Sri T Lokesh vs Sri M Jayanna
2022 Latest Caselaw 13009 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 15TH DAY OF NOVEMBER 2022

                           BEFORE

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

   CRIMINAL REVISION PETITION No.494 OF 2013

BETWEEN:

Sri T.Lokesh,
Aged about 38 years,
Son of Late Sri Thirumalappa,
R/at No.38, Narayanamma Lane,
Kodihalli,
Bangalore-560 008.                             .. Petitioner

 ( By Sri S.M.Shivabeeraiah, Advocate )

AND:

Sri M.Jayanna,
Aged about 40 years,
Son of Late Sri Malle Gowda,
R/at No.647, 2nd `A' Cross,
Old Airport Road,
LBS Nagar,
Bangalore-560 017.                             .. Respondent

 ( By Smt.S.B.Lakshmi, Advocate )

      This Criminal Revision Petition is filed under Section 397
read with Section 401 of Cr.P.C. praying to call for entire
record/s in Crl.Appeal No.25111/2012, the order and judgment
dated 1st March 2013 by the Hon'ble FTC-III at Mayohall Unit,
Bangalore and also in C.C.No.35850/2010 passed by the
Hon'ble XIV Addl.ACMM Court at Mayohall, Bangalore for
reviewing the judgments in the above cases and further be
pleased to set aside the judgment and order dated 1st March
                                                 Crl.R.P.No.494/2013
                                2


2013 passed by the Hon'ble Addl.S.J. & P.O., FTC-III at
Mayohall Unit, Bangalore, in Crl.Appl.No.25111/2012 and
further be pleased to acquit the petitioner by setting aside the
trial Court judgment and order dated 18th July 2012 passed in
C.C.No.35850/2010 on the file of Hon'ble XIV Addl.ACMM Court
at Bangalore, under Section 138 of Negotiable Instruments Act,
1881 Act and grant such other relief including the cost of this in
the above circumstances and pass such other order thereon
necessary in accordance with law in the interest of justice and
equity.

      This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing, reserved for
orders on 04.11.2022 and coming on for pronouncement this
day, the Court made the following:

                             ORDER

The present petitioner was accused in

C.C.No.35850/2010, in the Court of the learned XIV

Addl.Chief Metropolitan Magistrate, Bengaluru, (hereinafter

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

dated 18.07.2012, 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 was sentenced accordingly.

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

trial Court was that the accused issued a cheque bearing

No.194175, dated 13.08.2010, for a sum of `18 lakhs, Crl.R.P.No.494/2013

drawn on Dena Bank, Kodihalli Branch, Bengaluru, in

favour of the complainant towards dischargal of his

liability. The accused had borrowed an amount of

`18 lakhs from the complainant for his finance business

and also had executed an on demand Promissory Note with

consideration receipt. The cheque issued towards

repayment of the loan was presented for its realisation by

the complainant through his Banker, however, the said

cheque came to be returned unpaid for the reason of

insufficiency of funds in the account of the drawer.

Thereafter, the complainant got issued a legal notice to the

accused demanding the payment of the cheque amount.

The accused has not paid the cheque amount which

constrained the complainant to institute a criminal case

against the accused in the trial Court for the offence

punishable under Section 138 of N.I.Act.

3. Since the accused pleaded not guilty, charges were

framed against the accused for the alleged offences.

Crl.R.P.No.494/2013

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

himself examined as PW-1 and got marked documents

from Exs.P-1 to P-8. On behalf of the accused, the accused

got himself examined as DW-1 and one Sri Faziulla Khan

as DW-2 and got marked documents from Exs.D-1 to D-5.

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

impugned judgment dated 18.07.2012, 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 has

preferred an appeal in Criminal Appeal No.25111/2012

before the learned Addl.Sessions Judge and Presiding

Officer, Fast Track Court-III, Mayo Hall Unit, Bengaluru,

(hereinafter for brevity referred to as `Sessions Judge's

Court), which by its judgment dated 01.03.2013,

dismissed the appeal by confirming the judgment of

conviction passed by the trial Court. It is against these

judgments of conviction, the accused has preferred this

revision petition.

Crl.R.P.No.494/2013

7. The respondent is being represented by his

learned counsel.

8. Records from the trial Court and Sessions

Judge's Court pertaining to the matter were called for and

the same are placed before the Court.

9. Heard the arguments of learned counsel from both

side. Perused the materials placed before this Court.

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

henceforth referred to as per their rankings before the trial

Court.

11. After hearing the learned counsel from both side,

he 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".

12. The learned counsel for the petitioner in his

argument submitted that the date of loan and the alleged Crl.R.P.No.494/2013

date of demand of loan has not been stated in the

complaint and even in his evidence as PW-1. Further it is

not stated by the complainant as to when the cheque was

issued. Therefore, it creates a doubt about the alleged loan

transaction. He further submitted that the complainant had

no capacity to lend such a huge amount of `18 lakhs since

he was only a vegetable vendor. As such also, a serious

doubt creates with respect to the alleged loan transaction.

However, the trial Court and the Sessions Judge's Court

have not analysed these aspects.

13. Per contra, learned counsel for the respondent in

her argument submitted that the date of loan and issuance

of cheque has been elicited in the cross-examination of PW-

1. Further, admittedly the complainant was a wholesale

dealer in vegetables having lakhs of income per month. As

such, the contention taken up by the learned counsel for

the petitioner in his argument would not sustain and the

impugned judgments does not warrant any interference at

the hands of this Court.

Crl.R.P.No.494/2013

14. The complainant who got himself examined as

PW-1 reiterated the contentions taken up by him in his

complaint even in his examination-in-chief as PW-1 which

evidence was filed in the form of affidavit evidence. In

support of his contention, he got marked the alleged

dishonoured cheque at Ex.P-1, the Banker's endorsement

at Ex.P-2, the postal receipts at Exs.P-3 and P-4, copy of

the legal notice at Ex.P-5, reply to the said notice at Ex.P-6,

on demand Promissory Note with consideration receipt at

Ex.P-7 and certified copy of the simple Mortgage Deed at

Ex.P-8.

Though this witness was subjected to cross-

examination from the accused side, however, except

making denial suggestions, nothing could be elicited in

favour of the accused, on the other hand, some more

details have been elicited in the cross-examination of PW-1.

Thus, the issuance of cheque by the accused to the

complainant as per Ex.P-1 and the same getting

dishonoured for the reason of insufficiency of funds as per Crl.R.P.No.494/2013

Ex.P-2 and the complainant issuing a legal notice

demanding the payment of the cheque amount from the

accused as per Ex.P-5, stands established. This forms a

presumption as to the existence of legally enforceable debt

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

However, the said presumption is rebuttable.

15. In order to rebut the presumption formed in

favour of the complainant, the accused took a defence in

the form of making suggestions to PW-1 in his cross-

examination and also leading his evidence by examining

himself as DW-1 and examining one Sri Faziulla Khan as

DW-2. The specific defence taken up by the accused was

that the complainant was running a chit business. It is in

that connection, the complainant had collected on demand

Promissory Note and cheques from the accused and various

other people and that those cheques were being misused

by the complainant. However, PW-1 has denied those

suggestions as true. Further, in the cross-examination of

DW-1 and DW-2 also, the complainant had denied those Crl.R.P.No.494/2013

defences taken up by the accused. Even though the

accused got produced cheque record slip at Ex.D-1, his

bank passbook at Ex.D-2, copy of his reply to the notice at

Ex.D-3 and two postal receipts at Ex.D-4 and D-5, the

same would not help the accused in creating a doubt in the

case of the complainant about the existence of legally

enforceable debt in favour of the complainant.

16. The evidence of DW-2 that the complainant was

running a chit, which was for a sum of `5 lakhs for the

period of 25 months at the rate of `20,000/- per month,

also has remained to be his self-serving statement. Since

the complainant has denied categorically that he was

running any such chit business and made suggestions to

that effect to DW-1 and DW-2 in their cross-examination, it

was required of the witnesses from the accused side to

place some more material in corroboration of their defence.

If at all the complainant was running a chit business and

that accused and DW-2 were members to the same and

were subscribing every month a sum of `20,000/-, then Crl.R.P.No.494/2013

definitely they were required to possess some documents in

that regard. It is not believable that without any

documents or receipts, one would continue to pay an

alleged subscription of a huge amount of `20,000/- per

month for 25 months continuously. As such, the defence of

the accused that the cheque in question was collected by

the complainant during his chit business would not succeed

in rebutting the presumption formed in favour of the

complainant about the existence of legally enforceable

debt.

17. In addition to the above, the complainant has also

got produced on demand Promissory Note with

consideration receipt at Ex.P-7 and got marked the

signatures of the accused therein as Executant at Exs.P-

7(a) and P-7(b) respectively. He has further produced a

certified copy of the simple Mortgage Deed entered into

between DW-2 and himself with respect to a mortgaged

transaction. It was suggested to DW-2 (mortgagor) in his

cross-examination that the wife of DW-2 had a mortgaged Crl.R.P.No.494/2013

transaction with the complainant, the witness has admitted

the same as true. Further, DW-2 has also admitted a

suggestion as true that he was not aware of the financial

matters of his customers, which includes parties to the

petition. He has also admitted a suggestion as true that he

was unaware of the loan transaction said to have been

taken place between the accused and the complainant and

any financial transaction that has been taken place between

them. Thus, the evidence of DW-2 itself go to show that he

was not aware of the loan transaction between the accused

and the complainant and that it is only to favour the

accused, he deposed in favour of the accused as DW-2.

Further the evidence of DW-1 also could not able to

imbibe any doubt in the case of the complainant about the

loan transaction. Moreover, the on demand Promissory

Note with consideration receipt at Ex.P-7 shown to have

been executed by the accused also further strengthens the

case of the complainant about the loan transaction between Crl.R.P.No.494/2013

himself and the accused. This also makes the case of

complainant more believable.

18. It was also the contention of the learned counsel

for the petitioner that the date of loan and date of demand

for loan have not been stated in the complaint and by PW-

1, so also, it is not even stated when the cheque was issued

to him, as such, the case of the complainant is doubtful.

No doubt, the complainant in his complaint has not

specifically stated the exact date of alleged loan transaction

and also the exact date when the cheque in question was

said to have been issued to him, however, in his cross-

examination as PW-1, the witness has given both these

details specifically. He has stated that the loan was given

by him to the accused in cash on the date 12.03.2010 and

that the accused issued the cheque in question to him on

the date 13.08.2010. As such, the said argument of

learned counsel for the petitioner about the alleged

non-mentioning of date of loan and date of issuance of

cheque is also not acceptable.

Crl.R.P.No.494/2013

19. Lastly, the accused had taken a contention of

alleged financial incapacity of the complainant to lend such

a huge amount of `18 lakhs as loan to him. The contention

of the learned counsel for the petitioner/accused was that

the complainant was a vegetable vendor, as such, he

cannot have such a huge income.

The alleged financial incapacity to lend the alleged

loan of `18 lakhs by the complainant to the accused was

not suggested to PW-1 in his cross-examination. On the

contrary, it was elicited in the cross-examination of PW-1

that he used to supply vegetables to Saffola market and

had been doing the vegetable business since seven years.

The witness has specifically stated that he was getting an

income of `4,000/- to `5,000/-per day from the business.

He admitted a suggestion as true that his monthly income

was from `1,25,000/- to `1,50,000/-. The witness has also

stated that he was getting income from the land of 3 acres

and that he is an Income-tax assessee.

Crl.R.P.No.494/2013

He further stated that he has mentioned in his

Income-tax returns about the loan of `18 lakhs given to the

accused. These statements were elicited in the cross-

examination of PW-1 by none else than the accused himself

and those statements made by PW-1 in response to the

questions put to him by the accused have remained

undenied and undisputed.

Thus, it go to show that the complainant was earning

a sum of `1,50,000/- as income per month from doing

business in vegetables and that he is an Income-tax

assessee. It has also remained undenied that a mention

about the loan transaction in question has been shown by

the complainant in his Income-tax returns too.

Furthermore, in the cross-examination of DW-1, the

witness has admitted a suggestion as true that the

complainant is a wholesale seller of vegetables to Saffola

market. The witness pleaded his ignorance to the

suggestion that the complainant was getting an income of Crl.R.P.No.494/2013

`10,000/- per day. Thus, the alleged income at `10,000/-

per day of the complainant has not been specifically denied

by the accused in his cross-examination, rather, the

accused himself has admitted that the complainant was a

wholesale dealer in vegetables to Saffola market.

These details about the income elicited by none else

than the accused in the cross-examination of PW-1 and the

suggestions made to DW-1 in his cross-examination and

the response of DW-1, would clearly go to show that the

complainant was financially capable to lend the alleged

amount to the accused. As such, the last point of argument

of learned counsel for the petitioner that the complainant

had no financial capacity to lend the loan amount to the

accused is also not acceptable.

20. Thus, the accused could not be able to rebut the

presumption formed in favour of the complainant about the

existence of legally enforceable debt. It is appreciating

these aspects and analysing the evidence placed before Crl.R.P.No.494/2013

them in their proper perspective, since both the trial Court,

as well as the Sessions Judge's Court have given their

finding holding the accused guilty of the alleged offence, I

do not find any reason to interfere in it.

21. It is the sentencing policy that the sentence

ordered should not be either exorbitant nor for name sake

for the proven guilt. It must be proportionate to the

gravity of the proven guilt for which the accused is found

guilty of.

22. In the instant case, the petitioner/accused is

convicted for the offence punishable under Section 138 of

N.I.Act and is sentenced to pay fine of `18,50,000/- 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 the case, the sentence

ordered by the trial Court and confirmed by the Sessions

Judge's Court being proportionate to the gravity of the Crl.R.P.No.494/2013

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

to interfere in the impugned judgments.

23. Accordingly, I proceed to pass the following

order:

ORDER

The Criminal Revision Petition is dismissed as

devoid of merits.

Registry to transmit a copy of this order to both the

trial Court and also to the Sessions Judge's Court along

with their respective records forthwith.

Sd/-

JUDGE

bk/