Sri. K. Nagaraj vs Sri. P.N. Lingesh Babu
2021 Latest Caselaw 1458 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 28TH DAY OF JANUARY, 2021

                          BEFORE

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

  CRIMINAL REVISION PETITION No.257 OF 2014

BETWEEN:

Sri K. Nagaraj
S/o Sri K. Anantha Rao
aged about 54 years
R/a No.1945/23 "Anantha Padma"
Sridevi Srividya Nilaya
Vinayakanagar
P.B. Road, Davanagere - 577 006.
                                               ..PETITIONER

(By Sri Ashok K.L., Advocate)


AND:

Sri P.N. Lingesh Babu
S/o Sri P.J. Ningoji Rao
aged about 45 years
R/at No.3227, 11th Main Road,
MCC "B" Block, Davanagere - 577 004.
                                             ..RESPONDENT

(By Sri V. Lakshmikanth Rao, Advocate)

       This Criminal Revision Petition is filed under Section

397 read with Section 401 of Cr.P.C. praying to set aside
                                                   Crl.R.P.No.257/2014
                                 2


the Judgment dated 21.11.2012 passed by III Addl. Senior

Civil Judge & JMFC, Davanagere in C.C. No.2405/2009 (Old

CC No.257/2008) and Judgment dated 01.03.2014 passed

by   Prl.    Dist.   and   Sessions    Judge,    Davanagere       in

Crl.A.127/2012 as illegal, arbitrary and unsustainable, in

the interest of justice.


      This    Criminal     Revision   Petition   coming    on    for

admission through Physical Hearing/Video Conferencing

this day, the Court made the following:



                             ORDER

The petitioner who was the accused in the Court of

learned III Addl. Senior Civil Judge & JMFC at Davanagere

(hereinafter referred to as 'the Trial Court') in C.C.

No.2405/2009 (old CC No.257/2008), was found guilty for

the offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 (for brevity, hereinafter referred to

as 'the N.I. Act') and accordingly was convicted by

Judgment dated 21.11.2012.

Crl.R.P.No.257/2014

2. The summary of the case of the complainant in

the Trial Court is that the accused who was acquainted

with him had borrowed a loan of `80,000/- from him in the

first week of January, 2006, agreeing to repay the same

with interest at the rate of 2% per month. Since the

accused did not repay the loan amount, at the specific

demand made by the complainant for the repayment of the

loan amount, the accused issued a cheque bearing

No.059240 dated 18.02.2007 drawn on Corporation Bank,

Mandipet Branch, Davanagere, for a sum of `80,000/- in

favour of the complainant. When the said cheque was

presented by the complainant for its realisation, the same

came to be dishonoured with the banker's shara

'insufficient funds'. Thereafter the complainant got issued

a legal notice to the accused demanding the cheque

amount. However, even after receiving the notice, the

accused neither replied to the notice nor paid the cheque

amount which constrained the complainant to file a Crl.R.P.No.257/2014

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. After recording evidence and

hearing both side arguments, the Trial Court by its

impugned Judgment convicted the accused for the offence

punishable under Section 138 of the Act and imposed a

fine of `1,05,000/- upon him. In default of payment of fine

amount, the accused was also ordered to undergo simple

imprisonment for four months. The Crl.A. No. 127/2012

filed by the accused challenging the Judgment of

conviction passed by the Trial Court also came to be

dismissed by the Judgment dated 01.03.2014, of the Prl.

District and Sessions Judge, Davanagere(for brevity

'Sessions Judge's Court'). As such, the accused has filed

the present revision petition.

Crl.R.P.No.257/2014

4. The Sessions Judge's Court's and the Trial

Court records were called for and the same are placed

before the Court. Perused the materials placed on record.

Though the matter is listed for admission, with the

consent of learned counsels from both side, the matter is

heard for final disposal.

5. The only point that arises for my consideration

is, "whether the Judgment of conviction and the default

sentence passed by the Trial Court and confirmed by the

Sessions Judge's Court is incorrect and suffers with any

illegality or perversity, warranting interference at the

hands of this Court?"

6. Learned counsel for the petitioner who is

present physically in the Court in his brief arguments

submitted that the accused had availed a handloan of a

sum of `17,000/- only from the complainant in which a

sum of `5,000/- has already been paid leaving a balance of

`12,000/-. However, a blank signed cheque was given as Crl.R.P.No.257/2014

a security to the complainant which she has misused by

presenting it for a sum of `80,000/-. He further submitted

that the complainant is a cheat against whom several

criminal cases are pending. To substantiate his contention,

he relied upon Exs.D1 to D5 which are newspaper reports

and Ex.D6 which is a certified copy of the charge-sheet in

which charge-sheet it is shown that the complainant has

been chargesheeted for the offence punishable under

Section 4 of Karnataka Prohibition of Charging Exorbitant

Interest Act, 2004. Learned counsel submitted that both

the Trial Court and the Sessions Judge's Court have failed

to consider this evidence led by the accused.

7. Per contra, learned counsel for the

respondent/complainant in his arguments submitted that

the accused except taking a self-serving defence that the

loan was a sum of `5,000/- only, has not produced any

material before the Court to substantiate his contention.

As such, both the Trial Court as well as the Sessions

Judge's Court have rightly held him guilty for the alleged Crl.R.P.No.257/2014

offence in which finding there are no reasons for

interference.

8. It is not in dispute that the complainant and

the accused were known to each other. Apart from the

complainant as P.W.1 stating the same in his evidence

even the accused who got himself examined as D.W.1 has

himself stated that he knew the complainant and was

availing as handloan some small amounts like `100/-,

`200/- from the complainant now and then. Therefore, it is

an admitted fact that the accused and the complainant

were known to each other.

9. It is also not in dispute that the cheque at

Ex.P2 pertains to the bank account of the accused and the

drawer of the said instrument is none else than the

present accused / petitioner. It is also not in dispute that

the said cheque when presented for realisation, it came to

be dishonoured for the reason of insufficiency of funds as

could be seen in the banker's endorsement at Exs.P3 and Crl.R.P.No.257/2014

P4. It is not in dispute that after return of the cheque at

Ex.P2, the complainant got issued a legal notice to the

accused a copy of which is at Ex.P5. According to the

complainant, the copy of the said legal notice was also

sent to the accused under 'certificate of posting' as

evidenced in Ex.P7. Ex.P8 is the postal acknowledgement

to show the service of legal notice upon the accused.

However, the accused himself in his cross examination as

D.W.1 has admitted that he has received the legal notice

issued by the complainant. Admittedly the accused has not

responded to the said notice either by meeting the demand

made in the notice or by sending any reply to the said

notice. Therefore, when the proven facts remain that

parties were known to each other and accused is the

drawer of the dishonoured cheque at Ex.P2 and after its

dishonour a legal notice was issued and cheque amount

was demanded, the presumption under Section 139 of the

N.I. Act forms in favour of the complainant. However, the

said presumption is rebuttable.

Crl.R.P.No.257/2014

10. In order to rebut the presumption formed in

favour of the complainant, the accused has taken his

specific defence in the cross examination of P.W.1 in the

form of suggestion made to P.W.1 suggesting that the

accused had borrowed a sum of only `5,000/- from the

complainant but not `80,000/- as alleged by the

complainant. Though the said amount of `5,000/- was

repaid, the complainant refused to return the cheque

demanding in total a sum of `15,000/-. As such, the said

cheque has been misused by the complainant in the

present form. The said suggestion was not admitted as

true by P.W.1.

11. The accused himself got examined as D.W.1

where he had taken a defence that the entire complaint is

bogus and only with an intention to harass him in earlier

transaction, the complainant has filed a false case, though

the accused had cleared the entire loan amount. The

same was denied in the cross examination of D.W.1 from

the complainant's side. Thus the accused has taken two Crl.R.P.No.257/2014

different defence in his support. Firstly, as could be seen in

the argument of learned counsel for the petitioner, the

alleged loan said to have been availed by him was only a

sum of `17,000/-, however, towards which he has repaid a

sum of `5,000/- and the cheque in question was issued as

a security. The said contention does not find a place either

in the cross examination of P.W.1 or in the evidence of

D.W.1.

12. As already observed above, the defence taken

by the accused are different. In the cross examination of

P.W.1 as well in his evidence as D.W.1 the accused has

given a go by to the contention raised by the learned

counsel stating that the loan amount was only a sum of

`17,000/-. But the accused has suggested to P.W.1 that

the loan was of total sum of `5,000/- only. Further more,

in his evidence as D.W.1, the accused has nowhere

mentioned as to what exactly the previous loan transaction

was, whether he was able to repay the alleged loan

amount availed by him. Without going into these details, Crl.R.P.No.257/2014

he has only stated that cheque was given in earlier loan

transaction. Therefore, apart from non replying to the legal

notice at Ex.P5 and his self serving details in the form of

suggestion to P.W.1, nowhere he has stated about the

earlier loan transaction and when it was taken and when it

was cleared. Thus the oral evidence on the alleged

previous loan transaction is totally vague and incomplete.

Not even a single piece of paper in the form of

documentary evidence has been placed by the accused in

support of his contentions.

Therefore, the defence taken up by the accused

contending that the cheque in question was issued to the

complainant in a previous loan transaction and the same

has been misused by the complainant is found only to be a

mere suggestion without proof, without any corroboration.

Thus the same cannot rebut the presumption that has

been already formed in favour of the complainant.

13. The second defence as well as a contention

taken up by the accused is that the complainant by Crl.R.P.No.257/2014

conduct is a cheat and he was apprehended by the police

in a criminal case and a charge-sheet also has been filed

against him by the police authority. In that regard the

accused as D.W.1 got produced five newspaper clippings

from Exs.D1 to D5 which are all local newspapers in that

area and as a news item mentions that the present

complainant was apprehended by the police on the ground

of charging exorbitant interest as "meter interest".

Admittedly they are all a mere newspaper clippings, as

such, such an alleged news item cannot be taken as an

evidence to believe the defence of the accused that he did

not avail a loan of `80,000/- from the complainant.

14. Similarly Ex.D6 which is the certified copy of

the charge-sheet in criminal case No.49/2007 of

Davanagere Extension Police Station, also goes to show

that a case has been filed against the complainant herein

for the offence punishable under Section 420 and 506 of

IPC and under Section 4 of the Karnataka Prohibition of

Charging Exorbitant Interest Act, 2004. Even according to Crl.R.P.No.257/2014

the petitioner / accused, the said criminal case is still

pending and has not reached its finality. Added to that, it

is an admitted fact that nowhere in the charge-sheet the

present petitioner is shown as a charge-sheet witness or

as one of the victims at the hands of the complainant.

Therefore, merely because the complainant is said to have

been facing a criminal case for the offence under Section

420 of IPC by that itself it cannot be inferred that no loan

transaction as contended by the complainant in the instant

case has occurred. Therefore, the defence of the accused

could not able to shaken the oral and documentary

evidence placed by the complainant in the trial. It is

appreciating these facts and analysing the evidence placed

before it, both oral and documentary in their proper

perspective, both the Trial Court as well as the Sessions

Judge's Court since have rightly held the accused guilty for

the alleged offence, I do not find any illegality, irregularity

or perversity in it warranting any interference at the hands

of this Court.

Crl.R.P.No.257/2014

Similarly the quantum of sentence ordered also

being proportionate to the gravity of the proven guilt, the

same does not warrant any interference at the hands of

this Court. Consequently I proceed to pass the following:

ORDER

The petition stands dismissed as devoid of merit.

Registry to transmit copies of this Order along with

Trial Court and Sessions Judge's Court's records to the

concerned Courts, without delay.

Sd/-

JUDGE

sac*