Karnataka High Court
Vikrant Vasant Kurne vs Anmol Multi-Purpose Souhard Sahakari ... on 18 December, 2023
1 CRL.R.P.NO.100019 OF 2022
C/W CRL.R.P.NO.100020 OF 2022
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION No.100019 OF 2022
C/W
CRIMINAL REVISION PETITION No.100020 OF 2022
IN CRL.R.P.NO.100019 OF 2022
BETWEEN:
VIKRANT VASANT KURNE,
AGE: 37 YEARS,
OCC: BUSINESS,
R/O H.NO.3553,
NEAR TARUN BHARAT PRESS,
NARVEKAR GALLI,
Digitally
signed by
BELAGAVI-590003.
VN
VN BADIGER
BADIGER Date:
...PETITIONER
2023.12.21
13:37:08
+0530
(BY SRI. SRINIVAS B.NAIK, ADVOVCATE)
AND:
ANMOL MULTI-PURPOSE SOUHARD
SAHAKARI NIYAMIT, BELAGAVI,
REP.BY ITS DEVELOPMENT OFFICER
VINAYAK A CHAVAN,
AGE: 40 YEARS,
OCC: DEVELOPMENT OFFICER,
R/O BELAGAVI-590001.
...RESPONDENT
(BY SMT.ROOPA N.GHANTI, ADVOCATE)
2 CRL.R.P.NO.100019 OF 2022
C/W CRL.R.P.NO.100020 OF 2022
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C, 1973, SEEKING TO a) ALLOW
THIS REVISION PETITION AND SET ASIDE THE JUDGMENT AND
ORDER DATED 29.10.2021 PASSED IN CRIMINAL APPEAL
NO.459/2019 ON THE FILE OF IX ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BELAGAVI AND SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE DATED 18.10.2019
PASSED IN C.C.NO.625/2019 ON THE FILE OF JUDICIAL
MAGISTRATE FIRST CLASS-V, BELAGAVI, FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT, AND THEREBY
ACQUIT THE PETITIONER/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I.ACT.
IN CRL.R.P.NO.100020 OF 2022
BETWEEN:
PRIYANKA VIKRANT KURNE,
AGE: 30 YEARS,
OCC: HOUSEWIFE,
R/O H.NO.3553,
NEAR TARUN BHARAT PRESS,
NARVEKAR GALLI,
BELAGAVI-590003.
...PETITIONER
(BY SRI. SRINIVAS B.NAIK, ADVOVCATE)
AND:
ANMOL MULTI-PURPOSE SOUHARD
SAHAKARI NIYAMIT, BELAGAVI,
REP. BY ITS DEVELOPMENT OFFICER
VINAYAK A CHAVAN,
AGE: 40 YEARS,
OCC: DEVELOPMENT OFFICER,
R/O BELAGAVI-590001.
...RESPONDENT
(BY SMT.ROOPA N.GHANTI, ADVOCATE)
3 CRL.R.P.NO.100019 OF 2022
C/W CRL.R.P.NO.100020 OF 2022
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C, 1973, SEEKING TO ALLOW THIS
REVISION PETITION AND SET ASIDE THE JUDGMENT AND ORDER
DATED 29.10.2021 PASSED IN CRIMINAL APPEAL NO.458/2019
ON THE FILE OF IX ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BELAGAVI AND SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE DATED 18.10.2019 PASSED IN
C.C.NO.624/2019 ON THE FILE OF JUDICIAL MAGISTRATE FIRST
CLASS-V, BELAGAVI, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I. ACT, AND THEREBY ACQUIT THE
PETITIONER/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I.ACT.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
ON 13.09.2023, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In these two petitions filed under Section 397 r/w
Section 401 Cr.P.C, petitioners who are accused in
C.C.No.625/2019 and C.C.No.624/2019, respectively, have
challenged their conviction and sentence for the offence
punishable under Section 138 of N.I. Act, which came to be
confirmed in the appeal filed by them before the Sessions
Court.
2. In these cases, complainant is common. However,
though the accused are different, they are husband and wife
C/W CRL.R.P.NO.100020 OF 2022
and the facts leading to the filing of the complaints are
similar and involve common discussion and therefore these
two petitions are connected and disposed off by a common
order.
3. Complainant is a Multipurpose Co-operative
Society engaged in finance business, including lending
money to its members. It is the case of the complainant that
accused are its members. They borrowed loan of
Rs.1,90,000/- each on 01.09.2018, agreed to repay the
same as per the terms and conditions. They have also
executed necessary documents and furnished sureties.
However, they failed to keep up with the repayment schedule
and on repeated request and demand issued the subject
cheques. However, when they were presented for realization
on 18.01.2019, they were dishonoured on the ground of
"Funds insufficient". Complainant got issued legal notice
dated 06.02.2019 to both accused. The notice sent to the
wife i.e, accused in C.C.No.624/2019 is duly served on her.
However, the notice sent to the husband i.e, accused in
C/W CRL.R.P.NO.100020 OF 2022
C.C.No.625/2019 is returned on the ground that despite
issue of intimation, he has failed to claim/receive the same.
Admittedly, the accused have neither paid the amount due
under the cheques nor sent any reply and without any
alternative the complaints are filed.
4. In each case, on behalf of the complainant, the
sworn statement of the Development Officer by name
Vinayak.A.Chavan is recorded and the documents relied upon
by the complainant are marked as Ex.P1 to 6 separately.
Based on the material placed on record, the trial Court
ordered for registering the case and issued summons to the
accused.
5. Accused appeared through counsel and secured
bail.
6. Plea of accused is recorded and they have pleaded
not guilty and claimed that they have defence to make. As
per the decision of the Hon'ble Apex Court in Indian Bank
Association Vs Union of India and others (Indian Bank
C/W CRL.R.P.NO.100020 OF 2022
Association)1, the trial Court treated the sworn Statement
of complainant as evidence. Since the accused failed to file
application under Section 145(2) of N.I.Act i.e requesting the
Court to direct PW-1 to tender for cross-examination, the
trial court recorded statement of accused under Section 313
Cr.P.C and posted the case to defence evidence.
7. However, accused have not led any defence
evidence.
8. Vide the impugned judgment and order the trial
Court convicted the accused and sentenced them to pay fine
with default sentence.
9. Both accused challenged their conviction and
sentence before the Session Court in Crl.A.No.458/2019 and
Crl.A.No.459/2019. However, the Sessions Court dismissed
both appeals.
10. Being aggrieved by the impugned judgments and
orders, the accused are before this Court, contending that
(2014) 5 SCC 590
C/W CRL.R.P.NO.100020 OF 2022
they are contrary to law, facts and evidence on record, and
as such liable to be set aside. The trial Court as well as the
Sessions Court have not believed the defence of the accused.
The complainant has failed to discharge the initial burden
with regard to existence of legally recoverable debt or
liability. The complainant has also failed to produce all the
records and documents to prove the amount due and without
taking into consideration the said aspect, the trial Court has
mechanically proceeded to convict the accused and sentence
them. There is irreconcilable and inconsistency in the
evidence of a complainant. The accused have successfully
rebutted the presumption and without appreciating the same
the trial Court has convicted the accused and prays to allow
the petitions, set aside the judgments and orders and acquit
the accused.
11. It is pertinent to note that, though the accused in
these two cases are husband and wife, in the complaint, in
the address of the wife, the door number is Given as 3522,
wherein she is duly served with the legal notice, as well as
C/W CRL.R.P.NO.100020 OF 2022
summons before the trial Court. So far as the husband is
concerned, in the complaint the door number of his address
is given as 3553. The legal notice to him is sent to the said
address. Though, in Crl.A.No.459/2019, he has given his
door number as 3522, in the present petition, he has given
his door number as 3553 as stated in the complaint as well
as in the legal notice. Thus both accused have not disputed
their address to which the legal notice was sent.
12. Of course, it was duly served on the wife, but the
husband has failed to receive/collect the same despite
intimation being delivered. Therefore, it is presumed that the
husband had knowledge of the legal notice sent to him and
deliberately he has failed to receive it and act upon. Having
regard to the fact that the wife is served with the legal
notice, also give an indication that the husband was aware of
the legal proceedings being initiated against him also and a
presumption may be drawn that intentionally he has failed to
receive the notice. Having failed to receive the notice by the
husband and having failed to send reply, both accused have
C/W CRL.R.P.NO.100020 OF 2022
not only failed to comply with the requirement of the notice
by paying the amount due under the cheques, but have also
failed to come up with any defence at the earliest point of
time.
13. In Indian Bank Association case referred to
supra, taking into consideration the enormity of pendency of
criminal complaints arising out of N.I.Act, and in the light of
presumption under Sections 118 and 139 of the N.I.Act and
having regard to the limited scope of defence available to the
accused, the Hon'ble Supreme Court has issued guidelines
for speedy disposal of cases. One such guideline is to treat
the sworn statement of complainant as his evidence and on
appearance of the accused to record his plea and post the
matter for his defence evidence, unless and until the
prosecution or accused choose to file an application under
Section 145(2) of N.I.Act to summon any person who has
given evidence by way of affidavit for cross-examination, or
to examine any other witness. Only when the accused files
an application to tender the witness examined for the
C/W CRL.R.P.NO.100020 OF 2022
complaint, he is not entitled to cross examine the witness. As
evident from the order sheet of both cases, after their plea
was recorded, the accused have not chosen to file application
under Section 145(2) to summon PW-1 for cross-
examination. Despite granting sufficient time, they have also
not led any defence evidence. Practically in the absence of
reply to the legal notice, cross-examining PW-1 and also
leading defence evidence, the accused have not taken any
defence at all.
14. In the absence of any defence, the accused have
not disputed the fact that the subject cheques are drawn by
them on their account maintained with their banker and they
bear their signature. Consequently, the presumption under
Sections 118 and 139 of N.I.Act to the effect that the
cheques were issued towards repayment of any legally
recoverable debt or liability is operating in favour of the
complainant. Therefore, the initial burden is on the accused
to prove that the cheques were not issued towards
repayment of any legally recoverable debt or liability. It is for
C/W CRL.R.P.NO.100020 OF 2022
them to prove the circumstances in which the said cheques
came into the hands of complainant and thereby rebut the
presumption.
15. Only after the accused rebut the presumption, the
burden would shift on the complainant to prove its case by
producing further evidence. When the accused have failed to
rebut the initial presumption, there was no occasion or
necessity for the complainant to produce further documents
regarding the loan availed by the accused and balance due
from them. Therefore, now it does not lie in the mouth of the
accused to say that the trial Court as well as the Sessions
Court have not considered their defence and that the
complainant has not led sufficient evidence to prove their
guilt.
16. In the light of the presumption and on the failure
of accused to rebut the same, both trial Court as well as the
Sessions Court are justified in convicting the accused. When
the accused have not set up any defence at all, question of
C/W CRL.R.P.NO.100020 OF 2022
the trial Court and Sessions Court not appreciating their
defence would not arise. Absolutely no justifiable grounds are
made out to interfere with the said orders in exercise of
revisional jurisdiction by this Court. In the result, both
Revision Petitions fail and accordingly the following:
ORDER
(i) Petitions filed by both the petitioners under
Section 397 r/w 401 Cr.P.C are rejected.
(ii) The impugned judgment and order dated
18.10.2019 in C.C.No.625/2019 and
C.C.No.624/2019 on the file of JMFC,
Belagavi and judgment and order dated
29.10.2021 in Crl.A.No.459/2021 and
Crl.A.No.458/2019 on the file of IX
Addl.District and Sessions Judge, Belagavi
are confirmed.
(iii) The Registry is directed to send back the trial
Court record as well as Sessions Court record
along with copy of this order forthwith.
Sd/-
JUDGE
RR
