T G Balaji Gajarajan vs Sundar Raj R
2021 Latest Caselaw 1281 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF JANUARY 2021

                           BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No.385 OF 2012

BETWEEN:

T.G. Balaji Gajarajan
S/o. T.K. Gajarajan,
Aged about 49 years,
R/at No.71,
Sri Tulasiramdas Matt Road,
Bangalore - 560 005.
                                                   ..Petitioner
(By Sri. Vishnu Hegde, Advocate)

AND:

Sundar Raj R.
S/o. Late M. Ramaiah,
R/at No.141, Nagawara Palya
C.V. Ramannagar,
3rd Cross, Bangalore.
                                                 .. Respondent

(By Sri. Jeevan K., Advocate)
                                ****
      This Criminal Revision Petition is filed under Section 397
read with Section 401 of Cr.P.C. praying to set aside the
judgment dated 30-07-2008 in C.C.No.26198/2006 passed by
the learned XIV Additional Chief Metropolitan Magistrate at
Bangalore and the impugned judgment dated 18-01-2010 in
Criminal Appeal No.25080/2008 passed by the learned Fast
Track Judge, FTC-III, Presiding Officer and Additional Sessions
Judge, Mayo Hall Unit, Bangalore etc.
                                                       Crl.R.P.No.385/2012
                                    2


      This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this
day, the Court made the following:

                              ORDER

The present petitioner as the accused was tried by the

Court of the learned XIV Additional Chief Metropolitan

Magistrate, Bangalore, (hereinafter for brevity referred to as the

"Trial Court"), in C.C.No.26198/2006 for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881

(hereinafter for brevity referred to as the "N.I. Act") and was

convicted for the said offence by its judgment of conviction and

order on sentence dated 30-07-2008.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Fast Track Court-III, Presiding Officer and

Additional Sessions Judge, Mayo Hall Unit, Bangalore,

(hereinafter for brevity referred to as the "Sessions Judge's

Court") in Criminal Appeal No.25080/2008.

The appeal was contested by the respondent who was the

complainant in the Trial Court. The Sessions Judge's Court in its

order dated 18-01-2010 dismissed the appeal, confirming the Crl.R.P.No.385/2012

judgment of conviction and order on sentence passed by the

Trial Court dated 30-07-2008 in C.C.No.26198/2006.

Aggrieved by the said judgment, the accused has preferred

this revision petition.

2. The summary of the case of the complainant in the Trial

Court is that, the accused is the friend of the complainant and he

promised to sell his house located near Coles Park area to the

complainant. Before selling the house, the accused sought a

hand loan of a sum of `2,00,000/- to clear his personal loans.

He promised to sell the said house property or to return the

money of the complainant. Believing him, the complainant paid

him hand loan of `2,00,000/- in May 2005 and in return, the

accused gave a typed post-dated cheque bearing No.270371

dated 05-08-2005 for a sum of `2,00,000/-, promising either to

return the borrowed amount or to execute a Sale Deed within

three months. On 03-08-2005, when the complainant

approached the accused, he expressed his inability to sell the

house, but asked the complainant to present the cheque for its

realisation. Accordingly, the complainant presented the cheque

for its realisation through his banker, only to receive the return Crl.R.P.No.385/2012

of the cheque un-paid with a banker's shara 'funds insufficient'.

Thereafter, the complainant got issued a legal notice to the

accused through Registered Post Acknowledgment Due (RPAD)

as well Under Certificate of Posting (UCP), demanding the

cheque amount. However, the accused sent an untenable reply

without meeting the demand made in the notice, which

constrained the complainant to institute a criminal case against

him for the offence punishable under Section 138 of the N.I. Act.

3. The accused appeared in the Trial Court and contested

the matter through his counsel.

4. To prove his case, the complainant got himself

examined as PW-1 and got marked documents from Exs.P-1 to

P-6. The accused got himself examined as DW-1 and got

marked documents from Ex.D-1 to D-11.

The Trial Court after recording the evidence led before it

and hearing both side, by its impugned judgment dated

30-07-2008 convicted the accused for the offence punishable

under Section 138 of the N.I. Act and sentenced him to pay a

fine of `2,05,000/-, in default, to undergo simple imprisonment

for six months. Challenging the said judgment of conviction Crl.R.P.No.385/2012

passed by the Trial Court, the accused preferred an appeal in

Criminal Appeal No.25080/2008 before the learned Sessions

Judge's Court, which, after hearing both side, by its impugned

judgment dated 18-01-2010, dismissed the appeal filed by the

accused, while confirming the impugned judgment of conviction

and order on sentence passed by the Trial Court. Being

aggrieved by the judgments of conviction and order on sentence,

the accused has preferred this revision petition.

5. The respondent herein is being represented by his

counsel.

6. The Trial Court and Sessions Judge's Court's records

were called for and the same are placed before this Court.

7. Heard the arguments from both side. Perused the

materials placed before this Court including the Trial Court and

Sessions Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

Crl.R.P.No.385/2012

9. After hearing the learned counsels for the parties, the

only point that arise for my consideration in this revision petition

is:

Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court?

10. Learned counsel for the revision petitioner/accused in

his argument submitted that the details of the loan as to the

date of loan has not been given by the complainant in his

complaint and there is nothing to show that the complainant had

the financial capacity to lend the money to the accused. He

further submitted that the defence of the accused that he had

availed loan of a sum of `30,000/- from the brother of the

complainant and on that occasion, the said brother

Sri. R. Gururaj had collected four un-dated signed blank

cheques from the accused, has not been considered properly by

both the Trial Court as well as the learned Sessions Judge's

Court.

11. Per contra, learned counsel for the respondent in his

argument submitted that, the acquaintance between the parties

is an admitted fact and the drawer of the cheque at Ex.P-1 is

also admittedly, the accused. That being the case, when the Crl.R.P.No.385/2012

cheque has been issued by the accused to the complainant, a

presumption has formed in favour of the complainant, which

presumption the accused has failed to rebut. He further

submitted that the alleged defence of the accused are all stories

and there are contradictions in the said defence also, as such,

both the Trial Court and also the Sessions Judge's Court have

rightly held the accused guilty of the alleged offence punishable

under Section 138 of the N.I. Act.

12. It is not in dispute that the accused and the

complainant were known to each other. This fact has been

stated by none else than the accused himself in his reply to the

notice of the complainant which is at Ex.P-6. Further, it is also

not in dispute that, the cheque at Ex.P-1 is issued from the

account of the accused and it bears the signature of the accused,

as such, the drawer of the instrument is the accused. It is also

not in dispute that the said cheque, when presented for its

realisation by the complainant, came to be returned un-paid with

the banker's endorsement about insufficiency of funds in the

account of the drawer, as could be seen in the banker's

endorsement at Ex.P-2. It is also not in dispute that, it is

thereafter, demanding the cheque amount from the accused, the Crl.R.P.No.385/2012

complainant sent him a legal notice as per Ex.P-3, which is also

sent Under Certificate of Posting (UCP) as per Ex.P-4. The

accused has sent a reply to the said notice as per Ex.P-6.

However, the contention of the accused is that, no loan, much

less a sum of `2,00,000/- was, at any time given to him by the

complainant and the said cheque was not issued towards the

alleged repayment of the loan by him. In order to support his

contention, the accused got himself examined as DW-1 and in his

support produced documents from Exs.D-1 to D-11, which

includes office copy of his letter to one Sri.R. Gururaj, said to be

the brother of the complainant and dated 03-08-2005 Under

Certificate of Posting (UCP) to show that, the said letter was sent

to the said Gururaj and unclaimed letter sent to the said Gururaj

by the accused along with its envelope, the copies of the

complaints said to have been lodged by the accused against the

said Gururaj before different Police authorities. It is through

these documents, the accused attempted to rebut the

presumption formed in favour of the complainant.

13. The complainant, who got himself examined as PW-1,

has reiterated the contentions taken up by him in his complaint

and stated that, the accused had issued the cheque in question Crl.R.P.No.385/2012

towards the repayment of loan of `2,00,000/- borrowed by him.

No doubt in his evidence, he has not specifically stated the exact

date as to when the said loan was given, but he has given the

details as to under what circumstances, the said loan was given.

However, he has specifically stated that the said loan transaction

had taken place in the month of May 2005. It is at that time

only, the accused issued him a typed post-dated cheque putting

the date of the cheque as 05-08-2005. Therefore, even though

the complainant has not stated about the specific date of the

loan transaction, but he has made it clear that the alleged loan

transaction was made in May 2005. Even in his cross-

examination also, nothing could be elicited which is favourable to

the accused. On the other hand, he has given some more details

about the alleged loan transaction. For a specific question put to

him that, he has not collected any other document to

substantiate the alleged loan transaction, the witness has stated

that he has collected the cheque from the accused and in view of

the friendship he did not find it necessary to obtain any other

document in addition to the cheque. By stating so, he has

shown the reason as to why he did not insist for any other

document evidencing the alleged loan transaction.

Crl.R.P.No.385/2012

14. The accused has taken a contention in the form of

defence that, the cheque was given to one Sri.Gururaj, who is

said to be the brother of the complainant, when he is said to

have availed the loan from him. In that regard, he mainly relied

upon his alleged letters dated 03-08-2005 and 07-08-2005

shown to have been addressed to the said R. Gururaj, which are

marked at Exs.D-1 and Ex.D-3. He also relied upon his alleged

Police complaints before different Police authorities which are

marked at Exs.D-8, D-9 and D-11. The summary of all these

alleged letters and complaints of the accused is that, he had

availed a loan from R. Gururaj and had cleared the said loan.

However, the said R. Gururaj had not returned those cheques to

him.

15. Interestingly, the first of such defence is reflected in

the alleged letter of the accused at Ex.D-1 which is dated

03-08-2005 and his subsequent alleged letter dated 07-08-2005

which is at Ex.D-3. In neither of these two letters, he has stated

as to how much of the loan he had availed from said Gururaj, the

brother of the complainant, on what date and under what

circumstances. He has only mentioned in those alleged

letters/correspondences that, he has cleared the entire loan with Crl.R.P.No.385/2012

interest on 30-07-2005. Therefore, nothing is forthcoming from

the accused to believe his version that he had availed a loan of a

particular sum from one Sri. R. Gururaj said to be the brother of

the complainant. Even in his complaint to the different Police

authorities also at Exs.D-8, D-9 and D-11, the accused has

nowhere stated as to on which particular date and what was the

particular amount he had availed as loan from the said

Sri. Gururaj and what made him to issue four blank signed

cheques to the said R. Gururaj at that particular point of time.

Incidentally, in his letters at Exs.D-1 and D-3, he has not

specifically stated that the alleged four signed blank cheques

were given to the said Gururaj at the time of availing the alleged

loan from him. He has stated that he has cleared his entire loan

along with interest on 30-07-2005 and thereafter in the

subsequent paragraphs he has stated that, however, he

(Gururaj) has taken four blank cheques from him. Therefore, in

the said allegation also, he has not specifically stated as to when

the loan was availed and when the alleged four blank signed

cheques were given to him. On the other hand, a reading of the

said letters would go to show that after clearing the loan, the

said Gururaj is alleged to have collected four cheques from the Crl.R.P.No.385/2012

accused. However, either way, the said letter alleging wrongful

withholding of those four cheques by Gururaj nowhere mentions

about the details of the loan and details of the clearing of the

loan.

16. Had really the accused taken a loan from Gururaj

and issued four blank signed cheques to him, he should have

definitely had some document to show that under what

circumstances, he had availed the loan or that how he has repaid

the said loan. However, nothing of those sort have been placed

before the Court by him. Even otherwise, had he really taken

loan from Gururaj, then, at the time of repayment of the loan, he

should have necessarily demanded and collected all the alleged

four blank signed cheques from him. It is not expected of an

ordinary prudent person to repay the entire loan amount leaving

the duly signed blank four cheques with the lender for no valid

reasons. Therefore, the alleged letters at Exs.D-1 and D-3 do

not inspire any confidence to believe in it. Consequently, the

alleged Police complaint which is mainly based upon Exs.D-1 and

D-3 also does not inspire any confidence to believe in it.

[[[[[[[[ [[

17. On the other hand, when admittedly the cheque at

Ex.P-1 pertains to the accused and it bears his signature, and it Crl.R.P.No.385/2012

has been returned un-paid with the reason of insufficiency of

funds and also when the complainant who is the payee of the

said instrument has given a legal notice demanding the said

amount only to get an untenable reply, the presumption

regarding the existence of a legally enforceable debt forms in

favour of the complainant under Section 139 of the N.I. Act.

Though the said presumption was rebuttable, the attempt made

by the accused to rebut the said presumption since has proved to

be not successful, the presumption that had formed in favour of

the complainant crystalises further.

Thus, considering these aspects, both the Trial Court as

well as the Sessions Judge's Court have held that the

complainant could able to prove the alleged guilt against the

accused.

18. The other point of argument of the learned counsel for

the accused/petitioner was that, the complainant had no financial

capacity to lend such a huge amount to the accused. Except

taking that contention, nothing was placed either in his argument

or through documentary evidence before the Court to show that

the complainant had no financial capacity to lend the money. No

doubt, the complainant has admitted in his cross-examination Crl.R.P.No.385/2012

that he has been working as an Attender in the State Bank of

Mysore and has given his salary which shows that his salary was

not huge amount, but the very same complainant in the very

same cross-examination has also stated that he had maintained

a Fixed Deposit account for a sum of `75,000/-. Further, a

suggestion was made to the said witness from the accused's side

that he (complainant) was never in possession of cash of more

than a sum of `50,000/- with him. The said suggestion was not

admitted as true by the complainant. However, by making the

said suggestion, the accused has shown that the complainant

used to be in possession of huge amount of cash. Thus, when no

specific defence regarding the alleged financial in-capacity of the

complainant was taken at the earliest point of time by the

accused in the Trial Court or when the accused has not elicited

from the complainant that the complainant had no financial

capacity to lend money, a mere submission in this proceeding by

the learned counsel for the petitioner/accused that the

complainant had no financial capacity would not weaken the case

of the complainant. As such, the said argument of the learned

counsel of the petitioner is also not acceptable.

Crl.R.P.No.385/2012

19. Consequently, since both the Trial Court as well as the

learned Session's Judge's Court, have after properly appreciating

the evidence placed before them, rightly held the accused guilty

for the alleged offence and have ordered sentence proportionate

to the gravity of the proven guilt, I do not find any perversity or

illegality in it warranting interference at the hands of this Court.

Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition stands dismissed as devoid

of merits.

Registry to transmit a copy of this order to both the Trial

Court and also the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

BMV*