Sri Mahadevaiah vs Smt Mahadevamma
2023 Latest Caselaw 5484 Kant

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                                 CRL.RP No. 68 of 2021


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 10TH DAY OF AUGUST, 2023
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
    CRIMINAL REVISION PETITION NO. 68 OF 2021
BETWEEN:
SRI. MAHADEVAIAH
S/O RAMAIAH
AGED ABOUT 52 YEARS
R/AT DODDAMARANAHALLI
CHUNCHANAKUPPE POST
THAVAREKERE HOBLI
BENGALURU SOUTH TALUK
BENGALURU - 560 130.

                                             ...PETITIONER
(BY SRI. GOWTHAMDEV C ULLAL, ADVOCATE)

AND:
SMT. MAHADEVAMMA
W/O. MUNIKRISHNAPA
AGED ABOUT 36 YEARS
R/AT NO.84, K. GOLLAHALLI VILLAGE AND POST
KENGERI HOBLI, BENGALURU SOUTH TALUK
BENGALURU - 560 074.

                                           ...RESPONDENT
(BY SRI. PRADEEP M, ADVOCATE)

     THIS CRL.RP IS FILED U/S. 397 R/W SECTION 401
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
05/11/2019 PASSED BY THE II ADDITIONAL CHIEF JUDICIAL
MAGISTRATE BANGALORE RURAL DISTRICT, BANGALORE IN
C.C.NO.1775/2019    AND    JUDGMENT     PASSED     IN
CRL.A.NO.126/2019  DATED    29/10/2020  BY   THE   IX
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE
RURAL DISTRICT, BANGALORE AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 03.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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                                        CRL.RP No. 68 of 2021




                                ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 05.11.2019 in C.C.No.1775/2019 on

the file of the Court of the II Additional Chief Judicial Magistrate

Bangalore Rural District, Bangalore and its confirmation

judgment and order dated 29.10.2020 in Crl.A.No.126/2019

on the file of IX Additional District and Sessions Judge,

Bengaluru, seeking to set aside the concurrent findings

recorded by the Courts below, wherein the petitioner / accused

is convicted for the offence punishable under Section 138 of the

Negotiable Instruments Act (for short 'NI Act').

2. The petitioner is the accused before the Trial Court

and appellant before the Appellate Court.

Brief facts of the case are as under:

3. The case of the complainant is that, the petitioner is

the family friend of the complainant and he was facing some

financial problem and approached the complainant in the month

of October, 2015 and requested to pay a sum of Rs.6,00,000/-.

CRL.RP No. 68 of 2021

It is stated that, the amount was paid to the petitioner and the

petitioner has assured that, he would repay the same within

three years from the date of loan. When the stipulated time

was over, the petitioner did not repay the amount, however, he

stated to have issued two cheques. When the cheques were

presented for encashment, the complainant received an

endorsement as 'No Such Account' on 15.11.2018. After

completing the formalities as is required to lodge a complaint

under the Act, a complaint was filed before the Magistrate. The

Magistrate took cognizance and proceeded further in that

matter.

4. To prove the case of the complainant, the

complainant herself examined as PW.1 and got marked Exhibits

P1 to P10 and on the other hand, petitioner himself examined

as DW.1, however, no documents have been marked on his

behalf. The Trial Court after appreciating the oral and

documentary evidence on record, convicted the petitioner for

the offence punishable under Section 138 of NI Act. Being

aggrieved by the same, the petitioner preferred an appeal

before the Appellate Court, the Appellate Court confirmed the

judgment of conviction rendered by the Trial Court. Being

CRL.RP No. 68 of 2021

aggrieved by the same, the petitioner has preferred this

revision petition seeking to set aside the concurrent findings.

5. Heard Shri Gowthamdev C Ullal, learned counsel for

the petitioner and Shri Pradeep M, learned counsel for the

respondent.

6. It is the submission of learned counsel for the

petitioner that, the judgment of conviction and order of

sentence passed by the Trial Court and its confirmation order

passed by the Appellate Court require to be set aside as the

concurrent findings are perverse, illegal and opposed to facts

and law.

7. It is further submitted that, the alleged transaction

is time barred debt and it cannot be construed as legally

enforceable debt or liability. In the absence of proof for having

said that it is a legally enforceable debt, the complaint is not

maintainable. The Courts below should have rejected the

complaint.

8. It is further submitted that, the contradiction in the

evidence of PW.1 was not considered by the Courts below while

appreciating the evidence. In the evidence of PW.1, she has

CRL.RP No. 68 of 2021

stated that, the cheques were issued as on the date mentioned

on the cheques. However, in the complaint, it is stated that,

the cheques were post-dated cheques, which is contrary to the

evidence of PW.1. The Courts below should have acted upon

the said contradiction and acquitted the petitioner herein.

9. It is further submitted that, when the financial

capacity to lend such huge amount was put to the respondent

during her cross-examination, the respondent had failed to

substantiate her lending capacity. In the absence of proof of

lending capacity, the Court cannot conclude that, the

complainant has proved the case. The Courts below erred in

appreciating both oral and documentary evidence on record and

convicted the petitioner which requires to be set aside.

Having submitted thus, the learned counsel for the petitioner

prays to allow the petition.

10. Per contra, the learned counsel for the respondent

vehemently justified the concurrent findings and submits that,

the Revisional Court is not the Court of fact. If any error

apparent on the findings recorded by the Courts below in

convicting the petitioner, it can be looked into those errors and

acted upon such errors.

CRL.RP No. 68 of 2021

11. It is further submitted that, the issuance of cheques

and the signatures are admitted by the petitioner, however, the

petitioner denied the transaction and financial capacity of the

respondent. Those two grounds have been negatived by the

Courts below and concurrently held that, the petitioner is found

guilty of the offence stated supra. Such being the fact,

interference with the well reasoned order passed by the Courts

below may not be appropriate and the petition requires to be

rejected. Having submitted thus, the learned counsel for the

respondent prays to dismiss the petition.

12. Having heard the rival contentions urged by the

learned counsels for the respective parties and also perused the

judgments of the Courts below, the points which arise for my

consideration are:

i) Whether the concurrent findings recorded by

both the Courts below in convicting the petitioner

for the offence under Section 138 of NI Act are

sustainable?

ii) Whether the petitioner has made out

grounds to interfere with the concurrent findings

recorded by both the Courts below for conviction?

CRL.RP No. 68 of 2021

13. This Court being a Revisional Court, having regard

to the scope and ambit envisaged to appreciate the facts and

law, it is necessary to have a cursory look upon the evidence

and also the law, to ascertain as to whether any illegality or

perversity or error committed by the Courts below in recording

the conviction.

14. It is the case of the complainant/respondent that,

amount of Rs.6,00,000/- was given to the petitioner as hand

loan in the month of October, 2015 for his financial necessities.

It was agreed by the petitioner that, the amount would be

repaid within three years from the date of loan. After the

stipulated period was over, the respondent approached the

petitioner and requested to repay the amount. Then, two

cheques were issued and respondent was asked to present the

same for encashment. When those cheques were presented for

encashment, they were dishonoured. Hence, the respondent

filed a complaint before the jurisdictional Magistrate.

15. On perusal of the document, which is marked as

Ex.P10, it is an agreement of sale and also consent letter.

Agreement of sale dated 11.03.2009, consent letter / deed

stated to have been executed by the respondent on

06.01.2014. As per the said documents, two acres of

CRL.RP No. 68 of 2021

agricultural land stated to have sold for a sum of

Rs.30,00,000/-. The respondent herein was the joint vendor of

the said property. It is the contention of PW.1 that, in the said

transaction, she has received Rs.2,00,000/- as her share in the

sale consideration and she borrowed another Rs.4,00,000/-

from her sisters and handed over the said amount to the

petitioner.

16. The petitioner examined himself as DW.1 and as on

the date of his evidence, he was working as BMTC driver. It

was the contention of DW.1 that, he was subscriber of the chit

which was being run by one Mr.Shivanna and Smt.Renuka.

These cheques were issued as a signed blank cheques as a

security for the said transaction. He has stated that, in spite of

clearing the chit amount, cheques were not returned stating

that, cheques were kept somewhere else and it will be returned

in due course. Even though, DW.1 took defence and denied the

transaction, he has not chosen to examine either Mr.Shivanna

or Smt.Renuka to substantiate the chit transaction. When the

petitioner failed to prove the defence by producing the cogent

evidence, mere denial of the transaction with the respondent

cannot be sufficient to rebut the presumption.

CRL.RP No. 68 of 2021

17. It is needless to say that, once the drawer of the

cheque admits signature and cheque and that it belongs to

drawer, it is presumed that, the same was issued to the drawee

for consideration. When it was presented for encashment and

if it is dishonoured for want of sufficient funds or for any other

reasons, the ingredients of Section 138 of N.I. Act are to be

fulfilled. Once the ingredients are fulfilled, the Court has to

raise the presumption. The burden would be shifted to the

drawer of the cheque to rebut the presumption by producing

cogent evidence. Once the drawer of the cheque rebutted the

presumption successfully, the onus of proof would be shifted to

the drawee of the cheque to prove the transaction and financial

capacity etc.,

18. Of course, in the process of rebutting the

presumption, the drawer of the cheque has to raise the

probable defence. That defence must not be mere denial. It is

also needless to say that, to rebut the presumption, the drawer

of the cheque need not enter into the witness box, however, he

can bring out contradiction or disprove the transaction by

relying on the documents produced by the drawee.

19. In the present case, the petitioner admitted the

signatures on the cheques and it is an admitted fact that, those

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CRL.RP No. 68 of 2021

cheques belong to him. However, he denied the transaction

and also the financial capacity of the respondent. Further DW.1

set up defence that, those cheques were issued in respect of

chit transaction wherein he was the subscriber of the said chit

and it was being run by Mr. Shivanna and Smt. Renuka.

However, he failed to substantiate the defence by producing

the cogent evidence.

20. In the light of the observations made above, the

points which arose for my consideration are answered as

under:-

     Point No.(i)        - "Affirmative"

     Point No.(ii)       - "Negative"

21. Hence, I proceed to pass the following:-

ORDER

The Criminal Revision Petition is dismissed.

Sd/-

JUDGE

UN, Bss