Goverdhan Reddy S/O Veerabhadra ... vs Anil Patil S/O P.B.Patil
2021 Latest Caselaw 7117 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

   DATED THIS THE 23RD DAY OF DECEMBER 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

               CRL.R.P.No.200017/2014

BETWEEN:

GOVERDHAN REDDY
S/O VEERABHADRA REDDY
AGE: 31 YEARS
OCC: BUSINESS
R/O TURUKODONA
TQ.AND DIST.RAICHUR
                                        ... PETITIONER

(BY SRI SACHIN M.MAHAJAN, ADVOCATE)

AND:

ANIL PATIL S/O P.B.PATIL
AGE: 30 YEARS,
OCC: PROPRIETOR ANIL MEDICAL AGENCY
NO.3-9-38
NEAR BOOB BHAVAN
JAIN TEMPLE ROAD
RAICHUR
                                      ... RESPONDENT

(BY SRI SHIVANAND PATIL, ADVOCATE)

       THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CRIMINAL PROCEDURE CODE, PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 12.06.2013 PASSED BY THE JMFC-II AT RAICHUR IN
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C.C.NO.1091/2009 AND THE JUDGMENT AND ORDER PASSED
BY    THE   PRINCIPAL       SESSIONS   JUDGE,    RAICHUR,       DATED
31.12.2013 IN CRIMINAL APPEAL NO.13/2013 AND ALLOW THE
ABOVE PETITION.


       THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR     ORDERS         ON     15.12.2021,     COMING       ON     FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE
THE FOLLOWING:


                              ORDER

Heard the learned counsel appearing for the

petitioner and the learned counsel for respondent.

2. This revision petition is filed challenging the

judgment and order of conviction dated 12.06.2013 passed

by the JMFC-II, Raichur in C.C.No.1091/2009 and which is

confirmed by the judgment and order passed by the

Principal District and Sessions Judge, Raichur dated

31.12.2013 in Criminal Appeal No.13/2013 for the offence

punishable under Section 138 of Negotiable Instruments

Act (hereinafter referred as the 'NI Act' for short).

3. The factual matrix of the case is that the

respondent herein is a proprietor of Anil Medical Agency,

doing the business of wholesale marketing of

pharmaceuticals (medicines) at Raichur and the petitioner/

accused is the proprietor of M/s Anil Medical and General

Stores at Kottallar, Raichur who is the retailer of the said

pharmaceuticals. The accused had transaction with the

complainant on various dates during the year April-2007 to

July-2008 and had purchased medicines on credit basis

from his wholesale agency amounting to Rs.6,00,000/- and

odd. In repayment of the part of the said amount the

accused had issued a subject matter cheque dated

24.07.2008 for an amount of Rs.4,30,527/- When the

cheque was presented, the same was returned with shara

"insufficient funds" and thereafter the legal notice was

issued and no reply was given and cause of action

complaint is filed. The complainant has examined himself

as P.W.1 and got marked documents at Ex.P.1 to P.8. The

complainant herein has filed a private complaint under

Section 200 of Cr.P.C., against the petitioner herein for the

offences punishable under Section 138 of NI Act and the

trial Court Judge in Criminal Case No.1091/2009 convicted

the accused/petitioner herein and ordered to pay an

amount of Rs.4,35,000/- and in default accused to

undergo simple imprisonment for one year and out of the

same a sum of Rs.4,30,527/- as compensation to the

complainant and remaining amount of Rs.4,473/- shall

vest with the State. The same is challenged in Criminal

Appeal No.13/2013 before the Principal District and

Sessions Judge, Raichur and on re-appreciation of

evidence available on record, the appellate Court

confirmed the order of conviction and sentence and hence,

the present revision petition is filed.

4. The main contention of the revision petitioner

before this Court is that both the courts have failed to

appreciate the material on record in proper perspective

and Ex.P.7 is generated by the complainant himself and at

the end of each receipt the receiver of the medicine is

supposed to sign, as there is such provision made in the

bills produced. None of the bills bears the signature of the

accused or anybody on his behalf. Apart from the self-

generated bill depicting alleged transaction, there is

absolutely no material to indicate the actual delivery of

medicine or the receipt by the accused and hence, the

order of conviction is erroneous and the outstanding

amount mentioned at Ex.P.1 cheque does not tally with

either Ex.P.8 or P.9. The complainant has withheld the

income tax of the relevant time of alleged transaction and

the complainant has failed to establish the transaction and

outstanding and inspite of the same, both the courts have

not appreciated the said material on record and hence, it

requires interference of this Court by exercising revisional

powers.

5. The learned counsel for the petitioner in

support of his argument, he relied upon the judgment of

the Hon'ble Apex Court in the case of Rangappa vs. Sri

Mohan reported in 2010 (5)KCCR 4063 and brought to

the notice of this Court paragraph-14, wherein it is

observed that the presumption mandated by Section 139

of the Act does not indeed include the existence of a

legally enforceable debt or liability and the same has not

been proved and that the accused has to rebut the

presumption under Section 139 of NI Act, the standard of

proof for doing so is that of 'preponderance of probabilities'

if the accused is able to raise a probable defence which

creates doubts about the existence of a legally enforceable

debt or liability, and the same has not been considered by

the trial Court as well as appellate Court. Hence, it

requires interference of this Court.

6. Per contra, the learned counsel for the

respondent would submit that issuance of cheque was

admitted and only defence was taken that during the

course of transactions, the cheque was collected and the

same was misused. In order to substantiate the same, the

revision petitioner did not step into the witness box and

rebutted the presumption and also the evidence of

complainant either in his defence evidence or in the

effective cross-examination. Apart from that he has not

given any reply when the notice was issued to him and

presumption has to be drawn in favour of the complainant

and no doubt, it is a rebuttal presumption and the same

has not been rebutted by the accused and both the courts

have given finding that transactions are not in dispute and

admittedly issuance of cheque and no reply was given and

also not rebutting the reply of the complainant and hence

there are no grounds to interference by exercising the

revisional powers regarding legality and correctness of the

order passed by both the courts.

7. Having heard the learned counsel appearing

for the petitioner and the learned counsel for the

respondent and on perusal of the material on record the

questions that would arise for consideration before this

Court are:

       i.    Whether      the    respective      courts      have
             committed     an     error   in    convicting    the

accused for the offence punishable under

Section 138 of NI Act and the appellate Court committed an error in confirming the same?

ii. Whether this Court can exercise revisional jurisdiction with regard to legality and correctness of the finding of both the courts?

       iii.     What order?


Point Nos. i and ii


       8.       Admittedly,    the       transactions    between   the

complainant and the respondent were on credit basis and

medicines were supplied on credit basis is not in dispute.

Having considered the defence of the revisional petitioner

before the trial Court his main defence is that, the cheque

was collected during the said transactions and the blank

cheque was misused and no such liability and the liability

is also not properly quantified by the complainant.

Learned counsel for the revisional petitioner would mainly

brought to the notice of this Court Ex.P.4 legal notice,

paragraph-2, wherein the complainant has stated that the

transactions between both of them is continuous account

between April-2007 and July-2008 and also purchased

medicines on various dates for various amounts amounting

to Rs.6,00,000/- and odd and the revision petitioner failed

to pay the said amount and in response to the balance

amount he gave the cheque. The learned counsel would

vehemently contend that in the notice it is mentioned that

due of Rs.6,00,000/- and the cheque was given for

Rs.4,30,527/- and on perusal of cheque Ex.P.1, dated

24.07.2008 was for an amount of Rs.4,30,527/- and this

cheque covers the period between April-2007 and July-

2008 and though it is the contention of the complainant

that due was for Rs.6,00,000/-, in the last week of July-

2008 cheque was given. The other contention of the

learned counsel for the petitioner that Ex.P.9(a) discloses

balance of Rs.2,90,604/- but claim is more than the said

amount. Ex.P.9(a) discloses income tax assessment for the

year 2008-09 and balance sheet as on 31.03.2008, hence,

it is clear that during the month of March-2008, current

assets receivables is mentioned as Rs.2,90,604/-. The very

case of the complainant is that the transactions have taken

place between April-2007 and July-2008 and as on the

date 31.03.2008 balance was Rs.2,90,604/- and this

assessment pertains to the year 2008-09 and hence, it is

clear that much amount was pending and the transactions

were even continued as contended by the complainant in

July-2008 also. The complainant also relied upon the

document Ex.P.7 i.e., credit bill register from 01.04.2008

to last transaction 26.09.2008. The learned counsel would

vehemently contend that even subsequent to the issuance

of cheque also, the bills are produced, even till the month

of September-2008. No doubt, this document does not

bear the signature as contended by the revision petitioner,

but he did not dispute the transactions taken place

between the complainant and accused and though cheque

is dated 24.07.2008, cheque was presented in the month

of November-2008 and bank endorsement is clear that

funds insufficient vide intimation dated 21.11.2008 and

hence, Ex.P.7 discloses the transaction have taken place

even subsequent to the issuance of cheque. Hence, the

petitioner cannot find fault with the continuation of the

transactions of the accused even for the month of

September-2008 also. It is also important to note that the

ledger extract is also marked as Ex.P.8 and counsel

referring this Ex.P.8 certified copy which is produced

before him also submits that even subsequent to the

issuance of cheque also transactions have taken place in

the month of August and September-2008 and hence, it is

clear that Ex.P.7 corroborates that the transactions were

continued till September-2008. When such being the fact

material available on record, the counsel cannot contend

that the bills have not been counter signed by the

petitioner herein.

9. Apart from that, when the cheque was issued

there is a presumption under Section 118 and 139 of NI

Act that the same is given towards debt or legal liability

and the revision petitioner has not disputed issuance of

cheque and only his defence is that during the course of

transactions blank cheque was collected and in order to

prove the said fact, even he did not choose to enter into

the witness box and not adduced any rebuttal evidence.

During the course of cross-examination of P.W.1 also there

is no effective cross-examination to rebut the evidence of

the complainant. It is settled law that accused can rebut

the evidence of complainant by effective cross-examination

and also adducing the rebuttal evidence and I have already

pointed out that there is no any rebuttal evidence given by

the accused and also in the cross-examination of P.W.1,

there is no effective cross-examination to rebut the

evidence of the complainant. The only admission elicited

from the mouth of P.W.1 no reference with regard to

acknowledging the delivery challan and elicited that in

terms of Ex.P.9, due was only for Rs.2,90,604/- and

admits that in Ex.P.9 there is no acknowledgment from

income tax department and admits that on Ex.P.8 no

signature of the revisional petitioner and except these

answers elicited from the mouth of the witness, in the

cross-examination P.W.1 categorically says that Ex.P.1

cheque was given by the revisional petitioner and there is

no effective cross-examination with regard to that there

was no such transaction between them and no transaction

were taken place. Apart from that when there is a

presumption in favour of the complainant ought to have

been rebutted by the accused/ revisional petitioner and the

same has not been done. The principles laid down in the

judgment of Rangappa's case referred supra is not

applicable to the facts on hand. Since first of all there is

no any rebuttal evidence and accused is unable to raise

the probable defence which creates doubt about the legally

enforceable debt or liability and apart from that, in the

very same judgment the Hon'ble Apex Court held that not

raising a probable defence, the appellant/accused was not

able to contest the existence of a legally enforceable debt

or liability and the legal notice was issued to the revisional

petitioner and acknowledging the legal notice, he has not

given any rebuttal reply and when such being the

circumstances, it is further observed that when the

accused not denied signature on the cheque belongs to

him the statutory presumption come into play and the

same has not been rebutted even with regard to the

material submitted by the complainant and hence, this

judgment is helping either side i.e., complainant in the

case on hand also cheque was admitted and issue of legal

notice was admitted and transaction between the

revisional petitioner and the respondent is admitted and

the revisional petitioner has not led any rebuttal evidence

and there is no any effective cross-examination rebutting

the evidence of the complainant and these are the facts

considered by the trial Court as well as the appellate Court

while re-appreciating the material on record. Hence, I do

not find any error committed by the respective courts in

appreciating the evidence and also I do not find any

illegality committed by both the courts giving finding based

on the material on record and hence, this Court cannot

exercise the revisional powers to disturb the finding of

both the courts as the same is not suffering from any

illegality and correctness of the finding. Hence, the

petitioner has not made out any ground to exercise the

revisional power.

Point No.iii

10. In view of the observations made above, I pass

the following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

VNR