Karnataka High Court

Dr. Rajashekhar S/O Sharanappa ... vs Sri Mahadev Leasing Finance Co on 20 January, 2023

Bench: V Srishananda

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 20TH DAY OF JANUARY, 2023

                       BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

  CRIMINAL REVISION PETITION No.200044/2022
BETWEEN:

DR. RAJASHEKHAR
S/O SHARANAPPA LAKSHETTY
AGED ABOUT 50 YEARS,
OCC: MEDICAL PRACTITIONER
R/O H.NO.2-4-111 OPPOSITE
PANDURANG MANDIR,
CHABRA ROAD, BIDAR
                                           ... PETITIONER
(BY SRI YASHAS DIKSHIT, ADVOCATE FOR
 SRI GANESH S. KALABURGI, ADVOCATE)

AND:

SRI MAHADEV LEASING FINANCE CO.,
THROUGH ITS MANAGING PARTNER
SRI. SHIVASHARANAPPA B. CHIGONI
114, BASAVA PRABHU COMPLEX,
KALABURAGI
                                          ... RESPONDENT

       THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SECTION 401 OF CR.P.C., PRAYING TO SET
ASIDE THE ORDER DATED 22.08.2022 PASSED IN CRIMINAL
APPEAL NO.78/2019 BY THE I-ADDL. DISTRICT AND SESSIONS
JUDGE AT KALABURAGI, CONFIRMING THE ORDER DATED
17.10.2019 PASSED IN C.C.NO.2450/2012 ON THE FILE OF THE
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COURT OF IV-ADDL. CIVIL JUDGE AND JMFC AT KALABURAGI
INSOFAR AS THE PETITIONER IS CONCERNED, AND TO PASS
ANY OTHER APPROPRIATE ORDERS, AS THIS COURT DEEMS
FIT.


        THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:


                          ORDER

Heard Sri Yashas Dikshit, learned counsel for the

petitioner.

2. The present revision petition is filed against

the judgment of conviction passed by IV-Additional

Civil Judge and JMFC, Kalaburagi, in

C.C.No.2450/2012 dated 17.10.2019 confirmed in

Criminal Appeal No.78/2019 on the file of I-Additional

District and Sessions Judge, Kalaburagi, on

22.08.2022.

3. Brief facts which are necessary for disposal

of the present petition are as under:

Complaint came to be filed under Section 200 of

Cr.P.C., against the revision petitioner for the offence

punishable under Section 138 of the Negotiable

Instruments Act, 1881 (for short, hereinafter referred

to as 'NI Act'). It is alleged that the complainant is a

registered partnership firm engaged in finance

business and the accused is the customer of the firm

and obtained loan of Rs.70,000/- agreeing to repay

the same with interest at 16% per annum, in the year

2004. It is contended that he was also guarantor for

one Sudhakar Patil. After availing the loan, he made

few payments towards clearance of loan and

subsequently, he became a chronic defaulter.

Repeated demands made by the complainant did not

yield any result and ultimately, the accused passed on

a cheque bearing No.290495 dated 24.01.2011 in a

sum of Rs.3,00,000/- drawn on Vijaya Bank, Udgir

Road Branch, Bidar, i.e., Rs.2,00,000/- towards his

outstanding loan amount with interest and a sum of

Rs.1,00,000/- towards the outstanding loan of

Sudhakar Patil who was also a loanee to whom the

accused stood as a guarantor. The said cheque on

presentation came to be dishonored with an

endorsement 'funds insufficient' on 25.01.2011. The

statutory notice was issued. Since there was no

compliance, the complaint came to be filed for the

offence punishable under Section 138 of the NI Act.

4. After receipt of summons, the accused

appeared before the learned Magistrate and did not

plead guilty. Therefore, the trial was held.

5. In order to prove the case, the complainant

got examined as PW.1 and relied on 24 documents

which were exhibited and marked as Exs.P1 to P24.

6. On conclusion of the evidence on behalf of

the complainant, the accused statement as

contemplated under Section 313 of Cr.P.C., was

recorded and the accused denied all the incriminating

circumstances. The accused did not offer any written

explanation nor adduced any defence evidence.

7. Thereafter, the learned Trial Magistrate

heard the parties and convicted the accused for the

offence punishable under Section 138 of the NI Act

and imposed a fine of Rs.3,20,000/- out of which,

Rs.3,10,000/- was ordered to be paid as

compensation to the complainant.

8. Being aggrieved by the same, the accused

preferred an appeal before the District Court in

Criminal Appeal No.78/2019. The learned District

Judge after securing the records and hearing the

parties, by judgment dated 22.08.2022 dismissed the

appeal.

9. Being aggrieved by the same, the accused

has preferred the present revision petition on the

following grounds:

x "The order impugned suffers from serious errors of law and facts and therefore, the same is liable to be set aside.

x Both the courts have failed to consider that the revision petitioner has not received the legal notice sent by the respondent. The respondent has failed to furnish any postal receipt of the legal notice being served on to the revision petitioner to verify the address it was sent to. The respondent in his private complaint, cross examination has admitted that he has not produced the postal acknowledgement of the legal notice being served on the revision petitioner. It is pertinent to note that Ex-P8 which is the endorsement given

by postal authority states "RL delivered on 10.02.2011" and no further information has been produced. Both the courts have failed to see that, the endorsement does provide information if the notice was served onto the revision petitioner, if so, there is no signature of the notice being accepted by the revision petitioner. The Apex Court in various judgments has held that mere issuance of notice is not sufficient but service onto the accused to be proved by the complainant under section 138(2) of the N.I Act. The respondent herein has failed to show the same, which is bad in law. Hence the order under revision is liable to be set aside.

x Both the courts below have failed to consider the fact that the respondent has failed to prove that the cheque issued by the revision petitioner

herein was in discharge of legal liability. The respondent in his cross examination has admitted that he has not produced any document to show that on the date of issuance of Cheque to by the revision petitioner, there was a legal liability or debt owed towards the respondent.

Furthermore, the respondent in his cross examination has also admitted that there was no liability on the revision petitioner to pay the amount of Rs.3,00,000/-. In light of the above admissions made by the respondent, the trail court and the first appellate Court ought to have dismissed the claim of the respondent. Hence the order under revision is liable to be set aside.

x Both the trial and the appellate court have observed that there is presumption under section 118 of the N.I Act against the revision petitioner

and in favour of the respondent. However, the respondent has failed to prove that there was legally recoverable debt on the part of the revision petitioner. The respondent in his cross examination has admitted that he has not produced documents to show that there was legally recoverable debt against the revision petitioner. Further, in the same cross examination, the respondent has admitted that there was no legally recoverable debt on the part of the revision petitioner. The respondent having failed to establish that there is a debt and the details of when or who has signed the cheque, there lies no presumption against the revision petitioner. Hence, the reasoning of presumption is not correct and the order under revision is liable to set aside.

x The respondent in his cross examination has admitted that he has written the date and amount on the cheque. Further the respondent conveniently changes his statement stating that he does not know who has written the contents of the cheque. There is stark inconsistency in the admission of the respondent which does show that the cheque was not issued by the revision petitioner against any legally recoverable debt. The onus is on the respondent to prove the same, having failed to do so, the judgment rendered by both the courts suffer serious error, hence the same is liable to be set aside.

x During the pendency of the appeal, the revision petitioner has filed an I.A No.II seeking permission to produce USB pen drive with CD pertaining telephonic conversation between the respondent and the revision

petitioner, where conversation of loan not being availed by the revision petitioner could be established. The appellate court without considering the overall evidence on record and in light of admissions made by the respondent in the cross examination, erroneously dismissed the application, which has caused substantial injustice to the revision petitioner. Hence the order under revision is liable to be set aside.

x Both the courts have failed to appreciate the fact that the revision petitioner could not have issued a common single cheque for payment of the alleged loan availed by the revision petitioner and that of one Sudhakar Patil. In such situation where the revision petitioner has rebutted the presumption, it is for the respondent herein to prove that under what circumstance the revision

petitioner issued the alleged cheque for payment of debt. The revision petitioner has raised reasonable doubt with respect to probability of issuing the common cheque to the respondent, the burden to prove the same lies on the respondent. Hence the impugned order under revision is liable to be set aside.

x Both the courts have failed to appreciate the oral and documental evidence on record in the right perspective, hence the order under revision is liable to be set aside."

10. Learned counsel for the petitioner

reiterating the grounds urged in the revision petition

vehemently contended that both the Courts have

wrongly convicted the accused and there is an error of

jurisdiction in passing the said judgment and

therefore, he sought for allowing the revision petition.

11. Perused the records. Since the accused

has not stepped into the witness box and adduced

evidence, following the dictum of the Hon'ble Supreme

Court in the case of Indian Bank Association &

Ors. Vs. Union of India & Ors. reported in AIR

2014 SC 2528, in the absence of contra evidence on