of Rs.2,10,000/-

out of which, Rs.2,00,000/- was ordered to be paid as

compensation and in default to suffer simple

imprisonment for six months.

6. Being aggrieved by the order of the

learned Magistrate convicting the accused for the

offence punishable under Section 138 of the

Negotiable Instrument Act, accused preferred an

appeal before the District Court in Crl.A.No.536/2012.

The learned Judge in the First Appellate Court after

securing the records and reappreciating the material

evidence on record and in the light of the grounds

urged in the appeal memorandum, by judgment dated

27.11.2012 dismissed the appeal of the accused and

confirmed the order passed by the learned Magistrate.

Being aggrieved by the same, accused is before this

Court.

7. In this revision petition, the following

grounds are raised:

¾ "The petitioner submits that, the judgments and sentence passed by the

courts below, sentencing the pay fine of Rs.2,10,000/- (Rupees two lakhs ten thousand only), in default to suffer S.I. for 6 months to the Respondent are illegal and requires interference by this Hon'ble Court.

¾ The petitioner submits that, both the impugned judgments were suffers from probabilities and opposed to the facts and circumstances of the case, which are contrary to the case put forth by the parties and oral and documentary evidence placed on record.

¾ The petitioner submits that, it is his specific case that, he has not issued any cheque to the complainant since there is no transaction between the accused and the complainant, a cheque in question has been obtained by the brother of the complainant who was running a financial institution by name Yeshaswini Finance Company, the petitioner herein issued a blank signed cheques for security purpose which has been misused by the respondent herein, even though there is no legally recoverable debt due from the accused. This aspect has not properly gone into by both the courts below.

¾ The petitioner submits that, admittedly as per the pass book produced by the petitioner which is at Ex.D.7 the cheques in question were drawn in the year 1999, but the respondent presented the same in the year 2004 that itself makes it very clear the cheques obtained earlier for the security purpose were presented after

lapse of more than 5 years and it is time barred claim made by the Respondent herein, this aspect has not gone into by both the courts while passing the impugned order of conviction. By verifying Ex.P2 it is very clear that the cheque is of the year 1999 and the Respondent for his convenience filled the dated on 20.11.2004 and presented it. This aspect has not been verified by both courts while passing the impugned judgments.

¾ The petitioner submits that, he has taken a specific plea that there is no transaction between him and the Respondent herein and it is admitted fact that the brother of the Respondent one Sri.Anantha Padmanabha Ballal is the proprietor of Yeshaswini Finance Company. The petitioner borrowed some amount from the said finance and for security purpose he issued the above two cheques in question. Moreover he has examined one witness by name Prakash who is the employer of the Yeshaswini Finance and who specifically stated that the brother of the Respondent was the Proprietor of the said finance company and now it is liquidated and as per a letter issued by the said company as per Ex.D3 it has been specifically stated no dues against the two cheques which are marked at Ex.P2 & 3 in the case, inspite of the same, both the courts wrongly came to the conclusion that, the petitioner failed to prove that the, Respondent is a stranger. Both the courts ought to have dismiss the

complaint, hence the impugned order calls for interference by this Hon'ble Court.

¾ The     petitioner  submits    that,    the
  Respondent      himself  in    the    cross

examination admitted that, his annual income is only Rs.1,50,000/- and inspite of the specific contention taken by the petitioner that, Respondent have no capacity to advance the loan of Rs.2,00,000/- within 10 days from the date of demand made by the petitioner has not at all considered by both the courts, hence the impugned orders suffered from sound reasoning.

¾ The petitioner submits that, as a prudent man be lodged the complaint before the jurisdictional police on 30.11.2004 as Ex.D9 and on the same day he addressed a letter to the Central Bank of India as per Ex.D4 requesting to stop payment of the amount involved in cheques in question. But the both the courts wrongly come to the conclusion that, on the same day two documents are created, hence it cannot be believed. Regarding insertion of cheque Numbers are concerned after obtaining the computerized print out after verification the cheques No.s are written and when the employee of the concerned finance has deposed before the court, there is no reason to disbelieve those documents. On the other hand the Respondent misused the cheques for his benefit, with active collusion with his brother, which has to be taken note of by the courts below. But wrongly convicted

the petitioner herein, which calls for interference by this Hon'ble Court.

¾ The petitioner submit that, even though he has relied on several judgments of this Hon'ble Court and as well as the Supreme court of India no reasons are assigned for not made applicable of those citations to the present case on hand. On this ground, also the impugned judgments are unsustainable law.

¾ The petitioner may be permitted to urge other grounds at the time of arguing the matter before this Hon'ble Court.

¾ The petitioner submits that, he has not filed any other petition/s challenging the impugned judgments before this Hon'ble Court or any other courts, challenging the same. The petition filed today is within time."

8. Re-iterating the grounds urged in the

revision petition, Sri.Pradeep Naik vehemently

contended that both the Courts have not properly

appreciated the material evidence on record and

wrongly convicted the accused resulting in

miscarriage of justice and sought for allowing the

revision petition.

9. Per contra, learned counsel for the

respondent supported the impugned judgment and

prayed for dismissal of Revision Petition.

10. In view of the rival contentions of the

parties and having regard to the limited scope of

revisional jurisdiction, the following points would arise

for consideration:

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

            2.      Whether        the   sentence     is
      excessive?"

11. In the case on hand, admittedly the

cheques issued at Exs.P2 and P3 and signatures

marked at Exs.P-2a and P3a are not in dispute. When

once the issuance of cheques and signatures found

therein are not in dispute, automatically the

complainant enjoys a statutory presumption as is

found in Sections 118 and 139 of the Negotiable

Instruments Act. Admittedly, cheques were not

honoured. Legal notice issued is served on the

accused and the reply is also sent. However, there is

no compliance with the callings of the notice. In order

to rebut the said presumption available to the

complainant, accused examined himself as DW.1 and

also placed on record the testimony of another

witness by name Prakash. Accused also relied on nine

documentary evidence on record. The learned

Magistrate discussed the veracity of the documents

placed by the accused and the oral and documentary

evidence on record in paragraph No.20 in detail.