Sri B S Kantharaj vs Sri H M Shiva Prakash
2022 Latest Caselaw 1191 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 27 T H DAY OF JANUARY, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

CRIMINAL REVISION PETITION NO.1106 OF 2012

BETWEEN:

SRI B S KANTHARAJ
S/O LATE B P SHANTAPPA
AGED ABOUT 60 YEARS
R/A 36, 4TH CROSS
DWARAKANAGAR, HOSAKEREHALLI
BANGALORE-85
                                          ...PETITIONER
(BY SRI.B.S.VENKATANARAYAN, AMICUS CURIAE)

AND:

SRI H M SHIVA PRAKASH
S/O LATE H M THIPPESWAMY
AGED ABOUT 53 YEARS
R/A #259, TEJAS ARCADE
SANJAYNAGAR MAIN ROAD
ASHWATHNAGAR, BANGALORE-94
                                         ...RESPONDENT
(BY SRI.Y.H.GANESH BHAT, ADVOCATE)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
ORDER DATED 04.10.2012 PASSED BY THE P.O., F.T.C.-IV,
BANGALORE IN CRL.A.NO.218/2012 AND ALSO ORDER DATED
27.02.2012 PASSED BY THE XII A.C.M.M., BANGALORE IN
C.C.NO.24165/2009.
                                 :: 2 ::


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

                            ORDER

This revision petition is filed under section

397 Cr.P.C. questioning the correctness of the

judgment dated 4.10.2012 in Crl.A.No.218/2012

on the file of the Fast Track Court-IV, Bengaluru

City.

2. Accused is the petitioner in this revision

petition. The respondent initiated action against

the petitioner in relation to offence punishable

under section 138 of Negotiable Instruments Act

(for short 'N.I.Act'). It is the case of the

respondent that the petitioner had entered into an

agreement with one Ramakanth Revankar for

purchasing 8 guntas of land out of 1 acre 10

guntas in Sy.No.214-1B, Khata No.332 of

Kodigehalli, Yelahanka Taluk, Bengaluru North

Taluk. The petitioner wanted to construct a

multi-storied residential apartment in the land that :: 3 ::

he wanted to purchase and since he was in dearth

of money, he approached the complainant to

develop the property jointly and in this regard

they entered into a Memorandum of Understanding

(MoU) on 5.5.2006. In terms of the MoU the

complainant and one Ananda Kumar paid a sum of

Rs.19,50,000/- to the petitioner. Later on the

petitioner failed to obtain absolute sale deed from

Ramakanth Revankar and therefore the project

that the petitioner and the complainant wanted to

complete in terms of the MoU also failed. Then

the complainant demanded the petitioner to return

his money and at last after repeated demands, he

issued a cheque bearing No.007783 dated

8.5.2009 drawn on State Bank of Mysore for

Rs.19,50,000/-. The complainant presented this

cheque for encashment at his Bank and when it

was dishonoured for 'insufficiency of funds' in the

bank account of the petitioner, the respondent

initiated action after issuing demand notice. The :: 4 ::

trial court held the accused guilty of the offence

under section 138 of N.I.Act and sentenced him to

fine of Rs.28,10,000/- with default sentence

imprisonment period of six months. When the

petitioner questioned the judgment of the trial

court in the appellate court, his appeal came to be

dismissed by the impugned judgment and hence

this revision petition.

       3.    I   have    heard   the    argument      of     Sri.

B.S.Venkatanarayan,         learned     Amicus     Curiae    for

the petitioner and Sri. Y.H. Ganesh Bhat, counsel

for the respondent.

4. Sri. B.S. Venkatanarayan submitted that

the courts below might have concurrently held that

the petitioner is guilty of the offence under section

138 of N.I.Act, but they have failed to notice one

aspect of the matter that the respondent has not

been able to prove that the cheque in question

was issued for discharging the liability of :: 5 ::

Rs.19,50,000/-. The respondent has founded his

case on the MoU marked Ex.P.5, its terms only

indicate that the respondent agreed to lend to the

petitioner an amount of Rs.12,00,000/-. MoU

came into existence for development of a landed

property which the petitioner wanted to purchase

from one Ramakanth Revankar for a total sale

consideration of Rs.14,00,000/-. By the time MoU

was executed, the petitioner had already paid

Rs.7,00,000/- to Ramakanth Revankar and that

the respondent under took to pay the balance of

Rs.7,00,000/- directly to Ramakanth Revankar

besides Rs.5,00,000/- to the petitioner for his

personal commitments. That means the total sum

payable under MoU was only Rs.12,00,000/-. But

the endorsements made on the MoU, which are

disputed by the petitioner, indicate totally a sum

of Rs.19,50,000/- being paid. The petitioner does

not dispute payment of Rs.4,50,000/- as per one

endorsement. All other endorsements are :: 6 ::

disputed. The MoU bears the date 5.5.2006, but

there is an endorsement dated 1.5.2006 showing

payment of Rs.4,00,000/- to the petitioner. It is

highly impossible that before the MoU came into

existence, an endorsement dated 01.05.2006 could

be made on the MoU. There is another

endorsement that one Anand Kumar made payment

of Rs.2,00,000/- to the petitioner on 29.8.2006,

but he was not examined. In fact the appellate

court has doubted the genuineness of these

endorsements, yet it proceeded to confirm the

judgment of the trial court only on the ground that

the petitioner failed to rebut the evidence of the

respondent and by wrongly raising presumption

under section 139 of N.I.Act in favour of the

respondent. He also submitted that the trial court

has not at all appreciated the evidence of the

respondent in the light of the terms of the MoU,

and that it has given a wrong finding to the effect

that the evidence adduced by the petitioner is full :: 7 ::

of inconsistencies. He submitted that even

assuming that there is inconsistency in the

evidence of the petitioner, the trial court and the

appellate court were supposed to have examined

whether the evidence given by the respondent was

inherently free from doubtful circumstances. In

this view both the courts have grossly erred in

holding the petitioner guilty of the offence under

section 138 of N.I.Act. Hence he prayed for

upsetting the judgments of the courts below and

acquitting the petitioner.

5. Learned counsel for the respondent Sri.

Y.H. Ganesh Bhat, submitted that when both the

courts below have concurrently held on facts that

the petitioner issued the cheque in question for

discharging the liability, in the revision petition

interference with the findings on the facts is not

permitted. The petitioner admits his signature on

the cheque. He admits Ex.P.5, the MoU. His :: 8 ::

evidence clearly shows to have received money

from the respondent on different dates. He also

admits that he received a certain sum of money

from Ananda Kumar. In this view the trial court in

the first instance properly came to conclusion that

the petitioner issued a cheque for clearing his

liability of Rs.19,50,000/-. In view of this, the

trial court has rightly drawn presumption under

section 139 of N.I.Act in favour of the petitioner.

If the defence evidence of the petitioner is

considered, it is not consistent and this has been

correctly observed by the trial court. On one hand

the petitioner says that the respondent obtained

the cheque forcibly from him and on the other

hand, he states that he issued the cheque for

security purpose. Thus the petitioner failed to

rebut the evidence given by the respondent. A

notice was issued to the petitioner before filing

complaint. He received it and did not reply. If the

case of the petitioner is really believable, nothing :: 9 ::

prevented him from replying to the legal notice.

There is no probability in the defence put forward

and therefore there is no scope for interfering with

the judgment of the appellate court.

6. The findings of the trial court are that

the petitioner has admitted his signature on the

MoU marked as Ex.P.5, and this very admission is

sufficient to hold the payment of amounts to the

petitioner. What the trial Court has meant in

stating so is payment of Rs.19,50,000/-. Further

it is held that the petitioner has admitted his

signature on the cheque and that the defence is

not consistent. In this view, presumption under

Section 139 of N.I.Act has not been rebutted and

thus the respondent has been able to prove his

case.

7. The appellate court holds that the

endorsement dated 01.05.2006 marked as Ex.P.5

is not credit worthy. Having observed so, the :: 10 ::

appellate court yet holds that since the petitioner

has not been able to dislodge the presumption in

view of inconsistency in his evidence, the

petitioner can be held guilty for the offence under

Section 138 of N.I.Act.

8. In my considered opinion both the courts

have failed to comprehend the evidence.

Undoubtedly there is no proper application of mind

to the facts and the evidence brought on record.

Firstly if the premise on which the respondent

initiated action against the petitioner is seen, it

can be gathered from the averments made in the

complaint that the respondent made payment of

Rs.19,50,000/- to the petitioner as per the terms

of Ex.P.5. The respondent has stated that he and

one Ananda Kumar made the payments, and to

this effect there are endorsements made on

different dates, and they show total payment of

Rs.19,50,000/-. But the terms of Ex.P.5 are that :: 11 ::

the petitioner and the respondent agreed to

develop the property jointly, that the respondent

undertook to pay the balance of Rs.7,00,000/- to

the land owner Ramakanth Revankar and bear

other incidental expenses and that he also agreed

to pay Rs.5,00,000/- to the petitioner for his

personal commitments. That means, the

respondent was to make payment of

Rs.12,00,000/- (Rs.7,00,000/-+Rs.5,00,000/-) and

other incidental charges for registration of sale

deed. It is not disputed that the sale transaction

failed, and therefore the sum that respondent

might have paid to the petitioner is Rs.12,00,000/-

only. The petitioner admits to have received

Rs.3,50,000/- on 16.06.2006 and Rs.1,00,000/- on

26.06.2006 and he admits the endorsement to this

effect found in Ex.P.5. But he disputes all other

endorsements and the signatures below them.

Though it is possible to infer that signatures found

below the endorsements are that of the petitioner :: 12 ::

despite their denial by him, and that there is no

consistency in his defence, it is not possible to

accept the respondent's case that the petitioner

issued the cheque in question for discharging

liability of Rs.19,50,000/-.

9. Ex.P.5 is the document that the

respondent has relied upon to prove the existence

of legally enforceable debt. This document shows

liability of Rs.12,00,000/- only. Payment of

incidental charges did not arise because the sale

deed was not executed. DW1, i.e., the petitioner

has stated in para 4 of his affidavit that the

respondent did not pay Rs.2,50,000/-. The

petitioner has admitted to have received only

Rs.4,50,000/-. The counsel for the respondent

referred to one answer of DW.1 in his cross

examination that he received one payment from

Ananda Kumar and submitted that this admission

would prove the transactions. But this argument :: 13 ::

cannot be accepted, for it is just a stray answer.

If the tenor of cross-examination of PW.1 and

questions put to DW.1 are seen, what appears is

that he has not accepted to have received

Rs.19,50,000/- except Rs.4,50,000/- and at least

in this regard his stand is consistent. More than

all, there is one endorsement which makes the

respondent's case unbelievable. Ex.P.5 came into

existence on 05.05.2006. That means all the

endorsements should have been made subsequent

to 05.05.2006. There is no explanation as to how

and for what reason an endorsement was made on

01.05.2006 for receipt of Rs.1,00,000/-. This has

been observed by the appellate Court. In this

view, all the payments as evidenced by

endorsements must have been in relation to a

different transaction. But the respondent has tried

to link these payments to transaction under Ex.P.5

to prove existence of legally enforceable debt for

discharge of which, the cheque in question is said :: 14 ::

to have been issued. Thus seen, there is no

congruence in the averments made in the

complaint and the evidence placed by him.

Therefore presumption under Section 139 of

N.I.Act cannot be drawn. In spite of inconsistency

in the defence version of the petitioner the

respondent's case does not stand on its own

strength and therefore it is not possible to hold

that the offence under Section 138 of N.I.Act is

proved against the petitioner. For these reasons

the judgments of both the Courts below are to be

set-aside. Hence the following:

ORDER

Revision petition is allowed.

The judgments of the appellate court as well as that of the trial court in Crl.A.No.218/2012 dated 04.10.2012 and in C.C.No.24165/2009 dated 27.02.2012, respectively, are set aside.

:: 15 ::

The petitioner is acquitted of the offence under section 138 of N.I.Act.

Deposit of fine amount, if any, made by the petitioner by virtue of the order of the appellate Court/trial Court shall be refunded to the petitioner.

         The   Legal      Services      Authority     is
    directed   to   pay    Rs.10,000/-         to   Sri.
    B.S.Venkatanarayan           for    the    service
    rendered by him as amicus curiae.




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                                       JUDGE


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