Purushothama M vs H Rajappa
2022 Latest Caselaw 7345 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH DAY OF MAY 2022

                        BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

  CRIMINAL REVISION PETITION No.751 OF 2013

BETWEEN:

PURUSHOTHAMA M
S/O MARIYAPPA
AGED ABOUT 34 YEARS,
R/O RIGHT SIDE OF THE
MARIKOPPA ROAD,
DHURGI TEMPLE STREET,
HONNALI.
PIN:580 020.
                                           ....PETITIONER

(BY SRI PRASAD B.S.,ADVOCATE)

AND:

H RAJAPPA
S/O HANUMANTHAPPA,
AGED ABOUT 32 YEARS,
R/O HARONAHALLI VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT.
                                          ...RESPONDENT

BY SRI R. SRIKRISHNA, ADVOCATE)

     THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 25.07.2012
PASSED BY THE SR. C.J. AND J.M.F.C., CHANNAGIRI IN
C.C.NO.188/2011 CONFIRMING THE JUDGMENT AND ORDER
DATED 1.07.2013 PASSED BY THE HON'BLE PRL. DIST. AND
                                                     Crl.R.P.No.751/2013
                                 2


S.J., DAVANAGERE IN CRL.A.NO.93/2012 AND ACQUIT THE
PETITIONER OF THE CHARGED LEVELED AGAINST HIM.

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

                                 ORDER

The present petitioner was accused in C.C.No.188/2011,

in the Court of learned Senior Civil Judge and J.M.F.C.,

Channagiri (hereinafter for brevity referred to as `trial Court').

By its judgment dated 25.07.2012, the trial Court convicted the

accused for the offence punishable under Section 138 of

Negotiable Instruments Act, 1881 (hereinafter for brevity

referred to as `N.I.Act') and sentenced him accordingly.

2. Aggrieved by the same, the accused preferred a

Criminal Appeal in the Court of learned Principal District and

Sessions Judge, Davangere, (hereinafter for brevity referred to

as the `Sessions Judge's Court') in Criminal Appeal

No.93/2012.

3. The appeal was contested by the respondent who

was the complainant in the trial Court. The Sessions Judge's

Court by its order dated 01.07.2013, dismissed the appeal, Crl.R.P.No.751/2013

confirming the judgment of conviction and order on sentence

passed by the trial Court dated 25.07.2012, in

C.C.No.188/2011. Aggrieved by the said judgment, the accused

has preferred this revision petition.

4. The summary of the case of the complainant in the

trial Court is that the present petitioner who is the accused in

the criminal case was a person known to him and that for

domestic requirements and to purchase computer for his 'Net

and I Computer Centre', the accused borrowed a sum of `1 lakh

on 12.08.2010. As a security towards repayment of loan

amount, the accused had issued a cheque bearing No.187934

dated 10.10.2010, drawn on State Bank of Mysore, Honnali

Branch, in favour of the complainant for a sum of `1 lakh.

When the said cheque was presented for its realisation by the

complainant through his banker, the same came to be returned

dishonured with the Banker's endorsement "funds insufficient".

The complainant got issued a legal notice to the accused on

12.05.2011, however, the accused neither replied to the legal

notice nor paid the cheque amount to the complainant, which

constrained the complainant to file a criminal case against the Crl.R.P.No.751/2013

accused under Section 200 of Cr.P.C. in the trial Court for the

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

5. The accused appeared in the trial Court and

contested the matter through his counsel.

6. To prove his case, the complainant got examined

himself as PW.1 and got marked documents from Exs.P1 to

P10. From the accused side, accused got himself examined as

DW.1 and got marked documents from Exs.D1 to D6.

7. The trial Court after recording the evidence led

before it and hearing both side, by its impugned judgment

dated 25.07.2012, convicted the accused for the offence

punishable under Section 138 of the N.I. Act and sentenced him

to pay a fine of `4,000/-, in default, to undergo simple

imprisonment for a period of two months and to pay

`1,15,000/- to the complainant towards compensation.

Challenging the said judgment of conviction passed by the trial

Court, the accused preferred an appeal in Criminal Appeal

No.93/2012, before the learned Sessions Judge's Court, which,

after hearing both side, by its impugned judgment dated

01.07.2013, dismissed the appeal filed by the accused, while Crl.R.P.No.751/2013

confirming the impugned judgment of conviction and order on

sentence passed by the trial Court. Being aggrieved by the

judgments of conviction and order on sentence, the accused

has preferred this revision petition.

8. The trial Court and Sessions Judge's Court's records

were called for and the same are placed before this Court.

9. Heard the arguments from both side. Perused the

materials placed before this Court, including the trial Court and

Sessions Judge's Court's records.

10. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the trial

Court.

11. After hearing both side, the only point that arise for

my consideration in this revision petition is:

Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court?

12. Learned counsel for the petitioner in his argument

submitted that the complainant has utterly failed to prove the Crl.R.P.No.751/2013

alleged loan transaction between himself and the accused. He

has also utterly failed to prove that he was in financial capacity

to lend loan. Learned counsel further submits that the

complainant has not approached the Court with clean hands

since he has not revealed about the family relationship between

him and the accused. On the other hand, the accused not only

by leading evidence, but, also by producing the documentary

evidence has created a doubt in the case of the complainant's

alleged loan transaction. Thus, the accused has successfully

rebutted the presumption formed in favour of the complainant.

This aspect, both the trial Court and the Sessions Judge's Court

have not noticed but mechanically convicted the accused for the

alleged offence.

13. Per contra, the learned counsel for the respondent,

in his arguments submitted that the accused even after the

receipt of the legal notice did not reply to the same, as such,

he has admitted the loan transaction. Added to the same, he

has produced false documents at Exs.D1 to D6. After the

receipt of the legal notice, to countenance the claim of the

complainant, he further submitted that had really the cheque in

question was forcibly taken by the complainant from the Crl.R.P.No.751/2013

accused, the accused should have necessarily given stop

payment direction to the banker, which also he did not do.

Thus, the judgment under revision does not warrant any

interference at the hands of this Court.

14. The complainant as PW.1 in his evidence has

reiterated the contentions taken up by him in his complaint. He

has stated that the accused had borrowed a sum of `1 lakh

from him towards his computer centre and as a security he had

issued a cheque in question, which is at Ex.P2 for a sum of `1

lakh. Stating that the said cheque when presented for

realisation came to be dishonoured with the Banker's

endorsement as "funds insufficient", the complainant has

produced the counter foil of the challan and the Banker's

Memos which are at Exs.P3, 4 and 5. Stating that he got issued

a legal notice demanding payment of cheque amount from the

accused, the complainant has produced a copy of the legal

notice at Ex.P6. The postal acknowledgment card and the

postal receipt at Exs.P6(a) and P6(b) respectively. Stating that

his family owns agricultural land, he has produced a copy of the

genealogical tree and the RTC extracts at Exs.P7, P8 and P9

respectively. He has also produced a document appearing to be Crl.R.P.No.751/2013

a covering letter for the cheque authored by the accused and

got it marked as Ex.P10.

15. PW1 was subjected to a detailed cross-examination

wherein specific denial suggestions were made suggesting that

no transaction is alleged to have been taken place between the

parties. It was also attempted to elicit from the mouth of the

witness that neither PW1 nor his family members had sufficient

income to lend such a huge amount of `1 lakh of loan to the

accused. It was further elicited from PW1 in his cross-

examination that his sister was given in marriage to the elder

brother of the accused and that the said brother-in-law of the

complainant was found missing since about a year prior to the

alleged transaction. It was also attempted to show that apart

from being a dismissed Bill Collector in a Gram Panchayath, the

complainant was also related in a couple of criminal cases.

16. The accused himself got examined as DW1 wherein

he has reiterated the defence which he had taken in his written

statement and denied the suggestions made by PW1 in the

cross-examination and stated that no loan transaction, much

less, alleged loan transaction have taken place between himself Crl.R.P.No.751/2013

and the complainant. He has also stated that on 10.10.2010

the complainant joined by his fellow members of Dalit Sangha

Samithi had forcibly taken away the cheque in question from

the possession of the accused since on the said date they

ransacked the house of the accused. In support of his

contention, the accused also got produced and marked the copy

of the complaint to the police, tax invoice, copy of the charge

sheet and copy of the alleged petition in Criminal Miscellaneous

case and savings bank account extraction as Exs.D1 to D6.

Though the witness was subjected to a detailed cross-

examination, however, DW1 adhered to his original version

even in his cross-examination also.

17. The petitioner nowhere has denied that the cheque

in question was drawn by him and that the said cheque came to

be returned unpaid when presented for payment by the

complainant for the reason of insufficiency of funds. He has

also not denied that after the alleged dishonour of the cheque,

the complainant got issued a legal notice upon him demanding

payment of the cheque amount. In this regard, the accused

has made an admission in his cross-examination from the

complainant side. Thus, it stand established that the cheque in Crl.R.P.No.751/2013

question is drawn by the accused wherein the beneficiary is the

complainant and the said cheque came to be dishonoured when

it was presented for realisation for the reason of "insufficient

funds". It also stands established that after the dishonour of

the cheque, the complainant got issued a legal notice upon the

accused demanding from him the cheque amount. However,

the accused has not responded to the said notice. Thus, the

presumption forms in favour of the complainant under Section

139 of the Act about the existence of the legally enforceable

debt in favour of the complainant. However, the said

presumption is rebuttal.

18. In order to rebut the presumption formed in favour

of the complainant, the accused subjected the complainant for a

detailed cross-examination. In the said cross-examination

apart from making a specific suggestion to PW1 that he had no

financial capacity to lend a sum of `1 lakh as loan to him, the

accused has also elicited certain details as to the avocation of

the complainant and the property holdings by his family. The

summary of the response of PW.1 to those questions was that

the complainant is a dismissed Bill Collector in a Gram

Panchayat. Though the complainant claims that he is also doing Crl.R.P.No.751/2013

agriculture but even according to the complainant, it was his

grand father who owns 3 acres of land. However, his father

owns only three-fourth an acre of land. The RTC extracts

produced by the complainant himself at Exs.P8 and P9 also

mentions the same. Though the complainant stated that out of

the agriculture land he used to get annual income of `1.5 lakh,

however, admittedly no documentary evidence in that regard

was produced by the complainant. The accused has specifically

denied that the complainant had any such income as claimed by

him.

19. When PW1 was specifically asked in his cross-

examination from the accused side about the source of income

for lending alleged loan of ` 1 lakh, the complainant stated that

he had a sum of `50,000/- with him and remaining sum of

`50,000/- was collected by him from the neighbours.

However, for further question of the accused as to the details of

alleged lenders to the complainant, PW1 could not able to

mention the name of the alleged lenders much less the details

regarding the quantum of the loan formed by him to pool up the

fund. This prima facie creates a doubt in the contention of the Crl.R.P.No.751/2013

complainant that he had the capacity to lend such an amount to

the accused.

20. Secondly, though the complainant PW1 has stated

that in their land he used to raise crop of Ragi and Maize.

However, he could not produce any material in that regard

except the RTC extract. He has stated that he used to sell Ragi

to certain merchants by collecting money from them but he

could not even mention as to which merchant they used to sell

Ragi. On the other hand, he has stated that they have sold the

agricultural produce to some muslim merchants in Chennai. Had

really the complainant's family was raising such quantum of

crop and selling it to a particular merchant, then PW1 in his

cross-examination should have necessarily given details in that

regard. By stating that he does not know to which merchant

they were selling the agricultural produce, the complainant has

enabled the Court to have the doubt intensified regarding the

alleged loan transaction. Therefore, a mere possession of

cheque at Ex.P2 by the complainant though enables him to

have a presumption under Section 139 of the NI Act, but the

answers elicited in the cross-examination of PW1 and the

evidence of the accused as DW1, weakens such Crl.R.P.No.751/2013

presumption leading to rebuttal of the presumption formed in

favour of the complainant.

21. Added to the above, the evidence of DW1 places a

specific defence that the complainant being none other than his

brother-in-law had developed animosity, since accused's

brother who is the husband of the sister of the complainant had

found missing since more than a year and the complainant was

suspecting the accused and his family in that regard and also

had filed criminal cases against them. It is in that background

on 10.10.2010 the complainant, who is also an active member

in an organisation called Dalit Sangha Samithi with the aid of

fellow members trespassed into the house of the accused and

ransacked their house. He has also stated that since they could

not find any other valuables in their house but they could only

notice the blank cheque of the complainant, by tying the

complainant, forcibly got signed the cheque in its blank form

and subsequently filled the contents therein.

      Though     the    statements     made      by      DW1      in

examination-in-chief was denied by the complainant's side         in

his cross-examination, but the accused has produced the copy

of the alleged complaint lodged with the Superintendent of Crl.R.P.No.751/2013

Police, Davanagere at Ex.P1. Stating that the charge sheet has

also came to be filed in a criminal case, he has produced a copy

of the same at Ex.D3. This aspect, particularly, the defence

taken by the accused that the cheque in question was forcibly

taken from the possession of the accused by using criminal

force and the accused lodged a police complaint in that regard,

further strengthens doubt with respect to the alleged loan

transaction which was canvassed by the complainant in his

complaint. No doubt, after the alleged forcible taking away of

the cheque by the complainant, no steps were taken by the

accused to ensure the stopping of payment by instructing the

Bankers to stop the payment but that itself would not take

away the doubt created in the alleged loan transaction which

was canvassed by the complainant. Thus, the presumption

which was formed in favour of the complainant under Section

139 of the N.I. Act stands successfully rebutted by the accused

by creating serious doubt in the contention of the complainant

about the alleged transaction. In such a situation, it was for the

complainant to establish the alleged loan transaction, since the

presumption formed in his favour has stood rebutted. However,

the complainant, except his oral evidence which also was Crl.R.P.No.751/2013

denied by the accused, could not be able to produce any

material in his support. However, both the trial Court as well

as the Sessions Judge's Court did not notice this aspect, in

their reasoning of their judgments they embraced the cheque

in question as the proof of the alleged loan transaction and the

admission by the accused that the legal notice was sent to him

and straightaway proceeded to hold that the complainant has

proved the guilt of the accused beyond reasonable doubt. The

said error committed by both the Courts below in not appreciating

the evidence placed before them in their proper perspective has

resulted in conviction of the accused for the alleged offence and

further confirmation by the first appellate court.

Since the finding of both the Courts below is now proved to

be perverse and unfounded one, the interference by this Court in

the impugned judgments are warranted and thus judgments under

revision deserve to be set aside.

22. Accordingly, I proceed to pass the following order:

ORDER

The Criminal Revision Petition stands allowed. The

judgment of conviction and order on sentence passed by the trial

Court dated 25.07.2012, in C.C.No.188/2011 and the Crl.R.P.No.751/2013

Judgment dated 01.07.2013 passed by the Session Judge's

Court in Crl.A.No.93/2012 stands set aside.

Accused-Purushothama M. son of Mariyappa residing at

Right Side of the Marikoppa Road, Dhurgi Temple Street,

Honnali, stands acquitted from the offence punishable under

Section 138 of the N.I. Act.

Registry to transmit a copy of this order each to the trial

Court as also to the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

TL