K Ramu S/O Kalaiah vs M/S Kumbeshwara Credit Co-Op ...
2021 Latest Caselaw 680 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF JANUARY 2021

                              BEFORE

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

     CRIMINAL REVISION PETITION No.848 OF 2011

BETWEEN:

K. Ramu
S/o. Kalaiah
Aged about 61 years
Residing at No.7,
Samasadana, 8th Cross
4th Main, A.D. Halli
Bangalore - 79.
                                               ..     Petitioner
(By Sri. Vinay G. for Sri. Nagaiah &
Sri.R.D. Pancham, Advocates)

AND:

M/s. Kumbeshwara Credit Co-op. Society (Regd.)
Kalasipalya New Extension,
Bangalore. Rep. by its Secretary
S. Siddappa Prasad.
                                                    .. Respondent
(By Sri. L. Rajanna, Advocate)

                                    ****
      This Criminal Revision Petition is filed under Section 397 read
with Section 401 of Cr.P.C. praying to call for the records and set
aside the judgment dated 13-05-2010 in C.C.No.18951/2007
passed by the XII Additional Chief Metropolitan Magistrate at
                                              Crl.R.P.No.848/2011
                                  2


Bangalore City; and set aside the judgment dated 14-06-2011 in
Crl.A.No.458/2010, passed by the Fast Track No.VIII, Bangalore
City, etc.

      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 XII Additional Chief Metropolitan Magistrate at

Bangalore City (hereinafter for brevity referred to as the "Trial

Court") in C.C.No.18951/2007 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 13-05-2010.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the Fast Track No.VIII, Bangalore City,

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

in Criminal Appeal No.458/2010.

The appeal was contested by the respondent who was the

complainant in the Trial Court. The Sessions Judge's Court in its Crl.R.P.No.848/2011

order dated 14-06-2011 dismissed the appeal, confirming the

judgment of conviction and order on sentence passed by the Trial

Court in C.C.No.18951/2007.

Aggrieved by the said order, the accused has preferred this

revision petition.

2. It is the case of the complainant in the Trial Court that,

the complainant is a Credit Co-operative Society and the accused is

one of its members. The accused availed loan of a sum of `90,000/-

from it, agreeing to repay the said loan amount together with

interest thereupon at the rate of `18% per annum. The accused

failed to repay the loan amount within the agreed time which made

the complainant to demand the said loan amount. As such,

towards the repayment of loan amount, the accused issued a

cheque bearing No.870197 for a sum of `1,25,330/- drawn on

Corporation Bank, S.C. Road, Bangalore. When the said cheque

was presented by the complainant, the same came to be returned

with banker's endorsement as 'funds insufficient'. It is thereafter

the complainant got issued a legal notice demanding the cheque

amount from the accused. However, the accused neither met the Crl.R.P.No.848/2011

demand made in the notice nor replied to the said notice, which

constrained the complainant to institute a case against the accused

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

Trial Court.

3. The accused contested the matter appearing through his

counsel.

4. To prove its case, the complainant (society) got examined

the Secretary of the Society as PW-1 and got marked documents

from Exs.P-1 to P-7. The accused got himself examined as DW-1

and no document was marked from his side.

The Trial Court after recording the evidence led by both side,

by its impugned judgment of conviction dated 13-05-2010

convicted the accused for the offence punishable under Section 138

of the N.I. Act and sentenced him to pay a fine of `1,60,000/-, in

default, to undergo simple imprisonment for one year.

Challenging the same, the accused preferred an appeal in

Criminal Appeal No.458/2010 before the learned Session's Judge's

Court, which after hearing both side, by its judgment dated

14-06-2011, dismissed the appeal while confirming the judgment of Crl.R.P.No.848/2011

conviction passed by the Trial Court. Being aggrieved by the same,

the accused has preferred this revision petition.

5. The respondent herein (society) is being represented by

its counsel.

6. Learned counsel for the revision petitioner and learned

counsel for the respondent are appearing physically before the

Court.

7. The Trial Court and Sessions Judge's Court's records were

called for and the same are placed before this Court.

8. Heard the arguments from both side. Perused the materials

placed before this Court including the Trial Court and Sessions

Judge's Court's records.

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

henceforth referred to as per their rankings before the Trial Court.

10. 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?

Crl.R.P.No.848/2011

11. Learned counsel for the revision petitioner/accused in his

argument mainly canvassed only two points that the cheque in

question was issued as a security and that the said cheque was

filled by the complainant (society) itself, as such, there existed no

legally enforceable debt. However, he fairly conceded that the

accused had availed a loan of `90,000/- from the complainant in

November 2003, agreeing to repay the same with the agreed rate

of interest.

12. Per contra, learned counsel for the respondent/

complainant in his argument submitted that, it is not in dispute

that, the accused had availed loan of a sum of `90,000/- from the

complainant in November 2003, agreeing to repay the same with

the agreed rate of interest. He further submits that, admittedly,

the cheque at Ex.P-1 pertains to the accused's account with his

signature and the same came to be dis-honoured, when presented

for its realisation. He further submits that when the loan is

admitted and the accused has failed to produce any document to

show that he has cleared the loan with agreed interest thereupon,

the presumption formed in favour of the complainant has Crl.R.P.No.848/2011

precipitated into a proven fact that the accused was in debt

equivalent to the cheque amount towards the complainant as on

the date of presentation of the cheque.

13. It is not in dispute that the complainant is a Credit Co-

operative Society and the accused has availed a loan of `90,000/-

from the said Society on 06-11-2003, agreeing to repay the said

loan together with agreed rate of interest there upon. In this

regard, the accused who got himself examined as DW-1, in the very

opening sentence of his cross-examination, has made a clear

admission. He has also admitted that he had agreed to repay the

said loan of `90,000/- with interest at the rate of `17% per annum.

He has further admitted a suggestion as true that he had executed

an agreement to that effect in favour of the complainant. Though a

suggestion was made to DW-1 in his cross-examination that he had

repaid eighteen monthly instalments and committed default

thereafter, the accused has denied the said suggestion, however,

agreeing that he had to repay the said loan amount within sixty

instalments. With the said admission, the accused himself has

made it clear that, he had availed a loan from the complainant on Crl.R.P.No.848/2011

06-11-2003 agreeing to repay the same with `17% interest per

annum thereupon. According to the complainant, the said loan

amount was not cleared by the accused, except paying few

instalments, which, according to the complainant as PW-1, was

totaled into a sum of `18,000/- only. As such, the remaining

amount of the principal with the agreed interest thereupon has

culminated into the cheque amount.

In that regard, once again, a question was put to DW-1,

suggesting to him that his liability towards the complainant -

Society was a sum of `1,25,330/- as on June 2006. The accused

has not denied the said suggestion, on the other hand, he has

answered as "may be". Thus, when the accused in his cross-

examination has categorically himself admitted of availing the loan

and also an alleged outstanding liability as on June 2006, the case of

the complainant is also that in the month of June 2006,

the accused gave the cheque of the equivalent amount

i.e. a sum of `1,25,330/-, but with a post-date, putting the date as

17-11-2006, the issuance of the cheque and the legally enforceable

liability as on the date of presentation of the cheque as made in the Crl.R.P.No.848/2011

evidence of PW-1 has come out in the cross-examination of DW-1

himself.

14. The accused has taken a contention that two cheques

were issued to the complainant as security by availing loan. Except

his self-serving statement, there is nothing on record to show that

he has issued two cheques as security at the time of availing the

loan. Further, it is also his contention that the contents of the

cheque were filled by the complainant (society) themselves since he

had issued blank cheques duly signed by him. In that regard, in

the cross-examination of PW-1, to a suggestion made to the

witness from the accused's side that the writings in the said

cheques are with different ink of the pen, the witness has admitted

as true. However the very same PW-1, in the very next sentence,

has also stated that these writings in the cheque were not written

by the complainant, but it was the accused who had submitted the

said cheque duly filled in all its aspects. Thus, merely because the

cheque is shown to be containing the writings with different ink of

the pen, that itself would not make it to infer that the complainant

has filled the contents of the cheque. Even otherwise also, Section Crl.R.P.No.848/2011

20 of the N.I. Act under circumstances empowers a payee of the

instrument to fill the required blanks in the instrument. The said

aspect has been reiterated by the Hon'ble Apex Court in the case of

Bir Singh Vs. Mukesh Kumar reported in AIR 2019 SUPREME

COURT 2446. However, in the case on hand, as on the said date,

there is nothing to show that it was the complainant (society) or its

officials who have filled the said cheque. Since it is the accused who

has taken such a contention, it is for him to establish the same,

which he could not.

15. Added to the above, it also cannot be ignored of the fact

that, as observed above, the accused himself has stated that there

might be outstanding liability towards the complainant from his

side amounting to `1,25,330/- as on June 2006. Thus, when even

according to the accused, the outstanding due sum might be

`1,25,330/- and the cheque amount is exactly the very same

amount, which is shown to have been drawn in favour of the

complainant, there is nothing to suspect as to who has filled the

said cheque. But the fact remains that the said cheque, when

presented for its realisation came to be returned with the banker's Crl.R.P.No.848/2011

endorsement quoting "funds insufficient" in the account of the

accused.

Admittedly, thereafter, a legal notice as per Ex.P-3 was issued

to the accused, for which, he neither met the demand made in the

notice nor replied to the same. Appreciating these facts in its

proper perspective, since both the Trial Court as well the Sessions

Judge's Court have rightly given their findings holding that the

complainant has proved the guilt of the accused for the offence

punishable under Section 138 of the N.I. Act, I do not find any

perversity, illegality or irregularity in the said finding, warranting

any interference at the hands of this Court.

16. However, with respect to the order on sentence

passed by the Trial Court which was further confirmed by the

Sessions Judge's Court, it can be seen that the Trial Court has

imposed a sentence of one year simple imprisonment upon the

accused, in case if there is default in the payment of fine of

`1,60,000/-. The sentence must always be proportionate to the

gravity of the proven guilt.

Crl.R.P.No.848/2011

In the instant case, considering the facts and circumstances of

the case, I am of the view that the default sentence of simple

imprisonment for a period of one year ordered by the Trial Court, is

on the higher side, as such, to bring it to a reasonable quantum of

imprisonment, considering the gravity of the proven offence,

interference of this Court is warranted, confining to modifying the

default sentence of imprisonment.

Accordingly, I proceed to pass the following:-

ORDER

[i] The Criminal Revision Petition is allowed-in-part;

[ii] While confirming the judgment of conviction passed by

the XII Additional Chief Metropolitan Magistrate at

Bangalore City in C.C.No.18951/2007 dt.13-5-2010 which

was further confirmed by the learned Fast Track No.VIII,

Bangalore City, in Crl.Ap.No.458/2010 dt.14-6-2011

holding the accused guilty for the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881, and

also the quantum of the fine amount of `1,60,000/-

ordered by the Trial Court, it is only the default sentence

of imprisonment that is modified. Accordingly, the default Crl.R.P.No.848/2011

sentence of imprisonment which is one year simple

imprisonment ordered by the Trial Court is modified and

reduced to three months' simple imprisonment.

[iii] Barring this, the remaining portion of the

judgment of the Trial Court which was confirmed by the

learned Sessions Judge's Court remains unaltered.

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*