Smt. Jeevitha Karthikeyan vs M/S Manjunatha Food Products
2023 Latest Caselaw 1602 Kant

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                                                         CRL.RP No. 566 of 2019




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 27TH DAY OF FEBRUARY, 2023

                                             BEFORE
                        THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                          CRIMINAL REVISION PETITION NO. 566 OF 2019

                      BETWEEN:

                      SMT. JEEVITHA KARTHIKEYAN
                      W/O S KARTHIKEYAN
                      AGED ABOUT 34 YEARS
                      RESIDING AT NO.370, 2ND FLOOR
                      VENKATAREDDY NAGAR
                      1ST BLOCK, JAYANAGAR
                      BANGALORE-11
                                                             ...PETITIONER
                      (BY SMT. SHRUNGA SOMANNA, ADVOCATE FOR
                         SRI. SOMANNA .B .A, ADVOCATE)


Digitally signed by   AND:
RENUKAMBA K G
Location: High
Court of Karnataka    M/S MANJUNATHA FOOD PRODUCTS
                      RESIDING AT NO.402, 2ND MAIN
                      VENKATAREDDY NAGAR
                      1ST BLOCK, JAYANAGAR
                      BANGALORE-11
                      REPRESENTED BY ITS PROPRIETOR
                      MR. MUNIRAJU
                                                           ...RESPONDENT
                      (BY SRI. K. SUNDARAM, ADVOCATE)

                          THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C
                      PRAYING TO SET ASIDE THE JUDGMENT DATED
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                                           CRL.RP No. 566 of 2019




17.01.2019, PASSED BY THE 64TH ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, CCH-65, AT BENGALURU
IN CRL.A.NO.1013/2016 AND IN C.C.NO.15213/2014,
DATED 27.07.2016 PASSED BY THE 13TH A.C.M.M., AT
BENGALURU, AND ALLOW THE CRL.RP.

    THIS PETITION, COMING ON FOR FINAL HEARING
ALONG WITH IA NO.2/2019 FOR SUSPENSION OF
SENTENCE THIS DAY, THE COURT MADE THE
FOLLOWING:

                          ORDER

This revision is filed by accused challenging the

judgment of conviction and order of sentence passed

by XIII Addl. Chief Metropolitan Magistrate, Bengaluru

('trial Court' for short) in CC No. 15213/2014 Dated

27.07.2016 whereby the learned Magistrate has

convicted the accused/revision petitioner herein for

the offence punishable under Section 138 of the

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

and confirmed by LXIV Additional City Civil and

Sessions Judge (CCH-65), Bengaluru, ('Sessions

Judge/Court' for short), in Criminal Appeal

No.1013/2016 vide judgment dated 17.01.2019.

CRL.RP No. 566 of 2019

2. For the sake of convenience, the parties

herein are referred with the ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case

are that, the complainant and accused are known to

each other since several years; The husband of

accused- Jeevitha Karthikeyan and the Proprietor of

the complainant-Firm are family friends; During the

year 2011, the accused and her husband have jointly

purchased a house property at Kumaraswamy Layout

and at that time, they sought financial assistance

from the complainant to clear the house loan dues;

As per their request, the complainant has paid

Rs.6.00 Lakhs as hand-loan and the accused

promised to pay the same within 18 months, but did

not pay the same. When the complainant insisted for

repayment, the accused issued a cheque bearing

No.984871 dated 07.09.2014 drawn on State Bank of

India, Bannerghatta Road Branch, Bengaluru, in

CRL.RP No. 566 of 2019

favour of the complainant. When the said cheque was

presented, it was returned on the ground of

Insufficient Funds. Thereafter, a legal notice came to

be issued to the accused, but the accused did not

respond. Hence, the complainant filed a complaint

under Section 200 of Cr.P.C. against the accused

alleging that the accused has committed an offence

under Section 138 of the N.I.Act.

4. After recording the sworn statement, the

learned Magistrate has taken cognizance of the

offence and issued process against the accused. The

accused appeared before the learned Magistrate and

was enlarged on bail. she was also provided with

prosecution papers and she denied the accusation.

Then the complainant-Muniraju got examined himself

as PW.1 and placed reliance on Eight documents as

per Exs. P1 to P8. After conclusion of evidence of the

complainant, the statement of accused under Section

313 of Cr.P.C. was recorded to enable the accused to

CRL.RP No. 566 of 2019

explain the incriminating evidence appearing against

her in the case of prosecution. The case of accused

was of total denial. The accused herself was examined

as DW.1 and one witness on her behalf was examined

as DW.2. However, the accused did not choose to

produce any documentary evidence in support of her

contention.

5. After having heard the arguments and after

appreciating the oral as well as documentary

evidence, the learned Magistrate has convicted the

accused for the offence under Section 138 of the

N.I.Act by imposing fine of Rs.8.00 Lakhs with default

clause and further directed that Rs.7,95,000/- shall

be paid by way of compensation to the complainant.

Being aggrieved by this judgment of conviction and

order of sentence, the accused has approached the

learned Sessions Judge in Criminal Appeal

No.1013/2016 and the learned Sessions Judge after

re-appreciating the oral as well as documentary

CRL.RP No. 566 of 2019

evidence, has dismissed the appeal by confirming the

order passed by the learned Magistrte. Being

aggrieved by the concurrent findings of both the

Courts below, the petitioner/accused is before this

Court.

6. Heard the arguments advanced by the

learned counsel for the revision petitioner/accused

and the learned counsel for respondent/complainant.

Perused the records.

7. Learned counsel for the petitioner/accused

would contend that, both the Courts below have

committed error in not appreciating the factual

aspects and failed to note that there was no financial

transaction between the complainant and the

accused. He would also contend that, there is no

explanation on the part of the complainant regarding

Ex.P1 and his financial status is also not established.

It is also contended that the defence set-up by the

accused was not properly appreciated by both the

CRL.RP No. 566 of 2019

Courts below and hence, he would contend that both

the Courts below have committed error in convicting

the accused and hence, he sought for allowing the

revision by setting aside the impugned judgment

passed by both the Courts below by acquitting the

petitioner/accused.

8. Per contra, the learned counsel for the

respondent would support the judgment of conviction

passed by the trial Court and confirmed by the First

Appellate Court. He would contend that, the cheque is

admitted and it belongs to account of accused, and it

bears signature of the accused and therefore, there is

presumption in favour of the complainant under

Section 139 of the N.I. Act. He would also contend

that the accused has failed to rebut the said

presumption and further, the petitioner/accused

herself has taken inconsistent stands and the defence

taken by the accused is not probable one and hence,

he would contend that there is no material to

CRL.RP No. 566 of 2019

entertain this revision petition and hence, sought for

dismissal of this revision.

9. Having heard the arguments and perusing

the records, now the following point would arise for

my consideration:-

"Whether the revision petitioner proves that both the Courts below have committed error by convicting the accused and the judgment of conviction and order of sentence passed by both the Courts below are erroneous, arbitrary and capricious so as to call for any interference."

10. According to the complainant, the accused

has availed financial assistance of Rs.6.00 Lakhs from

the complainant in order to clear house loan and in

discharge of the said debt, the disputed cheque under

Ex.P2 was issued. There is no dispute of the fact that

the cheque belongs to the accused and it bears her

signature. There is also no dispute of the fact that

the cheque was presented and it was bounced. The

contention of the accused is that, there was no

CRL.RP No. 566 of 2019

transaction between herself and the complainant, and

she is not liable to pay any debt. However, since the

complainant is the holder of the cheque in due course,

the presumption under Section 139 of N.I. Act is in

favour of the complainant and it is for the accused to

rebut the said presumption by leading cogent

evidence.

11. The complainant was examined as PW.1

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

complaint allegations. Though PW.1 was cross-

examined at length, nothing was elicited so as to

impeach his evidence. In the cross-examination, it is

suggested to PW.1 that, in order to clear the house

loan, the husband of accused has availed the loan.

However, the complainant admitted this aspect, but

states that both accused and her husband together

have availed hand-loan from him. It is suggested

that, Blank Cheque was given to the husband of

Accused in order to clear the loan amount of the Bank

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CRL.RP No. 566 of 2019

and the same was taken forcibly and the said

suggestion came to be denied.

12. During the course of arguments, all along it

is contended that the relationship between the

accused and her husband are strained and the

husband of accused has colluded with the complainant

and handed-over the cheque. But, DW.1 who was

examined, has given a different version, wherein it is

stated that she is handed over the cheques to her

husband in order to submit it to the bank for

repayment of the loan and the same was taken

forcibly by one Babu, who was working in the

complainant-Firm and by misusing it, the complaint

came to be lodged. But, the said fact was not

substantiated by the complainant except formal

statement. No complaint was lodged in this regard.

But, DW.2, who was examined on behalf of accused

has given a different version, who claims to be an

eye-witness for taking cheque forcibly from the

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CRL.RP No. 566 of 2019

pocket of husband of accused. In his examination-in-

chief, he claims that the complainant himself forcibly

took the cheque from the pocket of her husband, but

DW.1 gives a statement saying that, one Babu has

taken the cheque. There is no evidence as to who is

Babu. The complainant has taken inconsistent stand

in this regard. If at all she had issued cheque

towards repayment of bank loan, she could have

issued it to the concerned Bank towards repayment of

loan and there was no need for her to issue a blank

cheque as claimed by her. The accused is required to

rebut the presumption on the basis of preponderance

of probabilities and mere denial or putting suggestion

does not amount to rebuttal of presumption. The

defence of accused should be more probable. But, in

the instant case, no such evidence is forthcoming.

Further, if that cheque was taken forcibly, nothing

prevented the accused from lodging complaint in

this regard. Hence, the defence set-up by the

accused cannot be accepted at any stretch of

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CRL.RP No. 566 of 2019

imagination. The accused has failed to rebut the

presumption available in favour of the complainant.

There is no dispute regarding the cheque belongs to

the accused and it bears her signature. During the

course of arguments, the accused tried to make-out a

case of challenging financial status of the

complainant. But, the entire cross-examination

reveals that the financial status of the complainant

was not at all denied or challenged. On the contrary,

the accused/DW.1 admitted that, her husband availed

loan from complainant. Under such circumstances,

both the Courts below have appreciated the oral and

documentary evidence in proper perspective and have

rightly come to the conclusion that the accused has

issued a cheque to the complainant towards legally

dischargeable debt and the same was bounced.

13. Much arguments have been advanced

regarding notice, which has no relevancy and both

the Courts below have in detail considered these

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CRL.RP No. 566 of 2019

aspects and have rightly convicted the accused. No

illegality or infirmity is found in the judgment of the

trial Court, which is confirmed by the Appellate

Court, so as to call for any interference by this Court.

      14.    Looking       to       the       above     facts     and

circumstances,       the     point     under     consideration     is

answered in the negative and accordingly, I proceed

to pass the following:-

ORDER

i) The petition is dismissed.

ii) the judgment of conviction and order of sentence dated 27.07.2016 passed by XIII Addl. Chief Metropolitan Magistrate, Bengaluru in CC No. 15213/2014 and affirmed by LXIV Additional City Civil and Sessions Judge (CCH-65), Bengaluru, in Criminal Appeal No.1013/2016 vide judgment dated 17.01.2019 stand confirmed.

The Registry is directed to send back the TCRs. to the concerned Courts below with a copy of this order, with a direction to the learned Magistrate to

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CRL.RP No. 566 of 2019

secure the presence of accused/revision petitioner herein for the purpose of serving sentence and collection of fine/compensation amount.

In view of dismissal of this revision petition,

IA No.2/2019 filed for Suspension of Sentence does

not survive for consideration and accordingly, it

stands disposed of.

Sd/-

JUDGE

KGR*