Mr. K. Prabhakar vs Mr. A.C.N Murthy
2022 Latest Caselaw 7571 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF MAY 2022

                           BEFORE

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

   CRIMINAL REVISION PETITION No.647 OF 2011

BETWEEN:

MR. K.PRABHAKAR
SON OF LATE VASUDEVA RAO
AGED ABOUT 42 YEARS
NO.820, 6TH CROSS
CHAMUNDESHWARI NAGAR
MATHRUSHREE SCHOOL
LAGGERE,
BANGALORE-560 078.
                                                  ...PETITIONER

AND:

MR.A.C.N.MURTHY
SON OF MUNIYAPPA
AGED 66 YEARS
NO.365, MADHURANAGAR
7TH CROSS,
RAJAGOPALANAGAR
II STAGE, BANGALORE-58
                                                 ...RESPONDENT

      This Criminal Revision Petition is filed under Sections 397
and 401 Cr.P.C. praying to set aside the judgment of conviction
passed in CC No.10667/2008 dated 04.11.2010 on the file of
the XII ACMM, Bangalore, which came to be confirmed by the
learned Judge, Fast Track Court No.16, Bangalore City on
18.04.2011 in Crl.A.No.842/2010.
                                                       Crl.R.P.No.647/2011
                                   2


      This Criminal Revision Petition is coming on for reporting
settlement through Physical Hearing/Video Conferencing
Hearing, this day the Court made the following:


                             ORDER

The present petitioner was accused in

C.C.No.10667/2008, in the Court of the learned XII Addl. Chief

Metropolitan Magistrate, Bangalore City, (hereinafter for brevity

referred to as the "trial Court"). By its judgment dated

04.11.2010, 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 accordingly.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the Presiding Officer, Fast Track Court-

XVI, Bangalore City, (hereinafter for brevity referred to as the

`Sessions Judge's Court') in Criminal Appeal No.842/2010.

The Sessions Judge's Court by its order dated

18.04.2011, dismissed the appeal, confirming the judgment of

conviction and order on sentence passed by the trial Court

dated 04.11.2010, in C.C.No.10667/2008. Aggrieved by the

said judgment, the accused has preferred this revision petition.

Crl.R.P.No.647/2011

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

trial Court is that the accused was acquainted to him and at the

request of the accused for a hand loan of a sum of `75,000/- on

15.09.2007, he lent a sum of `75,000/- in cash to the accused.

Though the accused had agreed to return the said amount

within three months, thereafter, he did not repay the loan

amount. However, on demand made by the complainant for

repayment of the loan, the accused issued a cheque to him for a

sum of ` 75,000/- bearing No. 295536 dated 28.02.2008 drawn

on Sir M.Visveswaraiah Co-operative Bank Ltd., Rajajinagar

Branch, Bangalore, in favour of the complainant. When the

said cheque was presented for realization by the complainant, it

came to be returned unpaid with the Banker's endorsement as

"insufficient funds". Immediately, thereafter, the complainant

got issued a legal notice on 11.03.2008 demanding repayment

of the cheque amount both by Registered Post Acknowledgment

Due (RPAD) and under Certificate of Posting. Though the notice

sent under RPAD returned unserved with a shara 'absent',

thereafter, notice was served under Certificate of Posting. In

spite of receipt of the notice, the accused since did not repay

the loan amount to the complainant, the complainant was Crl.R.P.No.647/2011

constrained to file a criminal case against him in the trial Court

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

3. Since the accused pleaded not guilty, charges were

framed against the accused for the alleged offence.

4. The complainant in order to prove his case, got

examined as PW1 and got marked 07 documents- Exs.P1 to P7.

The accused got himself examined as DW1 and got marked 2

documents-Exs.D1 and D2.

5. After hearing both side, the trial Court by its

impugned judgment dated 04.11.2010, convicted the accused

for the offence punishable under Section 138 of N.I.Act and

sentenced him accordingly.

6. Challenging the said order, the accused preferred an

appeal in Criminal Appeal No.842/2010, before the Court of the

Presiding Officer, FTC XVI, Bangalore City, (hereinafter for

brevity referred to as `Sessions Judge's Court), which by its

judgment dated 18.04.2011, dismissed the appeal by

confirming the judgment of conviction and sentence passed by Crl.R.P.No.647/2011

the trial Court. It is against these judgments of conviction, the

accused has preferred this revision petition.

7. The respondent is being represented by his learned

counsel.

8. Though the matter is listed for admission, however,

with the consent from both parties, the matter is taken up for

its final disposal.

9. Heard the arguments from both side. Perused the

materials placed before this Court.

10. The only point that arises for my consideration is,-

"Whether the impugned judgments suffer from perversity, illegality, impropriety warranting any interference at the hands of this Court".

11. The learned counsel for the petitioner, in his

brief arguments submitted that, though the accused does

not deny or dispute that the cheque in question, which is

at Ex.P1 was drawn by the accused and the same got

dishonoured when presented for realisation with the

Banker's endorsement "funds insufficient" and also that Crl.R.P.No.647/2011

the complainant thereafter had issued legal notice to the

accused demanding payment of cheque amount, but the

accused denies of the alleged loan transaction to the

complainant. It is the specific case of the accused that

the cheque was given to one Venkataswamy, a friend of

the accused in connection with the immovable property

transaction. The said Venkataswamy instead of returning

the said cheque to the accused, after the accomplishment

of the purpose, has misused the same by getting

presented through the complainant and filing a false

complaint. He, further, submitted that had really the

complainant lent a sum of `75,000/-, he should have

secured some documents with respect to the loan

transaction. Thus, the very loan transaction between the

parties, is a doubtful one.

12. Per contra, learned counsel for the respondent,

in his single sentence arguments submitted that, since

both the Courts below have given a concurrent finding

holding that the accused is found guilty of the offence and

there being no element of perversity or illegality in the Crl.R.P.No.647/2011

impugned judgments, the revision petition deserves to be

dismissed.

13. The complainant-A.S.Murali, who got himself

examined as PW1, in his affidavit evidence in the form of

examination-in-chief has reiterated the contentions taken

up by him in his complaint. In support of his contention,

he has produced an unpaid / return cheque said to have

been drawn by the accused at Ex.P1. He identified the

signature of the accused as a drawer of the cheque at

Ex.P1(a). He has produced banker's endorsement

regarding dishonour of cheque at Ex.P2. Unserved, but

returned with registered postal cover said to have been

containing legal notice has been produced at Ex.P4 and

P4(a) respectively. The postal receipt and the postal

acknowledgment covers are produced at Exs.P3 and P4(b)

respectively. Certificate of posting is produced at Ex.P5,

Banker's Memo is produced at Ex.P6 and the complainant

also got marked his complaint at Ex.P7.

14. The accused also got himself examined as

DW1, who in his examination-in-chief has stated that the

complainant was a stranger to him and that no point of Crl.R.P.No.647/2011

time there was any loan transaction took between them.

He has taken a specific contention that the cheque was

given to one of his friend Venkataswamy in connection of

purchase of immovable property, in the name of

(accused's wife Mrs. Suma). Though the said loan

transaction could not be materialised, the said

Venkataswamy instead of returning two cheques given to

him to the accused, got one of them presented through

the complainant and thus, he misused the said cheque,

which is at Ex.P1. He, further, contended that he had sent

a reply to the notice that was sent by the complainant side

after the dishonour of the cheque. He also attempted to

produce photocopies of the alleged agreement said to have

been entered into between his wife Suma and the vendor

of the land. However, the complainant's side had taken

serious objection for marking the said document. Keeping

open the objection, the trial Court proceeded to mark the

document as Ex.D2.

15. The complainant's contention is that Cheque at

Ex.P1 was drawn by the accused and the same when

presented for realisation came to be returned unpaid for Crl.R.P.No.647/2011

the reason of "insufficiency of funds" has been

corroborated by the original cheque at Ex.P1 and the

Banker's returned cheque and memo at Exs.P2 and P6.

The signature of the drawer of the instrument at Ex.P1(a)

is also marked by the complainant, which alleged facts

have not been denied or disputed by the accused side.

Thus, it stands established that Cheque at Ex.P1 was

drawn by the accused and that it was in the name of the

complainant. As such, when the said cheque was

presented for realisation, the same came to be

dishonoured for the reason of insufficiency of funds.

Similarly, the evidence of PW1 that after return of

the cheque with the banker's endorsement, he got issued

a legal notice to the accused through his counsel, a copy of

which is at Ex.P4 also has not been denied by the accused.

Per contra, the accused himself has stated that he

has sent a reply to the said notice though PW1 has

specifically denied that no reply was sent to him by the

accused. But, the fact remains that the accused has not Crl.R.P.No.647/2011

denied the receipt of the legal notice by him which was

sent on behalf of the complainant. Thus, the service of

legal notice upon the accused also stands established.

Admittedly, the accused has not acceded to the demand

made in the legal notice. As such, there forms a

presumption under Section 139 of the N.I.Act in favour of

the complainant about the existence of the legally

enforceable debt. However, the said presumption is

rebuttal.

16. For rebuttal of the said presumption, only

defence taken up by the accused was that the cheque in

question was given by him to one Venkatswamy, who

according to the accused, was a common friend of both the

complainant and himself, in connection with the loan

transaction. However, the said Venkataswamy has

misused the said cheque. The said contention though was

placed before the trial Court by the accused, in the form

of suggestions made to PW1 in his cross-examination as

well as in the examination-in-chief, led by himself as DW1,

but, the complainant has denied the suggestions made to

him in that regard as well as made several denial Crl.R.P.No.647/2011

suggestions to DW1 in his cross-examination. PW1, has

categorically stated that he does not know Venkataswamy,

who was alleged to be a common friend of both accused

and himself. He has specifically denied that cheque in

question was given by accused to said Venkataswamy and

in turn, the said Venkataswamy had made the complainant

to make use of the cheque in presenting in his name. In

such a circumstance, a mere suggestion was made to the

complainant in his cross-examination on entering into the

witness box and in his oral submission, which subsequently

was denied in his cross-examination, would not suffice to

hold that the defence taken by the accused is more nearer

to the truth or probability making it sufficient to rebut the

presumption that is formed in favour of the complainant.

In such a circumstance, when it is a specific case of the

accused that Venkataswamy was a friend of him and doing

a business with him, then nothing had prevented the

accused to summon him to the witness box and examine

him and elicit the details from him. No attempt has been

made by the accused, in that regard, for the reasons

best known to him. Had really the said Crl.R.P.No.647/2011

Venkataswamy being a good friend of the accused to

whom the said cheque was issued, then nothing had

prevented the accused to summon him and to elicit the

alleged truth.

Added to the above, the accused, admittedly, has not

taken any steps in getting the said cheque back from the said

Venkataswamy in a manner known to law. He has not

placed any evidence either oral or documentary to show

that he had made demand to Ventaswamy to return the said

cheque by sending legal notice to him or by lodging a police

complaint against him. Thus, in the absence of any evidence

in that regard, a mere self serving statement by the

accused that the cheque was given to Venkataswamy by him

but not to the complainant, does not inspire confidence to

believe the said defence. In that regard, even the alleged

document at Ex.D2 also would not come to the support of

the accused.

      Admittedly, Ex.D2     has     not     been     admitted     in

evidence since     there   was    an objection     raised   by   the

complainant in      the trial Court for      marking the said

document.        However, for the purpose of identification,

the said     document        was          marked      as     Ex.D2
                                                  Crl.R.P.No.647/2011



keeping open the objections raised by the complainant.      In

that direction, without taking any steps in meeting out the

objections raised by the complainant, merely getting a

document marked as an exhibit for identification purpose

would not be considered as admission of documentary

evidence by the trial Court.

Secondly, assuming that Ex.D2 is a document, which can

be considered for the limited purpose of appraising the alleged

defence taken up by the accused, still a perusal of the

documents would go to show that the said document has not

been entered into by the accused either with Venkataswamy or

with any other person. the said document, which is in the form

of agreement, for purchase of immovable property is shown to

have been executed by between one Suma and Chowdamma.

Merely because the said Suma is stated to be the wife of the

accused as per the self serving statement, still, nowhere it has

mentioned that the cheque in question was given to the said

Venkataswamy, which was alleged by the accused in his

evidence. Therefore, production of Ex.D2, in no manner help

the accused in rebutting the presumption Crl.R.P.No.647/2011

formed in favour of the complainant under Section 139 of the

N.I. Act.

17. In the above circumstance, when the complainant

has categorically stated that he was in acquaintance with the

accused since a long time and he was his close friend, as such,

he has lent a sum of `75,000/- as loan to him and obtained a

cheque towards the repayment of the said loan amount, the

mere non-possession of any other documentary evidence in

support of the alleged loan transaction would not by itself take

away the case of the complainant when he has denied

presumption under Section 139 of N.I. Act. On appreciating

these facts, both the trial Court as well as the Sessions Judge's

Court have concurrently held that the complainant has proved

the alleged guilt against the accused beyond reasonable doubt.

I do not find any illegality, perversity or irregularity warranting

interference in the judgment of conviction.

18. In the instant case, the present petitioner/accused

is convicted for the offence punishable under Section 138 of

N.I.Act and sentenced to pay fine of `80,000/- and in default of

payment of fine, to undergo simple imprisonment for a period

of one year. Since in the light of the facts and circumstances of Crl.R.P.No.647/2011

the case, the sentence ordered by the trial Court and confirmed

by the Session Judge's Court being proportionate to the gravity

of the proven guilt against the accused, I do not find any

reason to interfere in it.

19. Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition is dismissed as devoid of

merit.

Petitioner/accused to surrender before the trial Court

within 45 days from today and to serve the sentence.

Registry to transmit a copy of this order to both the trial Court as also the Sessions Judge's Court along with their respective records forthwith.

Sd/-

JUDGE

TL