Sri B M Nagaraju vs Sri K L Subramanya @ Subbanna
2021 Latest Caselaw 380 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF JANUARY 2021

                                  BEFORE

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

    CRIMINAL REVISION PETITION No.1285 OF 2011

BETWEEN:

Sri. B.M. Nagaraju,
S/o. Late Sri. Maruda Hanumaiah,
Aged about 51 years,
Agriculturist, R/o. Koralahalli,
Kachinakatte Village,
Shimoga Taluk - 577 201.
                                               .. Petitioner

(By Sri. M. Rudraiah, Advocate)

AND:

Sri.K.L Subramanya @ Subbanna,
S/o. Lakshminarayana Rao,
Aged 34 years,
R/o. Kolluraiah Street,
S.P.M. Road,
Shimoga - 577 201.
                                            .. Respondent
(By Sri. Rakshith Jois Y.P. for
Sri. Showri H.R., Advocate)

                                   ****
      This Criminal Revision Petition is filed under Sections 397 of
Cr.P.C. praying to call for the records and set aside the judgment
                                             Crl.R.P.No.1285/2011
                                 2


of conviction dated 04-01-2010 passed by the Court of learned
J.M.F.C. II Shimoga in C.C.No.3644/2009 and confirmed by the
judgment and order passed by the learned Sessions Judge, I Fast
Track Court at Shimoga dated 14-10-2011 in Criminal Appeal
No.21/2011 and further be pleased to dismiss the complaint filed by
the respondent in the interest of justice and equity.

      This Criminal Revision Petition coming on for 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 J.M.F.C-II, Shimoga (hereinafter for brevity referred

to as the "Trial Court") in C.C.No.3644/2009 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 04-01-2010.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the learned Sessions Judge, I Fast Track

Court at Shimoga, (hereinafter for brevity referred to as the

"Sessions Judge's Court") in Criminal Appeal No.21/2011.

Crl.R.P.No.1285/2011

The appeal was contested by the respondent who was the

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

order dated 14-10-2011 dismissed the appeal, confirming the

judgment of conviction and order on sentence passed by the Trial

Court dated 04-01-2010 in C.C.No.3644/2009.

Aggrieved by the said order, the accused has preferred this

revision petition.

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

Court is that, the complainant is doing whole sale business in

poultry and that the accused, as a customer had purchased broiler

chicken from him of 1,500 kgs. at the rate of `35/- per kilogram

and after discount of `2,500/-, had paid as consideration a sum of

`50,000/- in August 1999 through a cheque bearing No.990818

dated 30-08-1999 drawn on Karnataka Bank Limited, Shimoga. The

said cheque when presented for its realisation, came to be dis-

honoured with the Banker's endorsement "funds insufficient". The

complainant issued a legal notice demanding the cheque amount

from the accused. However, the accused did not meet the demand.

Thus, the complaint for the alleged offence punishable under Crl.R.P.No.1285/2011

Section 138 of the N.I. Act came to be filed by the complainant

against the accused in the Trial Court.

3. The accused pleaded not guilty and the matter was tried,

wherein both the parties have led their evidence and got marked

documents from their respective side.

4. After hearing both side, the Trial Court by its judgment of

conviction dated 04-01-2010 convicted the accused for the offence

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

pay a fine of `75,000/-, in default, to undergo Simple Imprisonment

for a period of three months. Aggrieved by the same, the accused

preferred a criminal appeal in Criminal Appeal No.21/2011 in the

Sessions Judge's Court, which also, after contest, came to be

dismissed, confirming the judgment of conviction passed by the

Trial Court. It is against the said order, the accused has preferred

the present revision petition.

5. The respondent 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.

Crl.R.P.No.1285/2011

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.

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 submits that the accused does not dispute that the

cheque at Ex.P-2 pertains to him and it bears his signature. The

accused also does not dispute that the said cheque, when presented

for its realisation by the complainant came to be dis-honoured for

the reason of insufficiency of funds as per Exs.P-3 and P-4. He also

does not dispute that thereafter, the complainant got issued a legal

notice as per Ex.P-5. However, it is the specific defence of the

accused that the cheque in question along with one more cheque

and other documents were lost by the accused in a public transport Crl.R.P.No.1285/2011

Bus, in which regard, he had also lodged a Police complaint as back

as on 03-07-1998. The complainant who came in possession of one

of the said cheques has lodged the present complaint, as such,

there exists no legally enforceable debt in the matter. He also

submits that with respect to another cheque, in a similar

circumstance, the complaint lodged by one Sri.K.T. Varghese

against the present accused for the offence under Section 138 of

the N.I. Act came to be dismissed. The certified copy of the said

judgment is also produced at Ex.D-2. With this, learned counsel

submits that, when the complainant was a stranger to the accused

and at no point of time, the alleged business transaction has taken

place between them, the question of issuance of cheque, much less

Ex.P-2, from the accused to the complainant does not arise. As

such, the presumption in favour of the complainant has been

successfully rebutted, on the other hand, the complainant has failed

to prove his case. Thus, the judgments under revision deserve to

be set aside and the accused deserves to be acquitted.

11. Learned counsel for the respondent/complainant in his

argument submitted that all the defences raised by the accused are Crl.R.P.No.1285/2011

purely after-thought. It is after intentionally getting the cheque at

Ex.P-2 dis-honoured and to avoid his liability under the cheque and

also the criminal liability, the accused has come up with the story.

He further submits that the presumption in favour of the

complainant has not been shaken by the accused, much less

rebutting the same. He submits that his defence that he had lost

the cheque in question has not been proved except Ex.D-2

mentioning that the present cheque in question was also one of the

cheques which is alleged to have been lost by the accused. He

further submits that admittedly, the present complainant was not a

party in the said proceedings in Ex.D-2. Learned counsel also

submits that for the reasons best known to the accused, neither he

has produced the alleged complaint copy nor the reply said to have

been sent by him to the notice of the complainant. He further

submits that as a drawer of the cheque, immediately after alleged

loosing of the cheque in transit, the accused was expected

to approach his Banker and to give a stop payment direction,

which also is admittedly not given by him.

As such, both the Trial Court as well the Sessions Judge's Court Crl.R.P.No.1285/2011

have rightly rejected the contention of the accused and considering

the evidence placed before them by the complainant, have rightly

convicted the accused for the alleged offences.

12. The admitted facts are that, the cheque at Ex.P-2 is

belonging to the accused and that he is the drawer of the said

instrument under his signature. It is also an admitted fact that as

evidenced in the Banker's endorsement at Exs.P-3 and P-4, the said

cheque when presented for realisation by the complainant came to

be dis-honoured with the Banker's endorsement of insufficiency of

funds. It is also an admitted fact that thereafter the complainant

got issued a legal notice to the accused as per Ex.P-5 demanding

from him the cheque amount. Admittedly, the accused has not paid

the said cheque amount. It is in this background, the contentions of

the parties are required to be looked into.

13. The complainant as PW-1 has reiterated the contentions

taken up by him in his complaint and contended that towards the

sale consideration of 1,500 Kgs. of broiler chicken, the accused had

issued the cheque in question for a sum of `50,000/-, which cheque

was dated 30-08-1999. The complainant, as PW-1, has also stated Crl.R.P.No.1285/2011

that accused was acquainted to him since two years prior to the

alleged transaction and issuance of cheque. He has specifically

denied in his cross-examination that the accused had lost the

Tractor documents including the present cheque in question and

that he had lodged a complaint in that regard.

14. Similarly DW-1, in his Examination-in-chief has

forwarded his defence that he has not purchased chicken from the

complainant at any point of time and that he has not issued the

cheque in question to him towards the sale consideration. He has

stated that he has lost the said cheque in question along with one

more cheque in the Bus and that he had lodged a complaint with

the Police in that regard. He also stated that in a similar

circumstance, with respect to another cheque lost by him on the

same occasion, the finder of the said cheque had lodged a criminal

case against him in C.C.No.395/2007 in the Court of the learned

Civil Judge (Jr.Dn.) & JMFC, N.R. Pura and the same came to be

dismissed.

15. PW-1 in his evidence has specifically stated that the

accused has purchased certain quantity of broiler chicken from him Crl.R.P.No.1285/2011

and it is towards the said business transaction the said cheque was

given. In his cross-examination, it is not specifically denied that the

complainant was carrying on the business in broiler chicken and in

poultry products. Though the accused stated that he had no

occasion to purchase any such goods from the complainant, but

PW-1 has not admitted the said suggestion as true. However,

since the fact remains that the cheque at Ex.P-2 admittedly

belonging to the accused wherein he is the drawer and the said

cheque is dis-honoured when presented for its realisation by the

complainant and the complainant has admittedly demanded the

cheque amount by issuing a statutory notice within the prescribed

time, the presumption under Section 139 of the N.I. Act operates in

favour of the complainant. However, the said presumption is

rebuttable. Thus whether the accused has successfully rebutted the

said presumption would be the question.

16. In the process of rebuttal of the presumption, the very

first contention taken by the learned counsel for the petitioner was

that the complainant was a stranger to the accused. Interestingly,

no where such a suggestion was made to PW-1 in his cross-

Crl.R.P.No.1285/2011

examination from the accused' side. On the other hand, the

complainant in his Examination-in-chief has clearly and specifically

stated that the accused was acquainted to him since two years prior

to the dis-honor of the cheque in question. The said statement

made by PW-1 on oath has not been rebutted/denied in his cross-

examination. Therefore, the argument of the learned counsel for

the petitioner that the accused was a stranger to the complainant

does not hold good.

17. Secondly, in order to rebut the presumption that was

formed in favour of the complainant regarding existence of a

legally enforceable debt, the defence of the accused that he had

lost the cheque in question along with one more cheque and other

documents was tried to be established through Exs.D-1 and D-2 in

addition to his evidence as DW-1. Even according to DW-1, neither

of those two Exhibits in 'D' series is the complaint said to have been

lodged with the Police. Ex.D-1 is only a certified copy of the

endorsement said to have been issued by the Police on 03-07-1998

wherein it is shown that the complainant has given complaint

stating that while travelling from Shivamogga in 'Someshwara' Bus, Crl.R.P.No.1285/2011

the complainant claims to have lost the documents pertaining to the

Tractor and signed cheques. However, admittedly, the Police have

not taken any further action in that regard. The said aspect is very

clear in the cross-examination of DW-1. In his cross-examination,

DW-1 has clearly stated that the Police did not file charge sheet in

pursuance of his complaint and he also did not take any further

action in that regard including filing of any private complaint under

Section 200 of the Code of Criminal Procedure, 1973. Therefore,

even if it is taken that the accused has lodged a complaint with

respect to loss of certain cheques, but admittedly, no further action

in that regard was taken by the Police.

18. Thirdly, neither from Exhibit D-1 nor from Exhibit D-2, it

can be made out that the complaint was with respect to those two

cheques including the one on hand. It is because neither in Ex.D-1,

the cheque number is mentioned nor in Ex.D-2, there is any finding

by the Court that the present cheque in question bearing

No.990818 was also proved to be or shown to be lost by the

accused in the alleged transportation.

Crl.R.P.No.1285/2011

On the contrary, in the cross-examination of DW-1, apart

from making a suggestion that the contention of the accused that

he had lost the cheque in question in a Bus, a question was also

asked to the witness to tell the name of the Bus in which he was

traveling, for which the accused has stated that he does not

remember the same. Incidentally, at the same time, the very same

accused, as DW-1 had produced and got marked Ex.D-1 which is an

endorsement to his alleged complaint, wherein he has mentioned

that the name of the Bus was 'Someshwara'. Had he really lost the

said cheque while travelling in the said Bus, he should have named

the said Bus in his cross-examination instead of telling that he does

not remember its name.

19. Fourthly, even according to the revision petitioner, the

judgment at Ex.D-2 is between the present accused and a different

complainant and the present complainant was not a party to the

said criminal case. Furthermore, no where in the said judgment at

Ex.D-2, the Court has given any finding that the cheque bearing

No.990818 which is the cheque in the present case was proved to

have been lost in transit. Therefore neither Ex.D-1 nor Ex.D-2 Crl.R.P.No.1285/2011

guards the accused in taking his defence in his attempt to rebut the

presumption which has formed in favour of the complainant.

20. In addition to the above, when the accused has

contended that he has sent a reply to the notice at Ex.P-5, nothing

had prevented him from producing a copy of the notice and

marking it as an Exhibit and to show that at the earliest point of

time, he had taken a particular defence. For the reasons best

known to him, he has not made any attempt in that regard.

Consequently, the alleged reply notice has not been exhibited in the

criminal case.

If according to the accused, had he lodged a complaint with

the Police immediately after loosing the cheques including the one

in question, nothing had prevented him from producing a certified

copy of the said complaint in the present case. For the reasons

best known to him, he has not produced a copy of the said

complaint said to have been lodged by him. When he has produced

a certified copy of the endorsement and got it marked at Ex.D-1,

nothing had prevented him from producing a similar copy of the

complaint also which he claims to have produced in another Crl.R.P.No.1285/2011

criminal case, i.e. in C.C.No.395/2007, a certified copy of which

judgment is marked at Ex.D-2. He could have obtained a certified

copy of the complaint also which according to him was marked

therein at Ex.D-1 and confronted the same to PW-1 in the process

of rebutting the presumption in the present case.

21. The accused admittedly has not approached his Banker

and informed it about he loosing some signed blank cheques and

given them any instructions to stop their payment. Though learned

counsel for the revision petitioner submits that the accused was a

rustic villager and that he was not well informed in that regard, but

if he could able to carry with him the Tractor documents said to be

belonging to him and carry the cheques with him and having a Bank

Account and also could approach the Police and lodge a complaint,

it cannot be held that he was ignorant of approaching the Banker

and telling them about he loosing the signed blank cheques. Had

he really lost the cheques, then, he would have approached his

Banker and asked their suggestion about the precaution to be taken

by him in order to stop the payment of the said cheques. At least, Crl.R.P.No.1285/2011

an attempt in that regard could have been made by him. But there

is nothing on record to show that he has made any such attempt.

22. At this juncture, it also cannot be ignored of the fact

that DW-1, in his cross-examination has stated that, in his

complaint to the Police, he has only stated that he has lost a bag.

He has also stated in his cross-examination that, it is only after two

to three persons filing a case against him, he went to the Police

Station and informed them. That means, as stated by none else

than the accused himself in his cross-examination as DW-1, he did

not even approach the Police immediately after the alleged loosing

of his cheque or cheques etc., but he waited for some more time

and only after he coming to know that two to three more similar

cases were filed against him only then he approached the Police.

As such, without further discussion on this aspect, it can be held

that the finding of the Court below that, the defence of the accused

that he had lost the cheque in question during transit is not

convincing, warrants no interference in it.

23. Consequently, when the presumption under Section 139

of the N.I. Act has formed in favour of the complainant and that the Crl.R.P.No.1285/2011

accused has totally failed to rebut the said presumption, both the

Trial Court and the first appellate Court have rightly held that the

complainant has proved the alleged guilt against the accused, in the

finding of which, I find no perversity, illegality or any error

warranting interference by this Court.

24. In so far as the quantum of sentence is also concerned,

since the sentence awarded is proportionate to the gravity of the

proven guilt, the same does not warrant any interference at the

hands of this Court.

Therefore, I proceed to pass the following:-

ORDER

The Criminal Revision Petition is dismissed.

Registry to transmit a copy of this order along with Trial Court

and Session Judge's Court's records to the respective Courts

without delay.

Sd/-

JUDGE

BMV*