Karnataka High Court
Chennamallappa vs K P Basavanna on 12 January, 2022
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE P.N. DESAI
CRIMINAL REVISION PETITION NO.258/2013
BETWEEN:
CHENNAMALLAPPA
S/O. PUTTASWAMAPPA
AGED 50 YEARS
R/O. HADYA VILLAGE
NANJANGUD TALUK
MYSORE DISTRICT-571 119.
...PETITIONER
(BY SRI. M.Y.SREENIVASAN, ADVOCATE)
AND
K.P.BASAVANNA
S/O. LATE PUTTABALAPPA
R/O. KARAHATTI VILLAGE,
NANJANGUD TALUK ,
MYSORE DISTRICT-571 118.
... RESPONDENT
(BY SRI.R.B.ANNEPPANAVAR, ADVOCATE)
THIS CRIMINAL REVISION PETITON IS FILED U/S.397
R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DATED:20.02.2013 PASSED BY THE I ADDL. S.J., MYSORE IN
CRL.A.53/2012 AND SET ASIDE THE JUDGMENT OF
CONVICTION DATED 23.02.2012 PASSED BY THE ADDL. C.J.
(JR.DN.) & JMFC, NANJANGUDU IN C.C.NO.1422/2009.
THIS PETITION COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
2
ORDER
This Revision petition is filed challenging the order dated
20-02-2013, dismissing the Criminal Appeal No.53/2012 filed
before the I Additional Sessions Judge, Mysuru, and confirming
the Judgment of conviction and sentence passed by the Civil
Judge & JMFC, Nanjangud, in CC No.1422/2009 dated
23-02-2012 wherein the revision petitioner who was the
accused was convicted for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881 ('N.I Act' for
short) and was sentenced to pay fine of Rs.1,52,000/- and in
default of payment of fine, to undergo Simple Imprisonment for
a period of six months and out of the fine amount, a sum of
Rs.1,50,000/- was ordered to be paid to the complainant as
compensation.
2. The revision petitioner was the accused and the
respondent was the complainant before the trial Court. They
will be referred to as per their respective ranks before the trial
Court for convenience.
3. The respondent lodged a complaint before the trial
court contending that the complainant and the accused are
known to each other. The accused approached the complainant
for financial assistance during the First week of June, 2009 to
the tune of Rs.1,50,000/- for the purpose of his legal necessity.
Accordingly, the complainant paid the amount. The accused
agreed to repay the same within 1½ months. Thereafter, when
the complainant demanded the accused to repay the amount,
the accused issued a cheque bearing No.232343 for a sum of
Rs.1,50,000/- drawn on Cauvery Kalpatharu Grameena Bank
and asked the complainant to encash the same by presenting
the same. Accordingly, the complainant presented the cheque
to Syndicate Bank, Nanjangud. The said cheque was returned
with an endorsement "funds in the accounts are insufficient".
In this regard, the complainant issued a legal notice on 11-09-
2009 calling upon the accused to pay loan amount. When the
said notice was served, the accused has not chosen to repay
the amount nor replied to the said notice. Hence, the
complainant lodged a complaint before the JMFC court for
taking action against the accused as per the N.I Act.
4. Before the trial court, the complainant was
examined as PW.1 and got marked nine documents Exs.P-1 to
P-9. Thereafter the statement of the accused was recorded.
The accused/revision petitioner led defence evidence of himself
as DW1, but no documents were marked. After hearing the
arguments, learned JMFC convicted the accused for the offence
stated above which was challenged by the revision petitioner
before the learned Sessions Judge, Mysuru wherein the I
Additional Sessions Judge by order dated 20th February 2013,
in Criminal Appeal No.53/2012 dismissed the said appeal, by
confirming the Judgment of conviction which is now assailed in
this revision petition.
5. Heard Sri M.Y.Sreenivasan, learned counsel for the
petitioner and Sri R.B.Anneppanavar, learned counsel for the
respondent.
6. Learned counsel appearing for the revision
petitioner - Sri M.Y.Sreenivasan submits that the Judgment
passed by both the Courts are erroneous and opposed to rule
of law and evidence. It is also argued that the said Judgment
of conviction is not sustainable and the courts have grossly
erred in appreciating the evidence. It is also contended that
the Courts have erred in appreciating the relationship between
the petitioner and the respondent. The transaction itself is a
false story. A false case is foisted against the
accused/petitioner by misusing the said cheque. The courts
have failed to consider the capacity and the source of income of
the complainant. The documents are fabricated. Therefore,
the learned counsel prayed to set aside the Judgment of the
first appellate Court as well as the Judgment of conviction
passed by the trial court.
7. Against this, the learned counsel for the respondent
Sri R.B.Anneppanavar, argued that both the Courts have rightly
appreciated the evidence in its proper perspective and
considered both oral and documentary evidence. The trial
court has rightly convicted the accused which is re-appreciated
by the first appellate court and the first appellate Court has
also come to a right conclusion in confirming the said
Judgment. The Judgments of both the Courts are legal and
valid and there are no grounds to interfere with the Judgment
of conviction. Accordingly, he prayed to dismiss the revision
petition.
8. I have perused the revision petition. The Judgment
of both the Sessions Court as well as the trial court and also
the records of the trial court.
9. From the above materials, the point that arise for
my consideration is:
"Whether the impugned order passed by both
courts are correct, legal and in conformity with the
settled principle regarding appreciation of evidence
in cases under Section 138 of the Negotiable
Instruments Act, 1881, which are popularly called
as cheque bounce cases?"
10. It is evident that before the trial Court, the
complainant got examined himself as PW.1. He has filed
examination-in-chief evidence by way of an affidavit which is
nothing but reiteration of the averments made in the
complaint. He has also produced the cheque in question which
is marked as Ex.P-1, which shows that the accused has issued
a cheque for Rs.1,50,000/- in favour of the complainant. The
issuance of cheque and signature on the cheque are not
disputed by the accused/revision petitioner. Ex.P-2 is the
endorsement issued by bank which shows that the said cheque
issued by the accused was returned with an endorsement
"funds insufficient". He has also produced the memo issued by
Bank. Ex.P-3 is the legal notice dated 11-09-2009 issued by
the accused contending that the said cheque was dishonoured
and accused was called upon to make the payment. Ex.P-4 is
the postal acknowledgement. Ex.P-5 is the certificate of posting
which also indicates that the notice was duly sent and served
on the accused. In the cross-examination, it is elicited that
both the accused are known to each other and in fact they are
relatives. PW.1 has also stated that he is an agriculturist. In
fact it is evident that the complainant got marked RTCs which
are at Ex.P-6 to P-9 which shows that complainant owns
agricultural lands. So that itself shows that the complainant is
an agriculturist and having source of income, as he is having
agricultural lands and also coconut garden lands. Further he
has stated that as the accused is known to him and he is
relative, he has given financial assistance to him. Though
some suggestions were made in the cross-examination but
there is nothing in the cross-examination of PW.1 to disbelieve
his evidence. He has identified the signature on the cheque. A
suggestion was made that accused has not issued the cheque
which is self contradictory defence. On the other hand, the
evidence of the complainant and his cross-examination clearly
indicates that he has given a loan of Rs.1,50,000/- as a
financial assistance since he knows the accused and he is his
relative and for that he has obtained valid documentary
evidence. Therefore, from the oral and documentary evidence
produced by the complainant, Exs.P-1 to P-9 clearly indicates
that the complainant had capacity to extend loan. He knows
the accused and he has obtained the cheque for discharge of
legally enforceable debt or liability by the accused. But the
said cheque was dishonoured. Therefore, a presumption arises
under Section 139 of N.I.Act and apart from the oral evidence
that the cheque was issued for legally recoverable debt and it is
for discharge of legally enforceable debt. The initial burden
casted upon the complainant to prove the ingredients of
Section 138 of N.I. Act is discharged by the complainant by
producing both oral and documentary evidence.
11. Against this the accused has lead his defence
evidence. In his defence evidence, he has taken the defence
that he has given two blank cheques to one Basavanna of
Muddahalli and out of the two cheques, the complainant had
obtained one cheque and mis-utilized the blank cheque signed
by the accused. The accused has further stated that he has
repaid the entire amount borrowed by him to Basavanna of
Muddahalli, but the said cheques were not returned to him,
even though on repayment of the amount and they have
cheated him. But such defence has no basis at all. In the
cross-examination, he has clearly admitted that the signatures
in Ex.P1 - Cheque and Ex.P4 - Postal Acknowledgment are his
signatures. Though, he has stated that he has given reply to
the notice sent by complainant, but in order to substantiate the
same, he has not produced any such notice copy or any
document. If at all he has not given any cheque in discharge
of the debt, if he has not received any amount, then he could
have given reply to the said notice which was duly served upon
him. The accused has also admitted that there were other
cheque bounce cases filed against him at Nanjungud Court.
That itself shows that he was in the habit of issuing cheques,
without any amount in his account. He has also admitted that
he has got the knowledge about the transaction of cheque. He
has not produced any legally admissible evidence in support of
his defence. If at all he has given two cheques to Basavanna of
Muddahalli, he should have examined him or he could have
taken action against the said person and also against the
complainant, if they have cheated the complainant, but he kept
quite and not given reply to legal notice - Ex.P3.
12. The learned Sessions Judge after considering the
evidence of both the parties, relied upon the principles stated
by the Hon'ble Supreme Court in a decision in the case of
Rangappa Vs. Mohan reported in AIR 2010 SC 1898
regarding presumption under Section 139 of N.I. Act. The
learned Sessions Judge has relied upon the said provision
which states that it shall be presumed, unless the contrary is
proved, that the holder of a cheque received the cheque of the
nature referred in Section 138 of N.I. Act, for the discharge, in
whole or in part, of any debt or other liability. Therefore, in
view of the principles stated in the above decision, if both oral
and documentary evidence adduced by the complainant are
considered, then it is evident that the complainant has
discharged the initial burden casted upon him. It is the settled
principles of law that the accused has to rebut the presumption
either by way of cross-examination of complainant and to show
before the court that the evidence of complainant is not
probable and cannot be believed. He can lead his defence
evidence and show before the court that the version of the
complainant is not true. But here if the evidence of accused
and his defence is considered, it is evident that it is only the
defence taken for the sake of defence and there is no truth in
it. But from the cross-examination of complainant shows, it
corroborates his case. On the other hand, the accused is
miserably failed to discharge his burden casted on him and
rebut the presumption under Section 139 of N.I. Act.
13. It is also evident that number of cheque bounce
cases are pending against this accused. Simply making some
suggestion will not help the accused. Because any amount of
suggestion which are denied by the complainant will not
amounts to either admission or contradictions. On the other
hand, the complainant has lead cogent and convincing
evidence. Apart from that there is a presumption under the
provisions of Sections 139 and 118 of N.I Act which is not
rebutted by the accused by adducing cogent and convincing
evidence. Therefore, both the courts have rightly held that
Ex.P1 - cheque was issued to the complainant by accused in
discharge of loan availed by him to the tune of Rs.1,50,000/-
and the said cheque was dishonored, therefore, the
complainant issued notice, the accused neither replied the
notice nor he has shown before the court that there is no
legally enforceable or recoverable debt or liability. Therefore,
both the courts have rightly come to the conclusion that
ingredients of Section 138 of N.I. Act are satisfied and rightly
convicted the accused. It is evident that the cheque amount is
Rs.1,50,000/- and first cheque is issued in the year 2009 and it
is stated that now accused has deposited 50% of the amount.
Therefore, considering the entire evidence, I find no ground to
interfere with the judgment passed by the learned Sessions
Judge, whereby, the judgment of conviction passed by the trial
court is confirmed and the appeal came to be dismissed.
14. I find no perversity or illegality in the judgment of
the learned Sessions Judge or judgment of the trial court. Both
the courts have rightly appreciated both oral and documentary
evidence in proper perspective by appreciating both law and
facts in accordance with appreciation of evidence under N.I.Act.
Hence, Revision petition being devoid of merit is liable to be
dismissed.
15. Accordingly, I pass the following:.
ORDER
(i) Criminal Revision Petition is dismissed.
(ii) No order as to costs.
(iii) Intimate the trial Court.
Sd/-
JUDGE
rsk/- & HJ
