Vijayjeevan Richstaar vs Venkatesh
2023 Latest Caselaw 5617 Kant

                          1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF AUGUST, 2023

                        BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.1086 OF 2015

BETWEEN:

VIJAYJEEVAN RICHSTAAR,
S/O LATE GOVINDASWAMY,
AGED ABOUT 42 YEARS,
RESIDING IN WINSTOR CASTLE,
PATEL RAMAIAH GARDEN,
HENNUR MAIN ROAD,
KOTTANUR,
BENGALURU-560 077.
                                         ....PETITIONER

(BY SRI. NAGENDRA DIKSHIT, ADVOCATE)

AND:

VENKATESH,
S/O G. VARADARAJAN,
AGED ABOUT 42 YEARS,
RESIDING AT KOTTANUR,
K.R. PURAM HOBLI,
BENGALURU EAST TALUK,
BENGALURU-560 077.

                                        ...RESPONDENT
(BY SRI. SAMPATH BAPAT, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE ORDER
OF CONVICTION AND SENTENCE DATED 11.07.2013 IN
C.C.NO.27393/2011   PASSED   BY  THE   XIV   A.C.M.M.,
                                     2

BANGALORE AND ORDER DATED 27.8.2015 PASSED IN
CRL.A.NO.25092/2013 PASSED BY THE LVII ADDL. CITY CIVIL
AND S.J., MAYOHALL UNIT, BANGALORE (CCH-58).

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 04.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                                 ORDER

This revision petition is filed by the accused under

Section 397 of Cr.P.C. challenging the judgment of

conviction and order of sentence dated 11.07.2013

passed by the XIV Additional Chief Metropolitan

Magistrate, Mayo Hall Unit, Bengaluru, in CC

No.27393/2011 convicting the accused for the offence

punishable under Section 138 of N.I. Act and confirmed

by the LVII Additional City Civil and Sessions Judge,

Mayo Hall Unit, Bengaluru, in Criminal Appeal

No.25092/2013 vide judgment dated 27.08.2015.

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-Venkatesh and accused- Vijay are

known to each other from past several years and the

complainant was running two wheeler garage, and the

accused used to get his vehicle serviced in the garage of

the complainant. It is alleged that the accused borrowed

a sum of Rs.5,00,000/- from the complainant to meet

his financial crunch with an assurance to repay the

same at the earliest and towards discharge of the said

debt, he issued a cheque dated 22.12.2009 for

Rs.5,00,000/-. On presentation of the cheque, it was

dishonoured with an endorsement 'Account Closed'. Then

the complainant got issued a legal notice and in spite of

service of notice, the accused has failed to repay the loan

amount and hence the complainant has failed 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 before the learned Magistrate and was enlarged

on bail and he denied accusation. The complainant got

examined himself as PW.1 and also placed reliance on

Exs.P1 to P6. After conclusion of the evidence of

complainant, the statement of accused under Section 313

of Cr.P.C. was recorded and the case of accused is of

total denial. However, the accused himself has got

examined as DW.1 and he relied on Exs.D1 to D3.

5. After hearing the arguments and after

appreciating the oral as well as documentary evidence,

the learned Magistrate has convicted the accused for the

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

imposing imprisonment for six months and awarded

compensation of Rs.6,25,000/-. Being aggrieved by this

judgment of conviction and order of sentence, the

accused has approached the LVII Additional City Civil and

Sessions Judge, Mayo Hall Unit, Bengalru, in Criminal

Appeal No.25092/2013 and the learned Sessions Judge

after re-appreciating the oral and documentary evidence,

has dismissed the appeal. Being aggrieved by these

concurrent findings, the accused is before this Court by

this revision petition.

6. Heard the arguments advanced by the learned

counsel for revision petitioner and the learned counsel for

the respondent. Perused the records.

7. The learned counsel for the revision petitioner

would contend that, it is the specific contention of the

accused that, he has changed his name by giving paper

publication, but the complaint was lodged in old name

and there was no proper service of notice. He would

contend that Exs.D1 to D3 were not properly

appreciated and as the accused is employee of BOSCH,

he is entitled for the benefits of medical reimbursement

and as such, question of taking loan does not arise at all.

It is his contention that the signed cheque was kept in

the vehicle pouch and when the vehicle was left for

servicing with the complainant, the same was misused.

Hence, he would contend that, both the courts below

have failed to appreciate this aspect and erroneously

convicted the accused and sought for interference of this

Court by setting aside the judgment of conviction and

order of sentence of both the Courts below.

8. Per contra, learned counsel for the respondent

would support the judgment of conviction and order of

sentence passed by the trial Court and confirmed by the

First Appellate Court. He would contend that Exs.D4 to

D15 were produced for the first time during the appellate

stage and that would not assist the accused in any way.

He would contend that Ex.D15 was filed on 15.07.2009.

As per the accused, it was in the name of Vijay

Sridharan, which was the original name of the accused.

He would further contend that, as per the accused, he

changed the name in the year 2008. But, his conduct

clearly disclose that, even subsequently also he has dealt

in his original name itself. He would contend that, during

the course of cross-examination, the cheque, signature,

his name, his father's name and address have been

admitted and mere change of name, which was not within

the knowledge of the complainant, cannot be a ground

for accused to seek any benefit. He would also contend

that, the accused has taken inconsistent defence. He

would further contend that, when the account was closed,

question of accepting the defence of accused that, the

signed the blank cheque was kept it in his vehicle pouch

in order to give the same to his wife after ascertaining

the balance, cannot be accepted. Hence, he would

contend that, both the Courts below after proper

appreciation of the evidence, have rightly convicted the

accused and sought for dismissal of the petition.

9. Having heard the arguments and after

perusing the records, now the following point would arise

for 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 erroneous so as to call for any interference by this Court?"

10. As per the case of the complainant, the

accused is well-conversant with him and the accused

availed loan of Rs.5,00,000/- for his requirement on

20.08.2009 from the complainant assuring to repay the

same in a short period and in discharge of the said debt,

the cheque under Ex.P1 came to be issued. There is no

dispute of the fact that the cheque was belonging to the

accused and it bears his signature. Hence, the initial

presumption is in favour of the complainant regarding the

cheque being issued towards legally enforceable debt

under Section 139 of NI Act. It is for the accused to

rebut the said presumption on the basis of cogent

evidence on the principles of preponderance of

probabilities.

11. However, it is also evident that both the

Courts below have in detail appreciated the evidence and

convicted the accused. Against the concurrent findings,

he is in this revision and hence, this Court has very

limited power of interference, unless the accused is able

to establish the perversity in the order of the Courts

below. All along the accused contended that he is not

conversant with the complainant and as such question of

availing hand loan does not arise at all. But interestingly

he admits that, he used to leave his vehicle for service in

the garage of the complainant. Hence, the contention of

the accused that, the complainant is not known to him

cannot be accepted.

12. According to the accused, he kept blank

singed cheque in his vehicle pouch when it was left for

servicing and he intended to fill-up the amount after

ascertaining the balance from the bank in order to give

the same to his wife. However, this defence cannot be

accepted, as admittedly the account was closed. The

accused did not disclose as to when the account was

closed. When the account was closed, question of

accused keeping the blank signed cheque in the dickey

of the vehicle in order to ascertain the balance to hand

over the cheque to his wife does not arise at all. Hence,

the said defence cannot be acceptable at any stretch of

imagination.

13. The other contention of the accused is that, he

has lodged a complaint as per Ex.P15. Admittedly, the

accused is not residing in Indira Nagar area. But, he

claims to have lodged a complaint as per Ex.D15 before

Indira Nagar Police Station. But, on perusal of Ex.D15, it

is evident that, it is pertaining to loss of documents, but

it is not pertaining to the loss of cheque in question. The

accused-DW.1 has admitted in his cross-examination

that, he did not lodge any complaint regarding loss of

cheque nor intimated to the bank in that regard. When

the account itself was closed, question of accused

intimating the loss of cheque to the bank or lodging

complaint in that regard does not arise at all. However,

it is evident from the records that, loss of cheque is

subsequently inserted in Ex.D15. Hence, the said

argument on the part of the accused also holds no water.

Further the accused has not produced any document to

show that, as on the date of the cheque, the account was

in existence. Further, he has not specifically asserted as

to when exactly he left the vehicle for servicing and as on

that date, the account was in existence. Even he pleads

ignorance about the exact place of loss of documents. He

admits that the cheque belongs to him and it bears his

signature. Hence, looking to these facts and

circumstances, the conduct of the accused in taking

untenable defences, it is evident that, the accused is not

able to rebut the presumption and his defence is not a

probable defence.

14. The other contention raised is regarding

change of name. But, it does not have any relevancy in

view of the fact that, even subsequently after getting the

name changed, the accused dealt with his original name.

Further, it is also admitted that, his wife is a real estate

agent. The accused has produced certain documents

before the First Appellate Court. But, that will not prove

his innocence. Even in his statement recorded under

Section 313 of Cr.P.C., he simply asserts that the cheque

has been lost, without giving any details.

15. In the cross-examination, the accused asserts

that the cheque was stolen in July 2009 when the vehicle

was left for servicing. In that event, he could have

produced the documents to show that, as on July 2009,

his Account was operative, but no such evidence is also

forthcoming. Regarding his father's name, much

arguments have been advanced by the counsel for the

revision petitioner. But, the defence itself discloses that

the suggestion made by the counsel has become

admissible wherein the name of the father of the accused

has been admitted. The documents at Exs.D4 to D14 will

not help the accused in proving his defence in any way.

The change of name is nothing to do, as his conduct

discloses that subsequently after change of his name, he

has dealt in his earlier name itself. Regarding service of

notice, much argument has been advanced. But,

admittedly the accused is residing in Kothanur itself.

Hence, by producing certain documents, he cannot prove

his change of address. Even after appearance, he could

have made certain payments and his own untenable

defence establishes that, he has not approached the

Court with clean hands and failed to rebut the

presumption available in favour of complainant. Both the

Courts below have appreciated the oral and documentary

evidence elaborately in proper perspective and rightly

convicted the accused.

16. Looking to the above facts and circumstances,

no illegality or perversity is found with the judgment of

conviction and order of sentence of both the Courts

below. As such, the point under consideration is

answered in the negative. Looking to the above facts and

circumstances, the petition being devoid of merits, does

not survive for consideration and accordingly, I proceed

to pass the following:-

ORDER

i) The petition stands dismissed.

ii) The impugned judgment of conviction and order of sentence dated 11.07.2013 passed by the XIV Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru, in CC No.27393/2011 convicting the accused for the offence punishable under Section 138 of N.I. Act and confirmed by the LVII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru, in Criminal Appeal No.25092/2013 vide judgment dated 27.08.2015, stand confirmed.

iii) bail bonds executed by the accused stand cancelled.

iv) The amount if any deposited by the accused/revision petitioner before this Court shall be transmitted to the trial Court in order to pay the same to the complainant.

The Registry is directed to send back the original records to the concerned Courts below with a copy of this order, with a direction to the trial Court to secure the presence of the accused for the purpose of serving sentence and recovery of fine amount or else to serve the default sentence, as ordered.

Sd/-

JUDGE KGR*