Sri Puttaswamy vs Sri G Srinivasa
2021 Latest Caselaw 685 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.753 OF 2011

BETWEEN:

Sri. Puttaswamy,
S/o. Late Puttaswamy,
Aged 51 years,
Residing at No.271/12,
Kodigehalli village,
Yeshwanthapura Hobli,
Magadi Main Road,
Bangalore- 560 091.

                                                 ..Petitioner
(By Sri. C. Rajanna, Advocate)

AND:

Sri. G. Srinivasa,
S/o. Govindappa,
Aged about 49 years,
Residing at No.55,
6th Temple Road,
Kodandarampura,
Malleshwaram,
Bangalore.
                                                .. Respondent

(By Sri. M. Mohan Kumar, & Sri.Anand R.V., Advocates)
                                               Crl.R.P.No.753/2011
                                  2


                                    ****
      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 15-02-2011 in Crl.A.No.784/2010
passed by the District and Sessions and Fast Track Court-IV,
Bangalore city, confirming the judgment dated 21-09-2010 in
C.C.No.20691/2008, passed by the XIII Additional Chief
Metropolitan Magistrate, Bangalore.

      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 XIII Additional Chief Metropolitan Magistrate,

Bangalore, (hereinafter for brevity referred to as the "Trial Court"),

in C.C.No.20691/2008 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

21-09-2010.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the learned District and Sessions and Fast Crl.R.P.No.753/2011

Track Court-IV, Bangalore City, (hereinafter for brevity referred to

as the "Sessions Judge's Court") in Criminal Appeal No.784/2010.

The appeal was contested by the respondent who was the

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

order dated 15-02-2011 dismissed the appeal, confirming the

judgment of conviction and order on sentence passed by the Trial

Court dated 21-09-2010 in C.C.No.20691/2008.

Aggrieved by the said order, the accused has preferred this

revision petition.

2. The summary of the case of the complainant is that, the

accused and himself were good friends and known to each other for

the past fifteen years. During the second week of March 2008, the

accused approached him seeking for a financial assistance of a sum

of `1,75,000/-, promising to repay the same within three months.

At his request, the complainant gave him a hand loan of a sum of

`1,75,000/- in the third week of March 2008 by way of cash.

Towards the repayment of the loan amount, the accused issued a

posted dated cheque bearing No.259099 dated 25-06-2008 drawn

in favour of the complainant on the Bank of India, Basaveshwara Crl.R.P.No.753/2011

Nagar Branch, Bangalore, for a sum of `1,75,000/-. After the due

date of the cheque for presentation arrived, the complainant, at the

instruction of the accused, presented the said cheque for its

realisation only to get a banker's endorsement that, the account of

the drawer was closed. Thereafter, the complainant issued a legal

notice to the accused, demanding the cheque amount. Since the

accused neither replied to the said notice nor met the demand

made in the notice, the complainant was constrained to institute a

criminal case against him for the offence punishable under Section

138 of N.I. Act.

3. The accused appeared through his counsel and contested

the matter.

4. To prove his case, the complainant got himself examined

as PW-1 and got marked the documents from Exs.P-1 to P-12. The

accused got himself examined as DW-1 and got marked Bank Pass

book as the sole document at Ex.D-1.

The Trial Court after recording the evidence led before it and

hearing both side, by its impugned judgment dated 21-09-2010 Crl.R.P.No.753/2011

convicted the accused for the offence punishable under Section 138

of the N.I. Act and sentenced him to pay a fine of `1,80,000/-, in

default, to undergo simple imprisonment for six months.

Challenging the said judgment of conviction passed by the Trial

Court, the accused preferred an appeal in Criminal Appeal

No.784/2010 before the learned Sessions Judge's Court, which after

hearing both side, by its impugned judgment dated 15-02-2011

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.

Crl.R.P.No.753/2011

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 petitioner in his arguments

submitted that the Courts did not appreciate the defence taken up

by the accused that the cheque in question without filling the

amount therein was issued to the complainant in the year 2002

while the accused had availed a loan of `20,000/-. However the

complainant without returning the said cheque even after

repayment of the loan to him, has misused the same and presented

it to the Bank. He further submits that the bank Pass Book at Crl.R.P.No.753/2011

Ex.D-1 goes to show that the immediate previous serial numbers of

the cheque were presented to the Bank in the year 2000, as such,

the question of issuing the cheque in question eight years

thereafter i.e. in the year 2008 is highly impossible. He further

submits that, though the complainant claims himself to be an

Income Tax assessee, he has failed to produce the income tax

returns to show that the present loan transaction is reflected in it.

With this, he prays for allowing the revision petition.

11. Learned counsel for the respondent/complainant in his

argument submitted that the defence taken up by the accused is

purely an after-thought. He did not reply to the notice sent by the

complainant, exhibiting his alleged defence at the earliest point of

time. He also submitted that non-taking of any action by the

accused towards the alleged non-returning of the documents of the

immovable property and the alleged blank cheque from the alleged

possession of the complainant itself would go to show that the

defence taken up by the accused is unwarranted and unfounded.

Crl.R.P.No.753/2011

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

are known to each other. The complainant apart from stating in his

complaint that accused was his good friend who was known to him

for the past twenty years, has also stated in is Examination-in-chief

as PW-1 that, for the past fifteen years prior to the date of

evidence, the accused was known to him and had availed loans

from him for at least not less than twenty times. The said evidence

of the complainant has not been denied or disputed from the

accused's side. Thus, it is established that the accused and the

complainant were acquainted with each other for a long time.

13. The accused who got himself examined as DW-1 has

clearly stated that the cheque at Ex.P-1 pertains to him and the

signature at Ex.P-1(a) belongs to him. Therefore, he has admitted

that the cheque in question which is at Ex.P-1 pertains to his bank

account and that he has signed the cheque in his capacity as a

drawer. Though the accused made a suggestion to PW-1 in his

cross-examination that the contents of the said cheque were filled

by the complainant, but the said suggestion was denied by the

complainant. Therefore, it remains as established that the cheque Crl.R.P.No.753/2011

at Ex.P-1 was issued by the accused in favour of the complainant.

Admittedly, the said document came to be dis-honoured for the

reason of closure of the account of the drawer as evidenced in the

banker's endorsement at Ex.P-2.

14. It is not in dispute that the complainant has issued a

legal notice thereafter to the accused demanding the payment of

the cheque amount, as evidenced from the copy of the legal notice

which is at Ex.P-3. Admittedly, the accused has neither responded

to the legal notice nor met the demand made in the notice. Thus, a

presumption about the existence of a legally enforceable debt forms

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

However, the said presumption is rebuttable.

15. The complainant, as PW-1, has reiterated the contents of

his complaint in his examination-in-chief. He specifically stated that

the hand loan of a sum of `1,75,000/- was given to the accused in

the form of cash in the third week of March 2008, to lend which

sum, he had source of fund since he was doing real estate business

and also had drawn the amount from both his account as well as Crl.R.P.No.753/2011

from the account of his wife. To show the same, he has produced

two bank accounts' statements at Exs.P-11 and P-12. The defence

of the accused, which is also his attempt to rebut the presumption

that was formed in favour of the complainant was that, he

(accused) had availed a loan of `20,000/- from the complainant in

the year 2002 and at that particular point of time, the complainant

was running a financial business in the name of Mahendra Finance

and Enterprises. It was at that time, at the asking of the

complainant, he had issued a blank cheque, but duly signed, as a

security. Even after clearing the said loan, the complainant did not

return the said cheque on the pretext of having lost the same, but

only misused the same by presenting it to the banker in the year

2008. The suggestions made to PW-1 on these lines were not

admitted as true by the witness. As such, the said defence of the

accused has remained at the stage of only making a suggestion to

the complainant in his cross-examination.

On the other hand, though the accused also in his evidence as

DW-1 reiterated the same defence, but did not substantiate the

same with any proper documents to show that he had availed any Crl.R.P.No.753/2011

loan from the complainant in the year 2003, and at that particular

point of time, he had issued one cheque to him only as a security.

It is pertinent to note here that the accused has categorically at

more than one place, stated that at the relevant point of time, from

the year 2000 and subsequent years, the complainant was running

a Finance business in the name and style of M/s. Mahindra Finance

and Enterprises, but the complainant did not admit the said

suggestion as true. If it were to be the contention of the accused

that complainant was running a finance business as a financier and

that he had availed a loan of `20,000/- from him in the year 2002,

then, he ought to have some documents with him to show that he

had availed the loan. It is also because, it is the specific case of the

accused that complainant was running a finance business as a

financier doing an exclusive business in finance, one is normally

expected to maintain records and the business transactions would

be documented, as such, a loanee also would get some

documentation in the form of loan chit or pass book etc. to

evidence the transaction of the loan. However the accused neither

stated that he had not received or retained any such loan Crl.R.P.No.753/2011

documents nor produced any of such documents to show that not

only he had availed a loan of `20,000/- from the complainant in

the year 2002, but also to show that at that time, he had given this

cheque in question to the complainant as a security. Therefore, the

said leg of defence of the accused also does not inspire any

confidence to believe in it.

16. As a continuation of the same defence, the accused has

also come up with a defence that the nearby cheques to the serial

number of the cheque in question were issued by him at the

relevant point of time in the year 2000 and they were presented in

the Bank in the year 2000, as such, its immediate next serial

number of the cheque which is the present cheque bearing

No.259099 could not have been issued by him in the year 2008. In

his support, he has produced a pass book of his bank account and

got it marked at Ex.D-1 and he has drawn the attention of the

Court to one particular entry dated 16-09-2000.

        No    doubt,       the   said    entry         goes    to     show      that   the

cheque       bearing   No.259098        is    shown      to    have    been      realised/

encashed        on     16-09-2000,           however,         in    the      month      of

March    2002,       one    more   cheque         of    the   same     series     bearing
                                                 Crl.R.P.No.753/2011



No.259095    was    presented   to    the    banker   on   06-04-2002.

Therefore, the very document produced by the accused itself goes

to show that in different years, the same series of the cheque

bearing serial Nos.259098, 259095, etc were being presented and

it also shows that those cheques were issued in favour of different

persons. Thus it goes to show that the accused was in the habit of

issuing same series of cheques to different persons at different

periods spreading into few years. For this reason and also for the

reason that there is no mandate in law that the cheque book has to

be exhausted by the account holder only through serial numbers

and in a short time. The argument of the learned counsel for the

revision petitioner that the presentation of the cheque in question

nearly about six years after its series ended would lead to any

suspicion, is not acceptable.

17. The last leg of argument of the learned counsel for the

revision petitioner/accused is that, the complainant though claims

that he is an income tax assessee and has documents including his

income tax returns, has failed to produce any of those documents

which also creates a doubt about the existence of a legally Crl.R.P.No.753/2011

enforceable debt. The said argument of the learned counsel for the

revision petitioner is not acceptable for the reason that, merely

because the complainant claims to be an income tax assessee, it is

not mandatory that in a proceeding for the alleged offence

punishable under Section 138 of the N.I. Act, he is required to

present the income tax returns, unless the situation warrants.

In the instant case, the evidence led by both side does not

make it mandatory on the part of the complainant to produce the

income tax returns. On the other hand, the complainant has stated

that he is an income tax assessee and that he has got the

documents to show that he has filed the income tax returns. But,

accused cannot mandate the complainant that he should produce

those documents to substantiate his case, for the simple reason

that, there is a presumption in his favour about the existence of a

legally enforceable debt and the burden to rebut the said

presumption is upon the shoulder of the accused. Except making a

suggestion eliciting from PW-1 that he is an income tax assessee,

the accused could not able to elicit any further statements from the

complainant, compelling him to produce the income tax returns, to Crl.R.P.No.753/2011

substantiate his contention. As such, the said argument of the

leaned counsel for the petitioner on the point of non-production of

the income tax returns by the complainant, is also not acceptable.

18. Barring the above, no other grounds worth considering

this revision petition has been forwarded by the petitioner in the

matter. On the other hand, both the Trial Court as well as the

learned Sessions Judge's Court after appreciating the evidence

placed before them in their proper perspective, have arrived at a

uniform finding that the complainant has proved the alleged guilt

against the accused. I do not find any perversity, illegality or

irregularity in the said finding given by the Trial Court as well as the

learned Sessions Judge's Court.

19. Since the quantum of sentence ordered by the Trial Court

also being proportionate to the gravity of the proven guilt, I do not

find any reasons to interfere in the sentence portion also.

Accordingly, I proceed to pass the following:

ORDER Crl.R.P.No.753/2011

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*