Amardeep vs Suresh Salian
2021 Latest Caselaw 1329 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF JANUARY, 2021

                         BEFORE

           THE HON'BLE MRS.JUSTICE M.G.UMA


    CRIMINAL REVISION PETITION NO.370 OF 2015

BETWEEN:

AMARDEEP
SON OF A HARISHCHANDRA ACHAR
AGED ABOUT 35 YEARS
RESIDING AT JEEVAN JYOTHI NILAYA
PINTOS LANE, KARANGALPADY
MANGALORE
DAKSHINA KANNADA-575 004.
                                       ... PETITIONER
(BY SRI:S.RAJASHEKAR, ADVOCATE (PH))

AND:

SURESH SALIAN
SON OF ANAND SALIAN
AGED ABOUT 66 YEARS
RESIDING AT SRI DURGA STUDENT
LANE, ALVERIES ROAD
KADRI, MANGALORE
DAKSHINA KANNADA-575 002.
                                     ...RESPONDENT
(BY SRI:MOHAMMED FARUKE, ADVOCATE (PH))

     THIS CRIMINAL REVISION PETITION FILED UNDER
SECTION 397 READ WITH 401 CR.P.C. BY THE ADVOCATE FOR
THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE JUDGMENT DATED 08.08.2014
PASSED BY THE IV ADDL.DIST.AND S.J., DAKSHINA KANNADA,
MANGALORE IN CRL.A.95/2013 AND ALSO THE JUDGMENT
DATED 27.2.2013 PASSED BY THE J.M.F.C-V COURT,
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MANGALORE IN C.C.NO.1175/2010 AND ACQUIT THE ACCUSED
OF THE CHARGES LEVELLED AGAINST HER UNDER THE FACTS
AND CIRCUMSTANCES OF THE CASE.


     THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT PASSED THE
FOLLOWING:

                             ORDER

The revision petitioner is challenging the correctness

of the judgment of conviction and order of sentence dated

27.02.2013 passed in C.C.No.1175 of 2010 by the learned

JMFC-V Court, Dakshina Kannada, Mangaluru, (for short

'the Trial Court'), convicting him for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881

(for short 'the NI Act') and sentencing to pay a fine of

Rs.5,50,000/-, failing which, to undergo simple

imprisonment for a period of one year, which was

confirmed by the judgment dated 08.08.2014 passed in

Criminal Appeal No.95 of 2013 by the IV Additional District

and Sessions Judge, Dakshina Kannada, Mangaluru, (for

short 'the First Appellate Court').

2. Brief facts of the case are that, the respondent

herein is the complainant before the Trial Court filed the

private complaint against the accused contending that the

accused had borrowed loan of Rs.5,00,000/- and towards

repayment of the said amount, he had issued two cheques

bearing Nos.471701 dated 25.02.2010 and 471702 dated

05.03.2010 respectively for Rs.2,50,000/- each, drawn on

Vijaya Bank, Falnir Branch, Mangaluru. Those cheques

were presented for encashment by the complainant

through his banker and both the cheques returned

dishonored as there was 'insufficient funds' in the account

of the accused. After receiving intimation regarding

dishonor of cheques, the legal notice as per Ex.P5 was

issued informing the accused regarding the dishonor of

cheques and calling upon him to pay the cheques amount.

The accused issued an untenable reply as per Ex.P8

denying his liability to pay the cheque amount and thereby,

he has committed the offence punishable under Section

138 of the NI Act.

3. The Trial Court took cognizance of the offence

and summoned the accused to answer the plea. The

accused appeared before the Court and pleaded not guilty

for the offence punishable under Section 138 of the NI Act.

The complainant examined himself as PW1 and got marked

10 documents in support of his contention. The accused

denied all the incriminating material available on record in

the statement recorded under Section 313 of Cr.P.C. and

got examined himself as DW1. The Trial Court after taking

into consideration all these materials on record, came to

the conclusion that the complainant has proved the guilt of

the accused for the aforesaid offence and proceeded to

convict and sentence him as stated above.

4. The accused preferred Criminal Appeal No.95

of 2013 challenging the impugned judgment of conviction

and order of sentence passed by the Trial Court. The First

Appellate Court dismissed the appeal as devoid of merits

by confirming the impugned judgment of conviction and

order of sentence passed by the Trial Court. Aggrieved by

the same, the accused is before this Court.

5. Heard Sri.S.Rajashekar, learned Counsel for

the revision petitioner and Sri.Mohammed Faruke, learned

Counsel for the respondent who are physically present

before the Court and perused the materials including the

Trial Court records.

6. Learned Counsel for the revision petitioner

submitted that even though the accused admitted issuance

of cheques, lending of Rs.5,00,000/- by the complainant is

not proved. At the initial stage, while issuing Ex.P8 - the

reply notice, the accused has taken a defence in that

regard. The complainant has not proved lending of the

amount and in such circumstances, the presumption under

Section 139 of the NI Act could not have been drawn. He

further submitted that admittedly, the complainant had not

declared the amount of Rs.5,00,000/- in his income tax

returns and the explanation given by the complainant

regarding lending of the loan amount of Rs.5,00,000/- is

not explained properly. On that count also, the complaint

filed by the complainant should fail and it cannot be held

that he has proved the guilt of the accused beyond

reasonable doubt. Hence, he prays for allowing the

revision petition by setting aside the impugned judgment

of conviction and order of sentence passed by the Trial

Court which was confirmed by the First Appellate Court.

7. Per contra, learned Counsel for the respondent

supporting the impugned judgment of conviction and order

of sentence contended that availing of loan from the

complainant is admitted by the accused. Even though he

contended that he has availed only Rs.1,00,000/- as loan,

no materials are placed before the Court in support of the

same. On the other hand, the complainant produced Ex.P9

- the agreement and Ex.P10 - the receipt. The accused

admitted the signature not only found on the cheques -

Exs.P1 and P2, but also on Exs.P9 and P10. Therefore, the

defence taken by the accused that he had borrowed only

Rs.1,00,000/- cannot be accepted. When the accused

admitted borrowing of the amount and issuance of cheques

and when it is proved that the said cheques were

dishonored as there was 'insufficient funds' in the account

of the accused, presumption under Section 139 of the NI

Act arises and it is for the accused to rebut the same. But

the accused has not rebutted the same, even though he

has stepped into the witness box and deposed before the

Trial Court. Hence, the revision petition is devoid of merits

and the same is liable to be dismissed. Accordingly, he

prays for dismissal of the revision petition.

8. The complainant has relied on Exs.P1 and P2 -

the cheques, Ex.P9 - the agreement and Ex.P10 - the

receipt issued by the accused while borrowing the amount

of Rs.5,00,000/-. These documents prima facie do not

appear to be concocted. Except taking the defence that his

signatures were taken on blank cheques, blank bond paper

and the receipt, same is not probablised by the accused.

The accused does not deny that he was in need of money

and borrowed the amount from the complainant. But he

has disputed that he had borrowed only Rs.1,00,000/- and

not Rs.Rs.5,00,000/- as contended by the complainant.

Even though an attempt is made to contend that blank

cheques, bond paper and receipts were issued, the same is

not probablised. No materials are forthcoming to

substantiate the same, except the interested version of the

accused who is examined as DW1 to prove such

contention. During cross examination of PW1, it is elicited

that he was having sufficient amount with him as he had

sold the hotel business in Mumbai just before the

transaction in question and out of the said consideration

amount, he had lent the amount of Rs.5,00,000/-. There is

no further cross examination in this regard to disbelieve

such version of the complainant.

9. Under such circumstances, it cannot be said

that the accused has rebutted the presumption under

Section 139 of the NI Act. The Trial Court as well as the

First Appellate Court have taken into consideration all

these material on record and recorded the finding that the

accused is guilty of the offence as stated above and the

complainant has proved it beyond reasonable doubt. I do

not find any reason to interfere in the judgment passed by

the Trial Court and confirmed by the First Appellate Court.

Hence, I am of the opinion that there is no merit in the

revision petition and the same is liable to be dismissed.

Accordingly, the Criminal Revision Petition is

dismissed.

Sd/-

JUDGE

*bgn/-