Karnataka High Court

Sri.Chikkanna@Prem vs Srinivasa on 11 August, 2023

Bench: Rajendra Badamikar

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF AUGUST, 2023

                        BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.1252 OF 2019

BETWEEN:

SRI. CHIKKANNA @ PREM
S/O SRI. GANGAPPA,
AGED ABOUT 37 YEARS,
H.Q. CREATIVE WORKS,
NO.7/13, 8TH MAIN ROAD,
'B' BLOCK, WARD NO.122,
K.P. AGRAHARA,
BENGALURU-560 023,
R/AT NO.823, 'NANDA DEEPA',
6TH CROSS, 4TH MAIN ROAD,
M.C. LAYOUT, VIJAYANAGAR,
BENGALURU-560 4040.
                                           ....PETITIONER
(BY SRI. VISHWANATH R. HEGDE, ADVOCATE)

AND:

SRINIVASA
S/O LATE MUNIKRISHNAPPA,
AGED ABOUT 45 YEARS,
RESIDING AT NO.9/1, 'B' STREET,
10TH CROSS, MAGADI ROAD,
BENGALURU-560 023
                                          ...RESPONDENT
(BY SRI. CHANDRAPPA .K.N, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PARYING TO SET ASIDE
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THE JUDGMENT DATED 30.08.2019 IN CRL.A.NO.2110/2018
ON THE FILE OF THE LII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU AND THE JUDGMENT
DATED 22.09.2018 IN C.C.NO.15892/2017 ON THE FILE OF
THE LEARNED JUDGE, COURT OF SMALL CAUSE(SCCH-9) AND
XXVI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT
BENGALURU PASSED BY THE COURT BELOW AND DISMISS
THE COMPLAINT FILED BY THE RESPONDENT.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 03.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                              ORDER

1. This revision petition is filed by the accused

under Section 397 r/w. 401 of Cr.P.C. challenging

judgment of conviction and order of sentence dated

22.09.2018 passed by the Court of Small Causes and XXVI

ACMM, Bengaluru, in CC No.15892/2017 and confirmed by

the LII Additional City and Sessions Judge, Bengaluru, in

Criminal Appeal No.2110/2018 vide judgment dated

30.08.2019.

2. For the sake of convenience, the parties herein

are referred as per the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case are

that, the complainant-Sri. Srinivasa and accused-Sri.

Chikkanna are neighbourers. The accused approached the

complainant during the 4th week of September 2016 seeking

financial assistance of Rs.3.00 Lakhs for his urgent personal

requirements and in that regard, the accused issued a

post-dated cheque for Rs.3.00 Lakhs and when the

complainant presented the said cheque for encashment, it

was bounced for 'Insufficient Funds'. The complainant then

got issued a legal notice, which is served on the accused.

The accused did not respond to the legal notice. Hence, the

complainant lodged a complaint.

4. On the basis of the complaint, the learned

Magistrate has taken cognizance and issued process against

the accused. The accused appeared through his counsel

and was enlarged on bail. He has also denied the

accusation.

5. Before the trial Court, the complainant was

examined as PW.1 and he placed reliance on Nine

documents marked at Exs.P1 to P9. After conclusion of the

evidence of the complainant, the statement of accused

under Section 313 of Cr.P.C. was recorded to enable the

accused to explain the incriminating evidence appearing

against him in the case of complainant. The case of

accused is of total denial. The accused himself has got

examined as DW.1 and he has also placed reliance on

Exs.D1 to D4.

     6.     Having    heard   the   arguments    and   after

appreciating the     oral and documentary evidence, the

learned Magistrate has convicted the accused for the

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 ( 'N.I. Act' for short) by imposing

fine of Rs.3,30,000/- with default clause of six months of

Simple Imprisonment. Being aggrieved by this judgment of

conviction and order of sentence, the accused has filed an

appeal on the file of the LII City Civil and Sessions Judge,

Bengaluru, in Crl.A. No.2110/2018. The learned Sessions

Judge after re-appreciating the oral and documentary

evidence, has dismissed the appeal by confirming the

judgment of conviction and order of sentence. Being

aggrieved by these concurrent findings, the petitioner is

before this Court by way of this revision petition.

7. Heard arguments advanced by the learned

counsel for the petitioner and the learned counsel for the

respondent. Perused the records.

8. Learned counsel for the revision

petitioner/accused would contend that the complainant has

not pleaded as to how and on which date the loan was

advanced and in the evidence, it is asserted that, it was

paid on 24.09.2016. He would contend that, since the

accused has disputed the financial status of the complainant

to advance such a huge amount and considering his cross-

examination, it is evident that the complainant has no

financial capacity to advance the such a huge loan and the

defence raised by the accused becomes more probable. He

would also contend that, Ex.P9 (Statement of Account) does

not assist, as it is not pertaining to the alleged date of

advancement of loan and the source of funds is not

disclosed by the complainant Hence, he would contend that

the defence of the accused is more probable regarding

availment of loan of Rs.15,000/- and Rs.35,000/-, and

hence he would contend that, both the courts below have

not properly appreciated the oral and documentary

evidence in proper perspective. Hence, he would contend

that the revision needs to be allowed by setting aside the

impugned judgment of conviction by both the Courts below.

9. Per contra, the learned counsel for

respondent/complainant asserts that, the accused has taken

a specific defence regarding availment of loan of

Rs.35,000/- and Rs.15,000/- and repayment of the same.

According to him, the cheque was issued as security for the

said loan transactions. In that event, he could have issued

an intimation to the Bank for stop payment, which he has

not done. He would also deny that the complainant was

doing money lending business. He would also contend that

the documents relied by the accused would not assist him

and hence, he disputed the claim and sought for dismissal

of the revision petition.

10. Having heard the arguments and after perusing

the records, now the following point would arise for my

consideration:-

"Whether the impugned judgment of conviction and order of sentence passed by the trial Court and confirmed by the First Appellate Court are perverse, arbitrary and illegal so as to call for any interference by this Court?"

11. It is the specific contention of the complainant

that, he is well-conversant with the accused and in the 2nd

week of September 2016, the accused has approached him

for advancement of loan of Rs.03.00 Lakhs and on

24.09.2016, he advanced a sum of Rs.03.00 Lakhs in cash

and in discharge of the said debt, the cheque under Ex.P1

came to be issued, which was returned for Insufficient

Funds, when presented. There is no dispute of the fact that

Ex.P1-Cheque belongs to the accused and it bears his

signature. Hence, the initial presumption under Section 139

of the N.I. Act is in favour of complainant, that the cheque

was issued towards legally enforceable debt. It is for the

accused to rebut the said presumption on the basis of the

preponderance of probabilities.

12. The complainant was examined as PW.1 and in

his examination-in-chief, he has reiterated the complaint

allegations. In the cross-examination, the complainant

admitted that, he is an employee of BEL and also admits

that the salary would be credited to his account. He also

admits that, he availed cheque book facility and he is an

income-tax assessee. He also admits that he has not

shown the source and mode payment of Rs.3.00 Lakhs to

the accused in his income-tax returns. He further admits

that there are no documents to show that as on 24.09.2016

he had sufficient bank balance in his account. He

undertakes to produce the bank statement pertaining to the

relevant period.

13. In further cross-examination, he has also

admitted that he has also advanced loan to one Sri. T.G.

Rajashekar and he lodged a complaint against him for

cheque bounce in CC No.22175/2016 as per Ex.D1. He has

also admitted that, he has given evidence as per Ex.D2. In

the further cross-examination, he admitted that, the

accused was doing carpentry piece work job. It is

suggested to the complainant that, in September 2016, he

was not possessing sufficient balance in his account to

advance loan of Rs.3.00 Lakhs, but he denied the said

suggestion. He placed reliance on Ex.P9. But, on perusal

of Ex.P9 it is evident that, it is a bank statement for the

period from 05.06.2016 to 10.06.2016 and it is not

pertaining to the period of September, 2016.

14. Learned counsel for the respondent tried to

impress upon the Court that, from Ex.P9 it is evident that

the complainant has withdrawn Rs.4,00,000/- on

08.06.2016 and the same was with him and he paid it to

the accused in 4th week. If that is the case, when there was

demand in 2nd week, he could have paid it then only. But,

he paid it in 4thweek and no explanation is forthcoming in

this regard. It is hard to accept that the complainant has

presumed regarding demand from accused in June itself

and withdrawn the said amount. He did not explain as to

why he has not obtained the statement for the month of

September, 2016 from the Bank.

15. It is the defence of the accused that, in 2008 he

availed hand loan of Rs.15,000/- and Rs.35,000/- from the

complainant i.e., totally to the tune of Rs.50,000/- and at

that time, he had issued the cheque and he repaid the said

amount. But, no documents are forthcoming to

substantiate the said contention. But, at the same time,

the presumption under Section 139 of N.I. Act cannot be

made available when the financial status of the complainant

itself is disputed and complainant is required to prove his

financial status.

16. The complainant has not produced any piece of

document to show that, in the month of September 2016,

he was possessing huge amount of Rs.3.00 Lakhs. Ex.P9

does not assist the complainant in this regard, as there is

no question of he imagining demand by the accused in

September, 2016. If he had money, he could have paid it

in the 2nd week of September itself when the demand was

made. But, that was not done. Exs. D1 and D2 disclose

that the complainant is doing money lending business as

Ex.D1 discloses that he has advanced loan of Rs.8.00 Lakhs

to one Rajashekar T.G. Ex.D2 is the evidence of the

complainant made in the said case and this amount said to

have been advanced in July 2014. It is hard to accept the

conduct of the complainant regarding he advancing hand

loan in huge quantity without charging any interest. This

conduct definitely creates doubt regarding the genuineness

of case of complainant. The complainant has not explained

about the source of income and that was not pleaded in the

complaint.

17. Looking to the above facts and circumstances

and considering the fact that the complainant has failed to

prove his financial status, the presumption under Section

139 cannot be made applicable in favour of the

complainant. On the contrary, the defence raised by the

accused regarding he availing loan to the tune of

Rs.50,000/- and issuing cheque as security, appears to be

more probable, in view of the fact that the complainant is

doing money lending business, which is evident from

Exs.D1 & D2. The records disclose that the complainant is

doing illegal money lending business and under the guise of

money lending, he is obtaining cheques. In that context,

the learned counsel for the revision petitioner has placed

reliance on a decision reported in (2019) 5 SCC 418

[Basalingappa Vs. Mudibasppa], wherein the Apex Court

has observed as under:-

"B. Debt, Financial and Monetary Laws - Negotiable Instruments Act, 1881 - Ss. 139 and 138 - Rebuttal of presumption under S. 139 - If made out - Accused disputing financial capacity of complainant to pay amount and leading evidence to prove it - Held, accused led probable defence

- Under such conditions, burden would be on complainant to establish his financial capacity, which he was unable to do - Hence, acquittal restored."

18. In the instant case also, the accused has

disputed the financial status of the complainant. The

accused is admittedly BEL employee and he had no source

of income except salary. He claims to be an income-tax

assesse. But, no documents were produced in that regard.

But, he admitted that, the amount of Rs.3.00 Lakhs is not

shown in income tax returns. On the contrary, Exs.D1 and

D2 disclose that he is doing money lending transactions

illegally. Hence, the presumption stands rebutted and the

defence raised by the accused is more probable rather than

the case of the complainant. The principles enunciated by

the Apex Court in the case of Basalingappa cited supra

are directly applicable to the facts and circumstances of the

case in hand.

19. Both the Courts below have failed to appreciate

the oral and documentary evidence led by the parties in

proper prospective and further failed to analise the

admissions given by the complainant regarding his financial

status. Both the Courts below, only on the ground of

cheque and signature are being admitted, they proceeded

to convict the accused. But the conduct of the complainant

was not at all considered and Exs.D1 and D2 were not

properly appreciated. Hence, the entire approach of both

the Courts below is arbitrary and perverse, which has

resulted in miscarriage of justice, as it establishes that

cheque in question is not issued towards legally enforceable

debt.

20. Considering the above facts and circumstances,

the judgment of conviction and order of sentence passed by

both the Courts below are perverse, arbitrary and illegal

and they call for interference of this Court. As such, the

point under consideration is answered in the affirmative. In

view of the same, the revision petition needs to be allowed

and accordingly, I proceed to pass the following:

ORDER

i) The Revision Petition is allowed.

ii) The impugned judgment of conviction and order of sentence dated 22.09.2018 passed by the Court of Small Causes and XXVI ACMM, Bengaluru, in CC No.15892/2017 and confirmed by the LII Additional City and Sessions Judge, Bengaluru, in Criminal Appeal No.2110/2018 vide judgment dated 30.08.2019, are set aside.