Ashok Ramachandra Banavalikar vs Jagadish Linga Gaonkar
2022 Latest Caselaw 4081 Kant

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          IN THE HIGH COU RT OF KARNAT AKA
                  DHARWAD B ENCH

       DATED THIS THE 10 T H DAY OF MARCH, 2022

                        BEFORE

         THE HON'B LE MR. JU ST ICE P.N.DESAI

              CRL.RP.NO.100124 OF 2021

BETWEEN

ASHOK RAMACHANDRA BANAVALIKAR
AGED AB OU T 54 YEARS,
OCC FISHERMAN,
R/O BELAKERI ALIAS BELEKERI,
TQ ANKOLA, DIST KARWAR-581321.
                                           ...PETITIONER
(B Y SRI.SANTOSH B MANE, ADV.)

AN D

JAGADISH LIN GA GAONKAR
AGED AB OU T 46 YEARS,
OCC:B USINESS,
R/O KHB COLONY, SIRS I,
TQ SIRS I, DIST:K ARWAR-581401.
                                          ...RESPONDENT
(SRI.JAGADISH L. GAONKAR- SERVED ,
 U NREPRESENTED.)

      THIS CRIM INAL R EVIS ION PET IT ION IS F ILED U/S
397(1) R/W 401 OF CR.P.C., SEEKING TO CALL FOR T HE
LOWER COURTS RECORDS,PERU SE THE SAME AND SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTIO N
DATED.23.03.2021 PASSED B Y THE I ADDL. DISTRICT
AND SESSIONS JU DGE, U K KARWAR SITTING AT S IRSI IN
CRL APPEAL NO. 5022/2019 WHERE BY CONFIRMING THE
JUDGMENT     AND    ORDER     OF  CONVICTION       DA TED
28. 06.2 019 PASS ED B Y THE I ADDL. JMFC SIRSI IN
C.C.NO.789/ 20 12 FOR THE O/P/U/ SEC 138 OF N.I.ACT.


     THIS PET IT ION COMING ON FOR ARGUMENTS THIS
DAY, T HE COU RT MADE THE FOLLOWING:
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                             ORDER

This revision petition is filed aggrieved by the

judgment dated 23.03.2021 passed by the I Additional

District and Sessions Judge, UK., Karwar sitting at Sirsi,

in Crl.A.No.5022/2019, whereby judgment and order of

conviction dated 28.06.2019 passed by the I Addl. JMFC,

Sirsi in C.C.No.789/2012 for the offence punishable

under Section 138 of Negotiable Instruments Act, 1881

(herein after for short 'NI Act') is confirmed.

2. The revision petitioner was the accused before the

trial Court and the respondent was the complainant

before the trial Court. They will be referred as

complainant and accused as per the respective ranks

before the trial Court for convenience in this petition.

3. The brief case of the complainant is that the

accused requested complainant hand loan of

Rs.2,00,000/- for his urgent need. Accordingly, he

received hand loan on 20.08.2011 and promised to

repay the same within six months. Thereafter, the

complainant requested him to repay the amount number

of times. Then the accused issued cheque of Syndicate

Bank bearing No.807648 for a sum of Rs.1,85,000/-

drawn on Syndicate Bank, Belekeri, Branch as a part

payment and informed the complainant to produce and

collect the amount from bank. Accordingly, complainant

presented the cheque to Bank. The same was returned

with an endorsement"Payment was stopped by the

drawer". Then, the complainant issued statutory legal

notice on 15.06.2012 to accused. Accused gave a false

reply and not paid the amount. Hence, complainant filed

complaint under Section 138 of NI Act, before the

Magistrate to take action in accordance with law.

4. Thereafter, the complainant got himself examined

as PW.1 and got marked 8 documents as EX.P1 to P8.

Respondent-accused got himself examined as DW1 and

but no documents were marked. After hearing the

arguments, the learned JMFC., convicted the accused

and sentenced to pay Rs.1,90,000/- and out of fine

amount, a sum of Rs.1,85,000/- is ordered to be paid to

complainant as compensation and Rs.5,000/- is ordered

to be remitted to the State. Aggrieved by the same,

accused preferred an appeal before the District and

Sessions Court, Uttara Kannada, Karwar sitting at Sirsi

in Crl.A.No.5022/2019, which came to be dismissed on

23.03.2021, aggrieved by the same this revision petition

is filed.

5. Heard the leaned counsel for petitioner Sri.Santosh

B.Mane. Respondent though served unrepresented.

6. Sri.Santosh B.Mane, learned counsel for petitioner

argued that petitioner has not complied the necessary

ingredients for discharge of legally recoverable debt.

Under such circumstances, petition itself is not

maintainable. In this regard, he relied on the decision of

co-ordinate bench of this Court in Crl.P.No.1387/2011

dated 06.07.2018 in the case of R.Parimala Bai Vs.

Bhaskar Narasimhaiah.

7. The learned counsel for petitioner further argued

that the complainant has failed to prove his financial

capacity to lend Rs.2,00,000/-, as complainant has no

sources of income. Therefore, court has erred in

convicting the accused. The learned counsel argued that

both the Courts have not appreciated the evidence in a

proper perspective. The Courts have failed to consider

Ex.P8-Pronote which speaks about 18% interest on the

amount advanced as a loan. The learned counsel argued

that it was a money lending business without any license

which is not permissible in the eye of law and it is a

illegal transaction. Both courts have failed to take note

of it and wrongly raised the presumption arising under

Section 18 of the NI Act. There is a difference between

provisions of Negotiable Instruments Act and Money

Lenders act which both the Courts have failed to take

notice. Learned counsel also argued that the judgment

of both the courts have resulted in miscarriage of justice

and needs interference by this Court. With the above

main reason prays to allow the revision petition.

8. Revision petitioner though served, unrepresented.

9. I have perused the appeal memo, judgment of the

trial Court and Sessions Court and the records of case

and evidence.

10. From the above, material points that arise for my

consideration is:-

"whether the order passed by the learned Sessions

Judge under Section 227 of Cr.P.C. is legally correct or

needs any interference by this Court?"

11. The trial Court in its judgment has narrated about

the contents of the complaint and referred to the

documents. Ex.P1 is cheque which shows that said

cheque was issued in favour of complainant for

Rs.1,85,000/-. Ex.P2 Urban bank memo, Ex.P3

indicates that cheque was dishonoured, Ex.P.4 is a

statutory legal notice calling upon the complainant to

pay the amount mentioned in the cheque. Ex.P5 and P6

are postal receipts and acknowledge and Ex.P7 is a reply

given by the accused. Ex.P8 is a on demand promissory

note. On perusing the documents produced by the

petitioner, the Court has taken the cognizance and

proceeded against the respondent. Petitioner has filed

his examination in chief evidence as PW1 which is

nothing but reiteration of contents of written complaint

averments and stated about documents produced by

him. In the cross examination, the complainant has

stated that he knew the accused since 15 years through

his brother. PW1 has not stated what is the

denomination of each note and what time cheque issued.

Since evidence is recorded in the year 2018 i.e. nearly

after lapse of 7 years the PW1 is not expected to say

minute details of transactions so that is not a material

one. Further, in the cross examination, it is stated that

he was working as a electrical contractor. He has got

Diploma certificate. He has also stated that he will get

Rs. 2 to 2 ½ lakhs income per year. He has admitted

that he has not filed any incometax returns. It is also

stated that he has borrowed amount from his sister and

her husband and along with his amount he has given the

cheque amount to accused, as accused stated that he

was in urgent need of money. He has stated that he has

no documents to show that he has borrowed amount.

This suggestion of the cross examination shows that the

accused has not denied that petitioner is doing electrical

contract work. It is also not denied that he had income

of. Rs2 to 2 ½ lakhs income per year and kept the

money. It is also not denied that he has borrowed some

amount from his sister and her husband. So Except

some suggestion which are all denied, there is nothing in

the cross examination. It appears that subsequently,

again PW.1 was recalled for cross examination by

accused side stating that accused has lost three cheques

at Ankola Bus stand. Complainant's brother has taken

those cheques and got filed case against him which is

denied by him. It is suggested that taking undue

advantage of blank signed cheque by the accused this

false case has been filed, same is also denied.

Complainant in his cross examination stated that the

accused gave the cheque for Rs.1,85,000/- and has paid

only Rs.15,000/- out of total Rs.2,00,000/-.

12. On perusing the averments made in the complaint

coupled with the documentary evidence produced before

the Court, it is evident that petitioner has discharged

burden of proving his case. The accused has admitted

that cheque belong to his account and also admitted his

signature on it. In view of the evidence led before the

Court, the presumption under Section 139 of Act and

Section 118 of NI act arise in favour of complainant. The

accused can rebut that presumption by two ways. i.e.

1) By cross examining the complainant and placing material before the Court to show that the case pleaded by the complainant is not true and not probable. This he can show by preponderance of probability also.

2) Lead his defence evidence.

13. In this case, the accused has lead evidence as

DW1. In his examination in chief, it is stated that a false

case has been filed against him. The contentions of the

petitioner in this regard are all false as some of his

cheques were missing and he has intimated the Bank to

stop the payment and the signature on the demand note

is not of his signature. This is in examination in chief. He

never stated that, he does not know this complainant or

his brother. He does not say that complainant has no

financial capacity, he does not say that how the cheque

was mis-used.

14. On the other hand, he has admitted in the cross

examination that signature on Ex.P1 is his signature.

His defence is contrary to his reply notice, wherein he

has stated that he has lost his cheque book. But,

suggestion is that he has lost his three cheques and out

of that one cheque is misused by complainant. This

stand itself is different. The accused has not produced

any documents before the Court to show that he has

informed the Bank that he lost the cheques or cheque

book, he has not examined the Manager also but simply

state that he has informed the bank to stop the payment

will not help the accused-petitioner. Even he has not

stated that on which date he has given intimation to

bank. According to him, neither he mentioned the date

nor that he has given any intimation to bank to stop

payment he has not lodged any complaint to the court or

to the Police in this regard, even he has not mentioned

which number cheques are lost. So this defence appears

to be only for defence sake and there is no merit in it.

On the other hand, it is evident that both petitioner and

respondent were business persons. There is nothing in

defence evidence to show that the complainant case is

not true. The defence evidence will not help the accused

in any way.

15. It is evident that Ex.P.1 cheque is admittedly

belongs to the account of accused. The signature on

cheque is also admitted by the accused. The complainant

has issued statutory notice which is served on the

accused and accused has given reply. Under section 118

and 139 of the Negotiable Instruments Act, 1881, there

is a presumption in favour of holder of the cheque. In

this regard the Hon'ble Supreme Court in the case of

Rangappa vs. Sri Mohan, reported in (2010) 11 SCC

441 has laid down the principles, which is referred

subsequently in number of decisions. The Hon'ble

Supreme Court in a decision reported in (2002) 1 SCC

234 in the case of MMTC Limited and another vs.

MEDCHL Chemicals and Pharma (P) Ltd. and

another, held that once the accused admitted his

signature on Ex.P.1, it is for the accused to rebut the

presumption available under Section 139 of the

Negotiable Instruments Act, 1881. In this regard in the

decision in Dhakshayani vs. Malathi Dayan, reported

in 2012 (5) Kar.L.J. 165, this Hon'ble Court has stated

as under:

Questioning an order of conviction and the consequential sentence imposed by the learned Magistrate for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') and having failed in Cri. A. No. 25124 of 2010, on the file of the Sessions Court at Bangalore, accused has filed this criminal revision petition.

2. Sri Hiremathad, learned Advocate appearing for the petitioner contended that the petitioner has been convicted for an offence under Section 138 of the Act, when the ingredients necessarily to be established have not been established by the respondent-complainant. Learned Counsel submitted that the defence of the accused has not been correctly appreciated and hence, impugned judgments being perverse, interference in the matter is necessary.

3. Sri M.D. Raghunath, learned Advocate appearing for the respondent, on the other hand, contended that the issuance of Ex.P.1 being not in dispute and that the same having been returned by the bank, whereafter a demand was made and the payment having not been made, complaint was filed and the offence committed by the accused having been established by the evidence of P.W.1, and on the basis of Exs. P.1 to P.17, learned Magistrate is justified in finding the accused guilty and in imposing the sentence. Learned Counsel submitted that the Appellate Court has re-appreciated the evidence and the appeal having been found to be devoid of merit, was dismissed. Learned Counsel submits that in view of the concurrent finding of fact by the Courts below, no interference in the matter is called for.

4. Perused the record. In view of the rival contentions, point for consideration is, whether the Courts below are justified in holding the petitioner guilty of an offence under Section 138 of the Act?

5. Petitioner does not dispute the fact of she having entered into an agreement of sale dated 5-9-2007 with the respondent vide Ex.P.1. The sale transaction did not materialize. Hence she issued the cheques Exs.P.6 to P.9 towards refund of the advance sale consideration amount received pursuant to Ex. P.1. Said cheques when presented, were returned vide Exs.P.10 to P.13.

Immediately, upon return of the cheques at Exs. P.6 to P.9, demand notice vide Ex.P.14 was sent, to which there is a reply as per Ex.P.17. It can be seen from Ex. P.17, that the petitioner sought time to pay the amount payable under the cheques i.e., Exs. P.6 to P.9. Since the amount was not paid, complaint under Section 200 of the Criminal Procedure Code. 1973 for the offence under Section 138 read with Section 142 of the Act was filed.

6. Complainant deposed as P.W.1.

Nothing material has been elicited in the evidence of P.W.1 to hold that the claim made by her based on Exs. P.6 to P.9, P.10 to P.13 and P.14 is not tenable. In a complaint under Section 200 of Cr.P.C. for the offence under Section 139 of the Act, the Court has to presume that the cheque has been issued for a debt or liability. Accused was examined under Section 313 of Cr. P.C. and it is a case of denial. Though the accused deposed later as D.W.1 and marked Exs. D.1 and D.4, the defence being not probable and inconsistent with the stand taken in Ex. P.17, the presumption having not been rebutted, learned Magistrate is justified in recording the finding of guilt of the accused under Section 138 of the Act.

7. There is neither any perversity nor illegality committed by the Courts below in the matter of appreciation of evidence. The ingredients to punish the accused for the offence under Section 138 of the Act has been made out. Hence, the petition is devoid of merit.

16. The above said principles are reiterated by Hon'ble

Supreme Court in subsequent judgments wherein,

keeping in mind the amendment brought to the

Negotiable Instruments Act and keeping in mind, the

transaction by cheque, the Courts have enunciated

certain principles. In this case, cheque is admitted by

the accused, he admits his signature on it, there is

nothing in the cross examination of PW1 which can show

that the case of the complainant is neither not probable

or cannot be accepted. On the other hand, complainant

has discharged the burden on him the presumption

arising under said Negotiable Instrument Act is in his

favour. In criminal petition Crl.P.No.1387/2011 dated

06.07.2018 relied on by counsel is under Section 23 of

the Indian Contract Act wherein, the facts of that case

and evidence are not helpful to the petitioner in this

case. The petitioner/accused had failed to discharge

burden shifted upon him. This defence is not acceptable.

17. Therefore, viewed from any angle, if the entire

materials are considered, then in my considered view,

the judgment passed by the trial Court which was

confirmed by appellate Court cannot be said as either

illegal or erroneous. Both the courts have considered the

provisions of laws and also the presumption under

Section 139 of the NI Act properly. The accused has

failed to rebut such presumption.

18. I find no perversity or illegality in the judgments

passed by both the Courts. Hence, petition being devoid

of merits and liable to be dismissed. Accordingly, I pass

the following:

ORDER

Petition is hereby dismissed.

Judgment dated 23.03.2021 passed by

the learned I Addl. District and Sessions

Judge, Uttara Kannada, Karwar sitting at Sirsi,

in Crl.A.No.5022/2019 whereby confirming

the judgment of conviction and order of

sentence dated 28.06.2019 passed by the

learned I Addl. JMFC, Sirsi in CC No.789/2012

for the offence punishable under Section 138

of Negotiable Instruments Act is hereby

confirmed.

Sent back the trial Court records.

The amount in deposit be transmitted to

the trial Court for withdrawal by the

complainant after proper identification and

verification.

Sd/-

JUDGE

Hmb/-