Karnataka High Court
Francis Kardoza vs Ravikumar on 7 December, 2023
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CRL.RP No. 1249 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL REVISION PETITION NO. 1249 OF 2019
BETWEEN:
FRANCIS KARDOZA,
S/O FELIX KARDOZA,
AGED ABOUT 57 YEARS,
R/AT INDIRA NAGARA,
KOPPA POST,
KOPPA TALUK,
CHIKKAMAGALURU,
PIN CODE - 577 126.
...PETITIONER
(BY SRI. SANCHAN JAI NANDAN, ADVOCATE)
AND:
RAVIKUMAR
Digitally signed SINCE DEAD BY HIS LR
by CHAITHRA P
Location: High SMT. GEETHA. N,
Court of
Karnataka W/O LATE RAVIKUMAR,
AGED ABOUT 44 YEARS,
R/AT. MELINA PETE,
YELLAPPA COMPOUND,
KOPPA POST,
KOPPA TALUK,
CHIKKAMAGALURU.
PIN CODE -577 126.
...RESPONDENT
(BY SRI. VARUN PAPI REDDY, ADVOCATE)
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CRL.RP No. 1249 of 2019
THIS CRL.RP IS FILED 397 R/W 401 CR.PC PRAYING TO
SET ASIDE THE JUDGMENT DATED 01.08.2019 IN
CRL.A.NO.17/19 PASSED BY THE COURT OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT
CHIKKAMAGALURU CONFIRMING THE JUDGMENT DATED
22.12.2018 IN C.C.NO.76/2018 PASSED BY THE COURT OF THE
SENIOR CIVIL JUDGE AND JMFC AT N.R.PURA, ITINERATE AT
KOPPA AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel Sri Sanchan Jai Nandan,
for the petitioner and Sri Adinarayan, learned counsel for
the respondent.
2. The accused-petitioner has filed this petition
under Section 397 read with Section 401 of Cr.P.C.
praying to set aside the judgment of conviction and
sentence dated 22.12.2018 passed by the learned Senior
Civil Judge and JMFC, N.R.Pura, Itenerate at Koppa,
Chikkamagaluru District in C.C.No.76/2018
(CC No.476/2010) and judgment dated 01.08.2019 passed
by the learned Second Additional District and Sessions
Judge at Chikkamagaluru in Criminal Appeal No.17/2019
and prayed to acquit the petitioner for the offence
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punishable under Section 138 of the Negotiable
Instruments Act.
3. For the sake of convenience, the parties are
referred to as per their ranking before trial court. The
petitioner is the accused and the respondent is
complainant before the trial court.
4. The brief facts of the complainant's case is as
under:
The complainant filed a private complaint under
Section 200 of Cr.P.C., for the offence punishable under
Section 138 of the Negotiable Instruments Act (for short
"N.I.Act"), contending that the complainant and the
accused are well known to each other, on 12.04.2010 the
accused borrowed a hand loan of Rs.50,000/- from the
complainant and in consideration thereof, the accused
issued the cheque bearing No.972103 for a sum of
Rs.50,000/- drawn on Syndicate Bank, Koppa Branch and
the accused requested the complainant to present the
cheque in the first week of August 2010. Therefore, as per
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the request of the accused, the complainant presented the
said cheque for encashment through CKG Bank, Koppa
Branch on 02.08.2010 and the cheque returned with an
endorsement as "funds insufficient" in the account of the
accused vide memo dated 04.08.2010, hence, the
complainant got issued legal notice dated 11.08.2010 and
called upon the accused to pay the amount due under the
cheque. On 13.08.2010, the accused received the notice
and issued untenable reply and failed to repay the amount
due under the cheque. Therefore, the complainant filed a
private complaint under Section 200 of Cr.P.C., for the
offence punishable under Section 138 of N.I.Act.
5. After institution of the complaint, the Trial Court
recorded the sworn statement of the complainant, took
cognizance under Section 190(1)(a) of Cr.P.C., secured
the presence of the accused and recorded plea of accused;
accused pleaded not guilty and claimed to be tried.
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6. The complainant in order to prove his case
examined himself as PW1 and got marked eight
documents as per Exs.P1 to P8.
7. In order to rebut the claim of the complainant,
accused himself examined as DW1 and he relied upon 2
documents as per Exs.D1 and D2.
8. On the basis of the oral and documentary
evidence, the Trial Court convicted the accused for the
offence punishable under Section 138 of the N.I.Act and
sentenced the accused to pay the fine of Rs.75,000/- to
the complainant and in default to pay the fine amount, the
accused shall undergo simple imprisonment for the period
of three months.
9. Aggrieved by the judgment of conviction and
sentence passed by the Trial Court, the accused preferred
Criminal Appeal No.17/2009 before the Second Additional
District and Sessions Judge at Chikkamagaluru. In turn,
the Appellate Court confirmed the order of Trial Court,
thus, dismissed the appeal. Now, aggrieved by order of
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both the Courts, the accused filed this revision petition
contending that judgment of conviction and order on
sentence passed by the Trial court is not in accordance
with law; the complainant has failed to prove the
requirement of Section 138 of N.I. Act, as accused
disputed the cheque in question, infact it was issued in
favour of one Rajesh and he never issued the cheque to
the complainant. It is contended that the transaction was
held in the year 2010 and the cheque was issued towards
security of the transaction held between the accused and
one Rajesh for a sum of Rs.45,000/-, but the complainant
has misused the cheque and presented the same, for
encashment.
10. It is further contended that the amount was
borrowed from one Rajesh Bhat long back and this fact is
not disputed. Therefore, the accused is not liable to pay
any debt either to the complainant or to the Rajesh Bhat
and hence, there is no legally enforceable debt or liability
due and payable by the accused to the complainant, but
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the Trial Court as well as the First Appellate Court have
not considered these factual aspects and legal position,
proceeded to convict the accused for the offence
punishable under Section 138 of the N.I. Act. On all these
grounds, the learned counsel for the petitioner prays to
allow the petition.
11. Learned counsel for the respondent submitted
that both the courts have given concurrent findings and
the accused was convicted for the offence under Section
138 of the N.I. Act. The complainant has proved his case
beyond reasonable doubt and therefore, both the Courts
have drawn presumption under Section 138 of Negotiable
Instrument Act. The learned counsel for the respondent
submits that if the loan was discharged in the year 2010
itself, the accused ought to have issued legal notice to the
complainant and insist for return of cheque, but the
accused failed to do so. Further, if the accused had
discharged the loan in question, he would have issued
legal notice or lodge the complaint against one Rajesh
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Bhat for misusing of the cheque in question. Hence, the
learned counsel justified the judgment of conviction and
sentence passed by the Trial Court as well as the First
Appellate Court and thus prayed for dismissal of the
revision petition.
12. On the basis of the above submissions made by
the parties to the lis, the points that would arise for
Court's consideration are as under:
(1) Whether the revision petitioner proved
that there is apparent error on the face of
the record in the judgment of the Trial
Court as well as the First Appellate Court
in convicting the accused for the offence
punishable under Section 138 of the
Negotiable Instruments Act?
(2) Whether the judgment of conviction and
sentence passed by the Trial Court as
well as the First Appellate Court is
perverse and calls for interference?
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13. Admittedly, the complainant filed a private
complaint under Section 200 of Cr. P.C. against the
accused for the offence punishable under Section 138 of
the Negotiable Instruments Act. In order to prove his case,
the complainant himself examined as PW1 and reiterated
the complaint averments in his chief examination and in
support of his oral evidence, he has relied on Ex.P1-
cheque issued by the accused for a sum of Rs.50,000/-,
Ex.P1(a) is the signature of the accused, Exs.P2 and P3
are the bank endorsements, Ex.P4 is the legal notice
issued by the complainant to the accused, wherein, the
complainant had called upon the accused to pay the
amount due under the cheque. Ex.P5 is the postal receipt,
for having issued legal notice to the accused and Ex.P6 is
the certificate of posting, Ex.P7 is the postal
acknowledgment, it shows that the legal notice issued to
the accused was served upon him. Ex.P8 is the reply
notice issued by the accused to the counsel for the
complainant. On perusal of the material on record, the
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complainant proved his case by oral and documentary
evidence. Now, the burden shifts on the accused.
14. To rebut the claim of the complainant, the
accused himself examined as DW1 and he relied upon
Ex.D1 CD and Ex.D2 returned postal cover.
15. On perusal of the oral testimony of PW1, DW1
and the documents relied upon by both the parties, it
appears that the accused had borrowed a sum of
Rs.50,000/- from the complainant and in consideration
thereof, he had issued Ex.P1-cheque for a sum of
Rs.50,000/- and on 02.08.2010, the complainant
presented the said cheque for encashment through CKG
Bank, Koppa Branch and the cheque was dishonored for
the reason "funds insufficient" in the account of the
accused. Inspite of issuance of legal notice as per Ex.P4,
accused failed to repay the said amount due under Ex.P1
cheque. However, the accused had issued untenable reply
legal as per Ex.P8.
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16. In the instant case, the complainant has
produced the cheque in question and it is marked as
Ex.P1. The signature of the accused is also marked as
Ex.P1(a). The bank endorsements are also marked as
Exs.P2 and P3. On perusal of all these documents, it
clearly establishes that the accused has not disputed the
issuance of cheque and service of legal notice on him. As
per the presumption available under the NI Act, the
complainant has complied the legal requirements under
Section 138 of the Act. Now, the burden shifts on the
accused to disprove the case of the complainant.
17. On perusal of the evidence on record, the
accused has taken up the contention that the cheque was
issued to one Rajesh Bhat for different transaction and for
security of the said transaction, he had issued the cheque,
but the complainant by misusing the same, presented the
said cheque for encashment in the year 2010 by filling the
contents of Ex.P1-cheque and thereby he misused the
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cheque and therefore, the accused has taken such
contention.
18. Whenever, the execution of the negotiable
instrument is admitted, then, the Court may draw
presumption under Section 118 of N.I.Act and the Court
shall draw presumption under Section 138 of N.I Act in
favour of holder of negotiable instruments.
19. If cheque was issued in relation to other
transaction, it should be construed as the same was issued
towards present debt or present transaction and it was
issued towards legally enforceable debt.
20. In the instant case, the complainant has proved
that on the relevant date, he lent loan to the accused and
in consideration thereof, the accused issued cheque Ex.P1
in favour of the complainant. Further the accused has not
placed any material before the Court to prove under what
circumstances he issued cheque in favour of the
complainant. Further, the accused has taken up a
contention that he discharged the loan of one Rajesh Bhat
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and he never called upon the said Rajesh Bhat to return
the cheque in question, if he has discharged the loan in
complete, further he also failed to call upon the
complainant to return the cheque in question, as it was
not issued to him.
21. Learned counsel for the petitioner vehemently
contented that the complainant has misused the cheque
and has over written on the cheque leaf, particularly the
amount, date, etc., Where one person signs and delivers
to another, negotiable instruments either it is wholly blank
or nothing written thereon an incomplete negotiable
instruments, he thereby give prima facie authority to the
holder thereof to make or complete, as the case may be,
upon it negotiable instruments, for any amount satisfied
there under and not exceeding the amount covered by the
stamp.
22. The person so signing on the negotiable
instruments shall rely upon such instrument under Section
20 of the N.I.Act. Therefore, the complainant by invoking
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Section 20 of the N.I.Act filled up the cheque in question
and presented for encashment. Hence, the Trial Court as
well as the First Appellate Court drawn presumption under
Section 118 of N.I.Act as to consideration, as to debt, as
to time of acceptance, as to time of transfer and as to
stamps and that the holder in due course.
23. The burden lies on the accused to prove non-
existence of consideration which would lead to the Court to
disbelieve the non-existence of consideration either by
direct evidence or by probable defence to show that the
existence of consideration was improbable, doubtful or
illegal, but the accused has not produced any kind of
evidence to show that existence of consideration was
improbable, doubtful or illegal. Therefore, Ex.P1-cheque
was issued towards legally enforceable debt.
24. When once issuance of cheque is proved, the
presumption under Section 138 of N.I.Act would arise with
regard to consideration. But the accused has not
discharged the debt in question. Whether the accused has
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issued cheque for repayment of loan or as security or it
was discharged prior to the current transaction, makes no
difference under Section 138 of the N.I.Act. The legal
consequence reamaining same without any distinction.
25. Looking into any angle, the judgment of the
Trial Court as well as the First Appellate Court is in
accordance with law. The Trial Court as well as the First
Appellate Court have passed well reasoned orders. Hence
no interference is called for and there is no error on the
face of the record. Hence, I proceed to pass the following:
ORDER
i. The revision petition filed by the accused
is dismissed.
ii. The judgment of conviction and sentence
dated 22.12.2018 passed by the learned
Senior Civil Judge and JMFC, N.R.Pura,
Itinerate at Koppa in C.C.No.76/2018 (CC
No.476/2010) and judgment dated
01.08.2019 passed by the learned Second
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Additional District and Sessions Judge at
Chikkamagaluru in Criminal Appeal
No.17/2019 are hereby confirmed.
Sd/-
JUDGE
CH
