S.P. Rajkumar vs M.J. Prabhakar
2023 Latest Caselaw 4595 Kant

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                                   CRL.RP No. 114 of 2016


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 18TH DAY OF JULY, 2023
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
    CRIMINAL REVISION PETITION NO. 114 OF 2016
BETWEEN:
S P RAJKUMAR
S/O. LATE PUTTARANGAIAH
AGED ABOUT 48 YEARS
R/A I.V.R.I STAFF QUARTERS
HEBBAL, BANGALORE - 24.

                                              ...PETITIONER
(BY SRI. PRASANNA D.P, ADVOCATE)

AND:
M J PRABHAKAR
D/O. LATE. JAVARAIAH
AGED ABOUT 55 YEARS
R/A NO.70, PIPE LINE ROAD
B.S.K. I STAGE, SRINAGAR
BANGALORE - 50.

                                            ...RESPONDENT
(BY SRI. BHASKAR BABU H J, ADVOCATE)

     THIS CRL.RP IS FILED U/S. 397 R/W SECTION 401
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT PASSED BY
THE LXVI ADDITIONAL CITY CIVIL AND SESSION JUDGE,
BANGALORE     CITY,  CCH-67,  DATED   27.11.2015 IN
CRL.A.NO.413/2015, BY CONFIRMING THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE PASSED BY THE XVIII
A.C.M.M, BANGALORE IN C.C.NO.15712/2011, VIDE ORDER
DATED 19-02-2015 AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 10.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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                                      CRL.RP No. 114 of 2016


                             ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 19.02.2015 in C.C.No.15712/2011 on

the file of the Court of XVIII Additional Chief Metropolitan

Magistrate, Bangalore and its confirmation judgment and order

dated 27.11.2015 in Crl.A.No.413/2015 on the file of the Court

of the LXVI Additional City Civil and Sessions Judge, Bangalore

City seeking to set aside the concurrent findings recorded by

the Courts below, wherein the petitioner / accused is convicted

for the offence punishable under Section 138 of the Negotiable

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

2. The petitioner is the accused before the Trial Court

and appellant before the Appellate Court.

Brief facts of the case are as under:

3. It is the case of the complainant/respondent that,

the complainant and the petitioner/accused are known to each

other. Due to the said acquaintance, in the third week of March

2010, the petitioner had asked the respondent to pay a sum of

Rs.4,50,000/- to meet his urgent financial commitments and

assured that he would pay interest of 2% per month for the

said amount and also further assured that, he would repay the

CRL.RP No. 114 of 2016

said amount within seven months. It is further stated that,

when the petitioner did not repay the amount within the

stipulated period, the respondent insisted for repayment of the

said amount. The petitioner issued a cheque bearing

No.992364 dated 07.01.2011 drawn on Vijaya Bank,

Ganganagar Branch, Bengaluru for the above said sum. When

it was presented for encashment, it was returned with an

endorsement as 'Insufficient Funds' on 11.01.2011. It is stated

that, in spite of legal notice having been received by the

petitioner, neither he replied the said notice nor repaid the said

amount. Hence, a complaint came to be filed before the

Magistrate having jurisdiction.

4. The Trial Court after appreciating the oral and

documentary evidence and also after raising the presumption

envisaged under Section 139 of the N.I Act, convicted the

petitioner for the offence under Section 138 of the N.I Act and

sentenced the petitioner to pay fine of Rs.4,70,000/-, in default

of payment of fine, ordered to undergo simple imprisonment for

one year. Being aggrieved by the same, the petitioner

preferred an appeal before the Appellate Court, the Appellate

Court dismissed the appeal by confirming the judgment of

conviction passed by the Trial Court.

CRL.RP No. 114 of 2016

5. Heard Sri.D.P.Prasanna, learned counsel for the

petitioner and Sri.Bhaskar Babu H.J, learned counsel for the

respondent.

6. It is the submission of the learned counsel for the

petitioner that, the defence set up by the petitioner was not

considered by the Courts below. Even though, he is consistent

in his evidence that, he has borrowed hand loan of Rs.50,000/-

from the respondent. The respondent after deducting interest

of Rs.1,500/-, paid the amount of Rs.48,500/-. It is the

contention of the petitioner that, at the time of borrowing the

said loan, he had issued the cheque which is in dispute in this

case as security for the said amount.

7. It is further submitted that, in spite of having

cleared the loan amount, the respondent did not return the

cheque and misused the said cheque and filed a criminal case

against the petitioner.

8. It is further submitted that, even though the

respondent failed to prove that, he had lent the said amount to

the petitioner, the Courts below grossly erred in arriving at a

conclusion that, the petitioner is guilty of the offence as stated

supra. It is further stated that, when the lending capacity of

CRL.RP No. 114 of 2016

the respondent was questioned, the burden or onus of proof

would be shifted on the complainant / respondent to rebut the

same. The respondent has not rebutted the presumption by

leading any cogent evidence. It is further stated that, even

though, it is alleged that, the respondent had lent the amount

as stated in the cheque, it was not reflected in the income tax

returns of the respondent, hence, the respondent failed to

prove that, he had lent the amount and it was a legally

enforceable debt.

9. It is further submitted that, the Courts below failed

to appreciate the evidence properly and also failed to accept

the defence of the petitioner and convicted the petitioner which

requires to be set aside.

10. Per contra, the learned counsel for the respondent

justified the concurrent findings of facts and also law and

submits that, when the cheque and signature are admitted by

the petitioner, it is presumed that, it was issued for the

discharge of any debt or other liability. However, it is a

rebuttable presumption.

11. It is further submitted that, mere denial of the

transaction may not be enured to the benefit of the petitioner,

CRL.RP No. 114 of 2016

unless, he produces the cogent evidence in that regard. It is

also further stated that, the ingredients of Section 138 of N.I

Act has been complied with by the respondent in accordance

with law and the said transaction has also been proved by

producing cogent documents. All the documents have been

marked by the Trial Court and it was accepted by the Appellate

Court and the conviction recorded by the Trial Court was

confirmed by the Appellate Court. Such being the fact,

interference with the concurrent findings, when there is no

presumption under the provision of the Act, may not be

warranted. Having submitted thus, the learned counsel for the

respondent prays to dismiss the petition.

12. Having heard the learned counsel for the respective

parties and also perused the concurrent findings of the Courts

below, the points which arise for my consideration are:

i) Whether the concurrent findings recorded by

the Courts below in convicting the petitioner

for the offence under Section 138 of N.I Act

are sustainable?

ii) Whether the petitioner has made out grounds

to interfere with the concurrent findings ?

CRL.RP No. 114 of 2016

13. Considering the scope of the Revisional Jurisdiction,

it is necessary to have a cursory look upon the documents and

the evidence to arrive at a conclusion as to whether any error

or perversity, if any, committed by the Courts below in

recording the conviction of the petitioner.

14. In order to avoid the repetition of the facts, it is

relevant to refer the evidence of PW.1. According to him, the

petitioner had requested to pay a sum of Rs.4,50,000/- in the

year 2010 and in lieu of the same, he had issued a cheque for

the said amount. The cheque and signature were admitted by

the petitioner, however, he denied the transaction. It is

needless to say that, once the execution of the cheque,

signature is admitted, it is presumed that, it was issued for

legally enforceable debt or liability unless the contrary is

proved. The Trial Court and the Appellate Court rightly raised

the presumption.

15. It is the defence of the petitioner that, he had

borrowed a sum of Rs.50,000/- in the year 2003, the

respondent after deducting Rs.1,500/- had paid Rs.48,500/-, in

the said transaction, it is stated that, this cheque was issued as

a security. The evidence of DW.1 indicates that, on 06.11.2003,

there was a transaction and the respondent had paid the

CRL.RP No. 114 of 2016

amount through account payee cheque to the account of the

petitioner for a sum of Rs.48,500/- and it was honoured. It is

further stated that, he denied the transaction between himself

and the respondent in the year 2006. However, the respondent

has produced Ex.P12-legal notice stated to have been issued to

the petitioner herein in respect of another cheque bearing

No.580189 dated 16.12.2007 for a sum of Rs.3,85,000/-.

16. When the petitioner deposed that, he had not

borrowed a sum of Rs.4,50,000/- by the respondent and

conceded that he borrowed a sum of Rs.50,000/- in the year

2003 and he had issued a cheque as security, the same had

been misused by the respondent, the respondent had to prove

that, the amount stated in the cheque was paid to the

petitioner by producing cogent evidence. On perusal of the

entire evidence, the respondent neither produced any bank

statement for having paid Rs.4,50,000/- to the petitioner nor

produced any income tax returns to substantiate that, the

amount was paid to the petitioner. When the complainant

failed to discharge the initial burden that amount was paid to

the petitioner, the Courts below ought not to have raised the

presumption that, the cheque was issued for discharge of the

legally enforceable debt or liability.

CRL.RP No. 114 of 2016

17. It is also relevant to refer that, the petitioner had

raised the defence that, the respondent had no financial

capacity to lend the amount. When such a contention was

taken by the petitioner, the respondent should have proved

that, he had paid the amount as stated in the cheque.

18. Now, it is relevant to refer the judgment of the

Hon'ble Supreme Court in the case of BASALINGAPPA v.

MUDIBASAPPA1 paragraph No.26, which reads thus:

"26. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of PW 1, when the specific question was put that cheque was issued in relation to loan of Rs 25,000 taken by the accused, PW 1 said that he does not remember. PW 1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of Rs 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs 4,50,000 to Balana Gouda towards sale consideration. Payment of Rs

(2019) 5 SCC 418

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CRL.RP No. 114 of 2016

4,50,000 being admitted in the year 2010 and further payment of loan of Rs 50,000 with regard to which Complaint No. 119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ext. D-2, there was burden on the complainant to prove his financial capacity. In the year 2010- 2011, as per own case of the complainant, he made payment of Rs 18 lakhs. During his cross- examination, when financial capacity to pay Rs 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts."

19. On reading of the dictum of the Hon'ble Supreme

Court, it is clear that, during the cross-examination of the

respondent, when financial capacity to pay the amount was

questioned, there was no satisfactory reply given by the

respondent. The Courts below failed to appreciate that, the

petitioner has not proved his financial capacity to lend the

amount stated in the cheque. Be that as it may, the Courts

below failed to appreciate the evidence of PW.1 and DW.1

properly and convicted the petitioner which is erroneous and

illegal.

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CRL.RP No. 114 of 2016

20. In the light of the observations made above, the

points which arose for my consideration are answered as

under:-

     Point No.(i)       - "Negative"

     Point No.(ii)      - "Affirmative"

21. Hence, I proceed to pass the following:-

ORDER

(i) The Criminal Revision Petition is allowed.

     (ii)       The   judgment      of    conviction    and   order   of

                sentence     dated        19.02.2015      passed      in

C.C.No.15712/2011 on the file of the Court of

XVIII Additional Chief Metropolitan Magistrate,

Bangalore and judgment and order dated

27.11.2015 passed in Crl.A.No.413/2015 on the

file of the Court of the LXVI Additional City Civil

and Sessions Judge, Bangalore City (CCH-67),

are set aside.

(iii) The petitioner is acquitted for the offence under

Section 138 of the N.I Act.

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CRL.RP No. 114 of 2016

(iv) Bail bonds executed, if any, stand cancelled.

(v) The Trial Court is directed to release the

deposited fine amount, if any, to the petitioner

after deducting a sum of Rs.10,000/- which is

adjustable to the Exchequer of the State.

(vi) In view of disposal of main matter, I.A

No.1/2020 does not survive for consideration

and the same is also disposed of.

Sd/-

JUDGE

UN, Bss