Sri S Rangaswamy vs Sri G Natarajan
2023 Latest Caselaw 5834 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 22ND DAY OF AUGUST, 2023

                          BEFORE

        THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

       CRIMINAL REVISION PETITION NO.691 OF 2015


BETWEEN:

SRI. S. RANGASWAMY,
S/O SARANGAIAH,
AGE: 53 YEARS,
R/O NO.205/6, 2ND STAGE,
2ND PHASE, MANJUNATHNAGAR,
WEST OF CHORD ROAD, RAJAJINAGAR,
BENGALURU-560 010.
                                            ....PETITIONER

(BY SRI. CHANDRASHEKHAR CHANNABASAPPA CHANASPUR,
    ADVOCATE)

AND:

SRI. G. NATRAJAN @ G.N. RAJANNA,
S/O GANGADHAR,
AGED ABOUT 65 YEARS,
R/O NO.82-B/1, GROUND FLOOR,
2ND MAIN ROAD, 2ND PHASE,
WEST OF CHORD ROAD,
MANJUNATHANAGAR,
BENGALURU-560 010.
                                           ...RESPONDENT
(BY SRI. N. SAVANUR, ADVOCATE)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER REGARDING SENTENCE DATED
16.08.2014, PASSED BY THE XIII A.C.M.M., BANGALORE, IN
C.C.NO.26217/2011, CONFIRMED BY THE ORDER DATED
17.04.2015, PASSED BY THE COURT OF LXVI ADDL. CITY CIVIL
AND S.J., BENGALURU IN CRL.A.NO.1091/2014, AND THE
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PETITIONER MAY KINDLY BE ACQUITTED FORM THE CHARGES
FRAMED AGAINST HIM.

     THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 02.08.2023, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:

                               ORDER

This revision is filed by the accused under Section 397

r/w 401 of Cr.P.C. challenging the judgment of conviction and

order of sentence passed by XIII ACMM, Bangalore in

CC.No.26217/2011 and confirmed by LXVI Additional City and

Sessions Judge, Bangalore, in Crl.A.No.1091/2014 vide

judgment dated 17.04.2015.

2. For the sake of convenience, the parties herein are

referred with the original ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are

that accused having knowledge that the complainant has

received retirement benefits of Rs.8,00,000/- he along with

his wife approached the complainant for financial assistance of

Rs.1,00,000/- with a promise to repay the same with interest

within five months. The complainant on the same date

advanced Rs.1,00,000/- to accused and wife of the accused

had issued a cheuqe for Rs.1,00,000/- dated 06.04.2014.

When the said cheque was presented it bounced for

insufficient of funds. Hence, complainant had issued a legal

notice to the wife of accused. Then accused has approached

the complainant and paid Rs.30,000/- and issued a cheque

bearing No.238 for Rs.70,000/- dated 03.01.2011. But when

the said cheque was presented it was also bounced and when

a legal notice came to be issued it was not replied. Hence, the

complaint was lodged for the offence under Section 138 of NI

Act.

4. On the basis of the complaint, learned Magistrate

has taken cognizance and issued process against the accused.

Accused has appeared and was enlarged on bail. He also

denied the accusation. The complainant was got examined

himself as PW1 and placed reliance on Exs.P1 to P7. After

conclusion of the evidence of the complainant, the statement

of accused under Section 313 Cr.P.C., is recorded to enable

the accused to explain incriminating evidence appearing

against him in the case of the complainant. The case of the

accused is of total denial. However, the accused has got

examined himself as DW1 and he has also placed reliance on

Ex.D1 & D2. After hearing the arguments and appreciating the

oral and documentary evidence, the learned Magistrate has

convicted the accused/revision petitioner for the offence

punishable under Section 138 of NI Act by imposing sentence

of fine of Rs.72,000.

5. Being aggrieved by this judgment of conviction

and order of sentence, the accused has approached LXVI

Additional City Civil and Sessions Judge, Bangalore in

Crl.A.No.1091/2014. 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 passed by the learned Magistrate. Being

aggrieved by these concurrent findings, this revision is filed.

6. Heard the arguments advanced by learned counsel

for the revision petitioner and learned counsel for the

respondent. Perused the records.

7. Learned counsel for the revision petitioner would

contend that the complainant in his cross examination has

taken inconsistent stand asserting that in the complaint there

is allegation of advancement of loan of Rs.1,00,000/- and in

the cross-examination, he asserted that Rs.30,000/- was paid

initially and then accused when approached along with his wife

Rs.70,000/- was paid which is inconsistent version. He would

further contend that as per the case of the complainant,

Rs.1,00,000/- was paid and out of the same, Rs.30,000/- was

repaid and towards balance cheque was issued. But the

complainant has given a different version. It is asserted that

transaction if of the year 2006 and there is no legally

enforceable debt and hence, he would dispute the claim. He

would contend that both the Courts below have failed to

appreciate the oral and documentary evidence in proper

perspective which has resulted in miscarriage of justice.

Hence, he would seek for allowing the revision by setting aside

the impugned judgments of courts below.

8. Per contra, learned counsel for the respondent

would contend that the loan of Rs.1,00,000/- was given to the

accused and wife of the accused. The accused has paid

Rs.30,000/- by cash. Towards balance of Rs.70,000/-, this

cheque came to be issued. He would also contend that certain

variance in the evidence cannot be given much importance

and he would further assert that the presumption is in favour

of the complainant under Section 139 of NI Act and same is

not rebutted. Hence, he would seek for dismissal of the

revision petition.

9. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

""Whether the Judgment of conviction and order of sentence passed by the trial Court and confirmed by the lower appellate Court are perverse, arbitrary and erroneous so as to call for any interference by this Court?"

10. At the first instance, it is important to note here

that accused has not disputed that the cheque belongs to him

and his signature on the cheque. Hence, the presumption

under Section 139 of NI Act that the cheque was issued

toward legally enforceable debt is required to be drawn.

Though the said presumption is rebuttable presumption, it is

for the accused to rebut the same on the basis of

preponderance of probability. At the same time, it is also

important to note here that when the complainant has given

evidence, he was aged about 69 years.

11. It is also important to note here that initially the

cross-examination of complainant was not done in spite of

granting sufficient opportunities and subsequently, the

complainant was recalled and again the cross was deferred

and on the date when deferred again further cross is taken as

nil. But later on again he was recalled and further cross-

examined and this conduct of the accused disclose that he has

cross-examined the complainant in piece-meal by testing his

patience.

12. Further, it is also evident that both the Courts

below have concurrently held that accused has committed an

offence under Section 138 of NI Act. This being the revisional

Court, the powers are very limited. Admittedly, cheque and

the signature are undisputed. The legal notice issued as per

Ex.P3 and served on the accused is not under dispute. But

accused did not give any reply for this legal notice. No

explanation is offered by the accused for non-replying the

notice so as to put forward his defense at the first instance.

13. The Financial status of the complainant is also not

challenged by the accused. It is the specific assertion of the

complainant that in 2009, accused and his wife received

Rs.1,00,000/- and the complainant has issued a legal notice to

the wife of the accused and then accused approached him and

taken back the said cheque of Rs.1,00,000/- issued by his wife

by paying Rs.30,000/- and issued a fresh cheque. This

statement of complainant is consolidated by the documents

produced by the accused himself under Exs.D1 & D2. Under

Ex.D1 complainant has issued the legal notice to the wife of

the accused and that cheque is also produced as per Ex.D2

which was torn and that is exact case of the complainant. Now

the accused intends to take advantage of a statement in the

cross-examination dated 30.06.2014 that, initially Rs.30,000/-

was paid and then accused along with his wife approached him

and received Rs.70,000/-. This cannot be read as two different

transactions and it is the specific case of the complainant that

pertaining to Rs.70,000/- balance, cheque was issued.

14. The accused himself was got examined as DW1

and in his cross-examination he admitted that he issued the

cheque under Ex.P1 after canceling Ex.D2. The accused simply

asserts that he was required to pay Rs.15,000/- to the

complainant and Rs.10,000/- was paid by complainant to

Gangaiah. But who is that Gangaiah is not at all forthcoming

and the said person is not examined. It is for the accused to

explain under what circumstances he has issued cheque for

Rs.70,000/- but that is not forthcoming.

14. Evidence lead by the accused does not rebut the

presumption available in favour of the complainant. Both the

Courts below have appreciated the oral and documentary

evidence in detail and have rightly convicted the accused. The

judgment of conviction and order of sentence passed by both

the Courts below cannot be said to be perverse or arbitrary so

as to call for any interference by this Court. Considering these

facts and circumstances, the point under consideration is

answered in the negative and as such, revision petition being

devoid of merits does not survive for consideration.

Accordingly, I proceed to pass the following:

ORDER

The Revision petition filed by the revision petitioner

stands dismissed.

Amount if any deposited by accused/revision petitioner

shall be paid to complainant.

Sd/-

JUDGE