K H Ramappa vs K H Manjunath
2022 Latest Caselaw 1631 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 3RD DAY OF FEBRUARY, 2022

                    BEFORE

 THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR

   CRIMINAL REVISION PETITION No.204/2017

BETWEEN:

K.H.RAMAPPA
S/O HUCCHANAYAKA
AGED 60 YEARS
AGRICULTURIST
R/AT KELADIYAVARA MANE
KUGVE VILLAGE & POST
TALAGUPPA HOBLI
SAGAR TALUK - 577 401
                                  ... PETITIONER
(BY SMT. SOHANI HOLLA, AMICUS CURIAE)

AND:

K.H.MANJUNATH
S/O KERIYAPPA
AGED 45 YEARS
R/AT NO.21,
KOWTHI GRAMA
M.L.HALLI POST
KASABA HOBLI
SAGAR TALUK - 577 401
                                ... RESPONDENT
(BY SRI. UMESH MOOLIMANE, ADV. FOR
    SRI. S.V.PRAKASH, ADV.)
                             2



     THIS CRL.R.P. IS FILED UNDER SECTION 397 (1)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
OF APPELLATE COURT DATED 25.11.2016 PASSED BY
THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE,
SHIVAMOGGA,        SITTING     AT   SAGAR     IN
CRL.A.NO.224/2015        ARISING    OUT      OF
C.C.NO.379/2013 DATED 17.08.2015 PASSED BY THE
ADDITIONAL CIVIL JUDGE AND JMFC, SAGAR.

    THIS CRIMINAL REVISION PETITION COMING ON
FOR FINAL HEARING, THIS DAY THROUGH VIDEO
CONFERENCING,    THE     COURT    MADE    THE
FOLLOWING:
                         ORDER

This Criminal Revision Petition is filed by the

accused in C.C.No.379/2013 on the file of Judicial

Magistrate First Class, Sagara.

2. The facts are as below:

The respondent initiated action against the

petitioner for offence punishable under Section 138 of

Negotiable Instruments Act (for short 'N.I. Act') by filing

complaint under Section 200 Cr.P.C. He has stated in

the complaint that on 25.10.2012, the petitioner

obtained hand loan of Rs.1,00,000/- from him assuring

that he would repay the same within a month. When he

did not repay, the respondent demanded repayment

repeatedly and at last, the petitioner issued a cheque

bearing No.504761 dated 10.01.2013 for Rs.1,00,000/-

to him towards repayment of the hand loan. The

respondent deposited the said cheque in his bank on

15.03.2013 and on the same date, it was returned

without payment as there was no sufficient funds in the

account of the petitioner. Therefore, the respondent

issued demand notice to the petitioner on 25.03.2013.

The petitioner received the notice but did not reply nor

repaid the amount. Therefore, the respondent filed the

complaint.

3. The learned Magistrate after appreciating the

evidence of the respondent who adduced evidence as

P.W.1 by producing four documents as per Exs.P.1 to

P.4, came to the conclusion that the petitioner issued

cheque for discharging the hand loan he had obtained

and that the petitioner failed to rebut the case of the

respondent and thus, he had committed offence

punishable under Section 138 of N.I. Act. Having held

that the petitioner is guilty of the said offence, he

sentenced him to fine of Rs.1,00,000/- with a default

sentence of six months imprisonment. Out of the said

fine amount, Rs.95,000/- was ordered to be paid to the

respondent by way of compensation.

4. Aggrieved by the judgment of conviction, the

petitioner approached the District Court by filing

Crl.A.No.224/2015. By order dated 25.11.2016, the

appeal came to be dismissed and therefore, the

petitioner is before this Court in this revision petition.

5. I have heard Smt. Sohani Holla, learned

Amicus Curiae for the petitioner and Sri.Umesh

Moolimane, learned counsel for the respondent.

6. Smt. Sohani Holla submits that both the

Courts below have erred in convicting the petitioner for

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

Her argument is that the respondent has not been able

to prove that he is an agriculturist and that he had

capacity to lend Rs.1,00,000/- to the petitioner. When

the financial capacity of the respondent is not proved,

then it is highly impossible to believe that he would

have lent amount of Rs.1,00,000/- to the petitioner.

She further submits that according to Sections 266 and

266 SS of the Income Tax Act (for short 'I.T. Act'), any

amount exceeding Rs.20,000/- should be paid by way of

cheque. This being the requirement according to I.T.

Act, payment of Rs.1,00,000/- by way of cash to the

respondent cannot be believed. She has also argued

that the respondent has not produced any document to

show that he is an agriculturist. He has stated in the

cross-examination that he had sold ginger crop and that

he has not produced any document in proof of it. This

being the factual circumstances that can be made out

from the cross-examination of P.W.1, the trial Court as

well as the appellate Court ought to have drawn

inference that lending of money by the respondent to

the petitioner was highly improbable. Thus, the

petitioner was able to rebut the evidence of the

respondent. For these reasons, the judgment of the

appellate Court and the trial Court are to be set aside

and the petitioner is to be acquitted of the offence

punishable under Section 138 of N.I. Act.

7. Sri. Umesh Moolimane, learned counsel for

the respondent argued that the respondent is an

agriculturist. In fact, it has been elicited from P.W.1 in

his cross-examination that he is doing agriculture and

possessed 1 acre 5 guntas of wet land and 1 acre dry

land. He further submits that his mother possesses 1

acre 33 guntas of garden land (Bhagaytu). No further

suggestion was given to him that he does not possess

agricultural land and therefore, there was no necessity

for him to produce any document in proof of owning and

possessing agricultural land. He has clearly stated in

his cross-examination that since he had sold ginger, he

had cash with him. Thus financial capacity of the

respondent has been proved. The petitioner admits his

signature on the cheque and there was no explanation

as to how respondent could possess the cheque issued

by the petitioner and therefore, presumption under

Section 139 of N.I. Act was rightly raised by trial Court.

In this view, when both Courts have held that petitioner

had issued the cheque for discharging the hand loan

that he had obtained from the respondent, in the

revision, there cannot be interference with findings on

facts. There is no perversity in appreciation of evidence.

Therefore, this revision petition is liable to be dismissed,

he argued.

8. After hearing both sides, it may be stated at

the outset that the petitioner does not dispute his

signature on the cheque in question. It is the case of

the respondent that on 25.10.2012, the petitioner

borrowed a sum of Rs.1,00,000/- from him for meeting

his family necessities and to discharge that loan, he

issued the cheque in question. It is true that the

complainant has to prove his financial capacity when it

is disputed. In cross-examination, it is elicited from

P.W.1 that the respondent possesses certain extent of

lands. As argued by Sri.Umesh Moolimane, there was

no further question to P.W.1 that he is not an

agriculturist and that he does not possess any

agricultural land. Therefore, it was unnecessary for the

respondent to have produced a document to prove

that he is an agriculturist. P.W.1 has stated that he

had cash with him as he had sold ginger. He might

have answered that he does not know the name of the

person to whom or on which date he had sold ginger

crop. But he has clearly stated that he had sold 35

quintals of ginger at the rate of Rs.3,000/- per quintal

in the month of June, 2012. He might have stated that

he does not have any document to show the sale of

ginger crop. The sale of agricultural produce may be

presumed applying Section 114 of the Evidence Act, as

generally whenever agricultural products are sold at the

fields to a private party, hardly any document will be

obtained. This is how things do take place. When

P.W.1 has stated very clearly that he sold ginger at the

rate of Rs.3,000/- per quintal, inference may be drawn

that he might have sold the crop and received the

money. Thus seen, financial capacity of the respondent

has been proved. It is true that Section 269 SS of I.T.

Act envisages that payment of any amount more than

Rs.20,000/- is to be made by issuing account payee

cheque, bank draft or through electronic clearing

system. But second proviso to this Section exempts the

payment by any of the specified modes if lender and

borrower have agricultural income and are not

chargeable to income tax. So this argument cannot be

accepted. P.W.1 is an agriculturist and that he had

sufficient funds with him for lending Rs.1,00,000/- to

the petitioner. If the cross-examination is considered in

entirety, it does not indicate that it is untrustworthy. In

this view, the trial Court is justified in coming to the

conclusion that the petitioner had borrowed money from

the respondent and for discharging the same, he issued

the cheque in question. To emphasize, the petitioner

does not dispute his signature on the cheque. For these

reasons, the case of the respondent is further fortified

and rightly, presumption under Section 139 can be

drawn. Thus seen, both Courts have not committed any

error in convicting the petitioner for the offence

punishable under Section 138 of N.I. Act.

9. So far as sentence is concerned, it appears that

the trial Court has not applied its mind to the

sentencing structure provided under Section 138 of N.I.

Act. Anyway, the respondent has not questioned the

inadequacy of the sentence. With these discussions, I

come to the conclusion that the petition is liable to be

dismissed and therefore, it is dismissed.

Service of Smt. Sohani Holla as Amicus Curiae is

placed on record. Since she submits that her service be

considered as pro bono, no fee is fixed.

Sd/-

JUDGE

pgg