Vijay S/O Gururaj Agadi vs Namdev H Chikkannavar
2022 Latest Caselaw 5253 Kant

                              1




              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 23RD DAY OF MARCH, 2022

                           BEFORE

              THE HON'BLE MR. JUSTICE P.N.DESAI

         CRIMINAL REVISION PETITION NO.100229/2015
       C/w CRIMINAL REVISION PETITION NO.100230/2015,
         CRIMINAL REVISION PETITION NO.100231/2015

PARTIES IN CRL. R. P.NO.100229/2015

BETWEEN:

VIJAY S/O GURURAJ AGADI
AGE: 39 YEARS, OCC: PRIVATE SERVICE
R/O: HIG 07, 101 AKSHAY PARK
GOKUL ROAD HUBBALLI, DIST: DHARWAD.

                                               ...PETITIONER.

(BY SHRI SRINIVAS B.NAIK, ADVOCATE)

AND:

NAMDEV H. CHIKKANNAVAR
AGE: 53 YEARS, OCC: BUSINESS,
R/O: HOSALLI BUILDING,
VIVEKANAND NAGAR, GADAG,
DIST: GADAG.
                                             ...RESPONDENT.
(BY SRI. R.H.ANGADI., ADVOCATE;
SRI.PRAVEEN P.JOSHI., ADVOCATE)

       THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 CR.P.C., PRAYING TO SET-ASIDE THE JUDGMENT AND ORDER
DATED 29/06/2015 PASSED IN CRIMINAL APPEAL NO. 13/2015 ON
THE FILE OF ADDL DISTRICT AND SESSIONS JUDGE, GADAG AND
TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 1/10/2014 PASSED IN CC NO. 404/2009 ON
                                2




THE FILE OF I ADDL CIVIL JUDGE AND JMFC-I FOR THE OFFENCES
PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS
ACT AND ACQUIT THE PETITIONER BY ALLOWING THIS REVISION
PETITION.



PARTIES IN CRL. R. P.NO.100230/2015

BETWEEN:

VIJAY S/O GURURAJ AGADI
AGE: 39 YEARS, OCC: PRIVATE SERVICE
R/O: HIG 07, 101 AKSHAY PARK
GOKUL ROAD, HUBBALLI
DIST: DHARWAD.
                                              ...PETITIONER.

(BY SHRI SRINIVAS B.NAIK, ADVOCATE)

AND:

NAMDEV H. CHIKKANNAVAR
AGE: 53 YEARS, OCC: BUSINESS
R/O: HOSALLI BUILDING
VIVEKANAND NAGARVGADAG
DIST: GADAG.
                                             ...RESPONDENT.
(BY SRI. R.H.ANGADI., ADVOCATE;
SRI.PRAVEEN P.JOSHI., ADVOCATE)

       THIS CRIMINAL REVISION PETITION IS FILED U/S 397 AND
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 29/06/2015 PASSED IN CRIMINAL APPEAL NO.
15/2015 ON THE FILE OF ADDL DISTRICT AND SESSIONS JUDGE,
GADAG AND TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 1/10/2014 PASSED IN CC
NO. 406/2009 ON THE FILE OF I ADDL CIVIL JUDGE AND JMFC-I,
GADAG FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF
NEGOTIABLE INSTRUMENTS ACT AND ACQUIT THE PETITIONER IN
THE INTEREST OF JUSTICE AND EQUITY.
                                3




PARTIES IN CRL. R. P.NO.100231/2015

BETWEEN:

VIJAY S/O GURURAJ AGADI
AGE: 39 YEARS, OCC: PRIVATE SERVICE
R/O: HIG 07, 101 AKSHAY PARK
GOKUL ROAD HUBBALLI,
DIST: DHARWAD.
                                              ...PETITIONER.

(BY SHRI SRINIVAS B.NAIK, ADVOCATE)

AND:

NAMDEV H. CHIKKANNAVAR
AGE: 53 YEARS, OCC: BUSINESS
R/O: HOSALLI BUILDING
VIVEKANAND NAGAR, GADAG
DIST: GADAG.
                                             ...RESPONDENT.
(BY SRI. R.H.ANGADI., ADVOCATE ;
SRI.PRAVEEN P.JOSHI., ADVOCATE)

       THIS CRIMINAL REVISION PETITION IS FILED U/S 397 AND
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 29/06/2015 PASSED IN CRIMINAL APPEAL NO.
14/2015 ON THE FILE OF ADDL DISTRICT AND SESSIONS JUDGE,
GADAG AND TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 1/10/2014 PASSED IN CC
NO. 405/2009 ON THE FILE OF I ADDL CIVIL JUDGE AND JMFC-I,
GADAG FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF
NEGOTIABLE INSTRUMENTS ACT AND ACQUIT THE PETITIONER IN
THE INTEREST OF JUSTICE AND EQUITY.

       THIS PETITION COMING ON FOR DICTATING ORDERS THIS
DAY, THE COURT PASSED THE FOLLOWING:
                                4




                            ORDER

These three criminal revision petitions are filed by

the petitioner, who was the accused before I Addl. Civil

Judge and JMFC-I., Gadag (hereinafter referred as 'trial

Court' for short), wherein the revision petitioner-accused

was convicted and imposed sentence by judgment

dated: 01.10.2014 in C.C.No.404/2009,

C.C.No.405/2009 and C.C.No.406/2009 for the offences

punishable under Section 138 of Negotiable Instrument

Act (for short 'N.I.Act'). The same was challenged by the

revision petitioner-accused before the Addl. District and

Sessions Judge, Gadag (hereinafter referred as 'first

appellate Court' for short). The first appellate Court by

common order dated 29.06.2015 in Criminal Appeal

No.13/2015, 14/2015 and 15/2015, dismissed the

appeals confirming the judgment of conviction and order

of sentence.

2. Aggrieved by the same, the revision

petitioner, who was accused had filed these three

revision petitions. Since, these three revision petitions

are arising out of a common judgment passed by the

first appellate Court. As both the parties i.e.,

complainant and accused are same in all the three cases

and date of judgment is also same. These three petitions

are taken together and disposed of. The petitioner will

be referred as accused and respondent will be referred

as complainant as per their respective rank before the

trial Court.

3. The complainant filed three separate

complaints before the trial Court alleging that the

complainant and accused are good friends. The accused

was a need of money for his business and also for his

family necessity. So, he requested the complainant to

pay hand loan of Rs.3,00,000/- for his family necessities.

Accepting his request, the complainant paid

Rs.3,00,000/-to the accused on 17.6.2007. But the

accused did not repay the said amount. The complainant

requested the accused to repay the amount. On

17.11.2008, the accused issued three cheques i.e., 2

cheque for Rs.1,00,000/- each and one cheque for

Rs.90,000/- drawn on I.C.I.C.I Bank Hubballi Branch.

Then on 26.11.2008 the complainant presented the said

three cheques for encashment before State Bank of

India of Gadag-Betageri but all the three cheques were

returned with a endorsement that there are 'Insufficient

Funds' in the account of accused. Therefore, the

complainant issued 3 notices in respect of each cheque

calling upon the accused to repay the amount and settle

the matter. Though the notice is served in all the three

cases, the accused neither replied the notice nor paid

the amount. Hence, complainant filed three separate

complaints before the trial Court. The trial Court

registered three separate cases. Thereafter, the

complainant got examined himself as PW1 and also

examined 2 more witnesses as PW.2 and PW.3 and got

marked 5 documents as per Ex.P1 to Ex.P5. Accused

though denied the incriminating evidence in the

statement recorded under Section 313 of Cr.P.C. but has

not led any defence evidence on his part. Then the trial

Court after hearing the arguments, convicted the

accused in C.C.No.404/2009 and sentenced to pay fine

of Rs.1,00,000/- and in default of payment of fine

amount, accused shall undergo simple imprisonment for

a period of one month and ordered Rs.90,000/- as a

compensation. Similarly in C.C.No.405/2009 and

C.C.No.406/2009, the accused was sentenced to pay

fine amount of Rs.1,10,000/- each, in default of

payment of fine amount, the accused shall undergo

simple imprisonment for a period of six months. Out of

fine amount, Rs.1,00,000/- each is ordered in each

cases as a compensation to the complainant and

Rs.10,000/- is treated as fine.

4. Aggrieved by the said judgments, the accused

preferred appeal before the first appellate Court, which

also came to be dismissed by confirming the judgments

of conviction and order of sentence. Assailing the same,

the accused-revision petitioner is before this Court by

filing these three petitions.

5. Heard Shri S.B.Naik., learned counsel for the

petitioner and Shri R.H.Angadi, learned counsel for the

respondent.

6. Learned counsel for the petitioner-accused

argued that the impugned judgment of conviction and

order of sentence passed by both the Courts are

contrary to law. The Courts have not believed the

defence taken by the accused and have come to a

erroneous finding. The complainant has not produced

any evidence or any document to show his status and

financial capacity for lending such a huge amount to the

petitioner. Though the complainant has admitted that he

has given Khagada Patra, but he has not produced the

same. Further, the complainant stated that at the time

of alleged transaction, he had collected amount from his

mother, sisters and friends. But said persons are not

examined to show that he had taken the amount from

them. Therefore, absolutely there is no evidence

regarding financial capacity of the complainant to pay

the loan to the accused. This aspect is not considered by

both the Courts.

7. It is further contended that there is no legally

recovery of debt from the accused-petitioner. The initial

burden to show the existence of recoverable debt is not

discharged by the complainant. Therefore, question of

raising presumption in his favour does not arise. The

accused-petitioner has rebutted the presumption and

disputed the case of complainant. The requirement

under Section 138 of N.I.Act is not proved. Learned

counsel argued that, as the complainant has failed to

prove the ingredients of Section 138 of N.I.Act,

conviction by the trial Courts, confirmation by the

appellate Court, are not in accordance with law and

needs to be set-aside.

8. Against this, the learned counsel for the

respondent argued that both the Courts have rightly

appreciated the evidence in a proper perspective and by

relying on the decision of the Supreme Court and

considering both oral and documentary evidence

produced by the accused-petitioner rightly came to the

conclusion that the complainant has proved that the

accused had borrowed loan and issued cheques and the

same were dishonored for insufficient funds. Even

though the legal notices are served, the same is not

replied by the accused. Further, the complainant has led

the evidence to prove the defence. Apart from that there

is a presumption in favour of complainant. The said

presumption is not rebutted either in the cross-

examination or by leading any defence evidence.

Therefore, learned counsel for the complainant-

respondent argued that absolutely there are no grounds

to interfere with the concurrent finding of both the

Courts, convicting the accused and sentencing him to

pay the fine and also compensation.

9. I have perused the revision petitions,

judgment of trial Court as well as first appellate Court

and evidence placed before the Court. The complainant

has filed his examination in chief, which is nothing but

reiteration of his written complaint averments. He has

produced Ex.P1-cheque, endorsement of the bank as per

Ex.P2, Notice copy as per Ex.P3, Postal receipt as per

Ex.P4 and Postal acknowledgment as per Ex.P5. So

these documents coupled with his oral evidence prima-

facie proved the compliance of ingredients of Section

138 of N.I.Act. In the cross-examination he has stated

that he is doing brick business and also site selling

business. He has also stated that he knew the accused

for last 15-16 years through one Laxman Meharwade. He

has stated that he did not possess entire Rs.3,00,000/-

but he has borrowed the amount from his father and

sisters. He cannot say how much amount is given by his

sister, mother and friends. He has also stated that in this

regard the accused had executed a document also. He

has not produced the same before the Court and

according to him there is no necessity for it. Further he

has stated that after issuing 3 cheques, the document

was taken back by accused. This evidence of

complainant is not denied in cross-examination. When

the statutory notice is served, the accused has not

issued any reply notice denying borrowing of the loan or

regarding financial capacity of complainant. He has not

led his defence evidence also. It is true that initial

burden of proving the fact that the accused has taken

hand-loan from complainant and he has not repaid it and

he is due to the amount is on the complainant. In

respect of the same liability, he has issued three

cheques. The complainant has to initially discharge his

burden to show that there is a debt and that debt is

legally recoverable and enforceable. For that, the

complainant has produced both oral and documentary

evidence. The accused can rebut the presumption in

favour of the complainant either by cross-examining or

by leading defence evidence before the trial Court and

show that the complainant has not discharged his initial

burden and his case is not probable. The accused can

show it by way of preponderance of probabilities. But

here there is no denial of financial capacity. How the

complainant has collected the said amount and given it

to the accused is stated by PW1. When the said aspect is

not denied, the question of complainant leading evidence

in respect of his financial capacity does not arise nor any

such contention is taken by issuing reply notice.

10. In this regard, the Hon'ble Supreme Court

considered the said aspect of effect of not setting up a

case regarding financial capacity of the complainant in

reply notice to the statutory notice sent and not taking

any such defence or not demonstrating by way of cross-

examination that the complainant does not have the

financial capacity, by producing independent materials or

by giving his evidence. Therefore, without their being

any denial or defence evidence such a contention is not

tenable. Of course, it all depends upon the nature of

evidence placed before the Court. The Court has to see

whether the accused has established a probable defence

in this regard.

11. The said decision of the Hon'ble Supreme

Court is in the case of Tedhi Singh vs Narayan Dass

Mahant (2022 LiveLaw (SC) 275)" and at para No.9

it is observed which reads as under ;

9. The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent

materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.

12. In the light of these principles stated in the

above decision, if the evidence on record is considered,

then it is evident that though the reply notice is served

by complainant in all the three cases, no reply was given

and no such defence is set up regarding financial

capacity to advance the loan by the complainant.

Simply, making some suggestions, which are denied by

PW1, will not help the accused-petitioner. The defence of

the accused-petitioner is that he has borrowed loan from

Laxman Meharwade and complainant has misused the

said cheques and filed this complaint. The said

suggestion is denied by him. It is also suggested that

after the said Meharwade died these cases are filed. No

such evidence is placed before this Court. No legal action

was taken either against the said Meharwade, when he

was alive. There are also no records when the said

Meharwade died. So, the defence of the accused is only

for the sake of defence and there is no truth in it.

13. Simply because, the complainant has stated

that there was document executed and he has not

produced that document, will have no effect on the

financial capacity of the complainant. Both the Courts

have referred to both oral and documentary evidence

and discussed in detail and appreciated the evidence in

proper perspective in a cases arising under Section 138

of N.I.Act, which are properly called as a cheque bounce

cases.

14. The trial Court has referred to the judgments

of Hon'ble Supreme court in the case of Kaushalyadevi

Massand Vs Roopkishore (2011 SAR (Criminal)

346) and in another case of R.Vijayn Vs Baby and

Another reported in 2011 SAR (Criminal) 903 and

convicted the accused and imposed proper sentence.

Both the Courts have properly discussed the object for

which the N.I.Act was inserted by amending the

Banking, Public Financial Institutions and Negotiable

Instrument Laws (Amendment) Act, 1988.

15. Keeping in mind the purpose of which the

said act is amended and under Section 138 of N.I.Act is

inserted have, rightly raised the presumption under

Section 118 of the N.I.Act and also under Section 139 of

N.I.Act. The same stands un-rebutted. Therefore, in

view of the discussion made above and also the

principles stated by the Hon'ble Supreme Court in the

above referred cases, if the impugned judgment of

conviction and order of sentence is considered, then I

find no illegality in the findings of both the Courts. On

the other hand, the reasons assigned by both the Courts

are correct and proper. They are not perverse. On the

other hand findings are based on settled principles

regarding appreciation of evidence in Section 138 of

N.I.Act cases. Absolutely, there are no grounds to

interfere with the judgments of both the Courts.

Accordingly, all the three revision petitions being devoid

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

proceed to pass the following;

ORDER

(i) The Criminal Revision Petition

No.100229/2015, Criminal Revision Petition

No.100230/2015 and Criminal Revision Petition

No.100231/2015, are hereby dismissed.

(ii) The judgment of conviction and order of

sentence dated:01.10.2014 passed in C.C.No.404/2009,

C.C.No.405/2009 and C.C.No.406/2009 by I Addl. Civil

Judge and JMFC-I., Gadag, which is confirmed by Addl.

District and Sessions Judge, Gadag in Criminal Appeal

No.13/2015, 14/2015 and 15/2015, dated 29.06.2015,

is hereby confirmed.

SD/-

JUDGE

am /-