Sri R Premkumar Since Dead, By Lrs 1 ... vs Sri Ramesh Chand Bafna
2023 Latest Caselaw 1718 Kant

                                                    -1-

                                                          CRL.RP No. 534 of 2017



                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                              DATED THIS THE 7TH DAY OF MARCH, 2023
                                               BEFORE
                           THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                                      CRL.R.P. No. 534 OF 2017
                   BETWEEN:
                   1.   SRI R. PREMKUMAR
                        SINCE DEAD, BY LRS

                   1(a)    P. RAGHAVENDRA
                           S/O LATE PREMKUMAR
                           AGED ABOUT 39 YEARS
                           NO 22, I MAIN, I CROSS
                           SARASWATHIPURAM
                           HULIMAVU, BIKKAHALLI
                           BANGALORE - 76.
Digitally signed
by B A
KRISHNA            1(b)    HARISH P
KUMAR
Location: High
                           S/O LATE PREM KUMAR
Court of                   AGED ABOUT 30 YEARS
Karnataka
                           R/AT G-1, S.V. SAROVARA
                           17 E CROSS, 15TH MAIN
                           J.P. NAGAR, 5TH PHASE
                           BANGALORE - 78.
                                                                   ...PETITIONERS
                   (BY SRI VIJAYA KRISHNA BHAT M, ADV.)
                   AND:
                   SRI RAMESH CHAND BAFNA
                   AGED ABOUT 47 YEARS
                   S/O J.D. BAFNA
                   R/AT NO 29, SOUTH END ROAD
                   SHESHADRIPURAM
                   BENGALURU - 560 020.
                                                                   ...RESPONDENT
                   (BY SRI M.B. RAVIKUMAR, ADV.)
                         THIS CRL.R.P. IS FILED U/S.397 CR.P.C PRAYING TO SET
                   ASIDE THE ORDER DATED 10.4.2017 PASSED BY THE LVIII
                   ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN
                   CRL.A.NO.365/2016 AND CONSEQUENTLY SET ASIDE THE ORDER
                   DATED 4.3.2016 PASSED BY THE XX A.C.M.M., BENGALURU IN
                   C.C.NO.5975/2013 AND CONSEQUENTLY DISMISS THE COMPLAINT.
                                -2-

                                        CRL.RP No. 534 of 2017



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

                            ORDER

This criminal revision petition is filed by the accused

challenging the judgment and order of conviction and sentence

dated 04.03.2016 passed by the Court of XX Addl. Chief

Metropolitan Magistrate, Bengaluru, in C.C.No.5975/2013 and

the judgment and order dated 10.04.2017 passed by the Court

of XLVIII Addl. City Civil & Sessions Judge, Bengaluru, in

Crl.A.No.365/2016.

2. Heard the learned Counsel for the petitioner and the

learned Counsel for the respondent.

3. During the pendency of this revision petition, the

original petitioner/accused had died and his sons have come on

record as his legal representatives.

4. The original petitioner was charged for the offence

punishable under Section 138 of the Negotiable Instruments

Act, 1881 (for short, 'the Act') before the Trial Court. The

respondent/complainant had filed a private complaint against

the original petitioner under Section 200 Cr.PC alleging that the

petitioner had borrowed a sum of Rs.2,80,000/- from him

CRL.RP No. 534 of 2017

towards his financial necessities on 21.08.2012 and towards

repayment of the said amount, he had issued a cheque bearing

No.199572 dated 26.12.2012 drawn on State Bank of India,

Jayanagar Branch, Bengaluru and the said cheque on

presentation for realization was dishonoured on the ground

'funds insufficient'. On receipt of the banker's memo to the said

effect, the respondent/complainant had got issued a legal

notice to the petitioner which was duly served on him and

inspite of the same, he had not paid the amount as demanded

in the said notice nor he had replied to the said notice. It is

under these circumstances, the respondent had filed the private

complaint against the petitioner for the offence under Section

138 of the Act.

5. In the said proceedings, the petitioner appeared before

the Trial Court and pleaded not guilty, and therefore, in order

to prove his case, the respondent/complainant had examined

himself as PW-1 and got marked 7 documents as Exs.P-1 to

P-7. The petitioner who had denied the incriminating

circumstances against him available on record in his statement

under Section 313 Cr.PC, also led defence evidence and

examined himself as DW-1 and got marked two documents as

CRL.RP No. 534 of 2017

Exs.D-1 & D-2. It is the specific defence of the petitioner that

he had availed a loan of Rs.8 lakhs from the respondent for

purchasing two lorries and during the course of the said

transaction, he had issued three cheques as security to the

respondent. It is also his specific case that since he had not

paid the loan dues borrowed by him from the respondent for

purchase of lorries, the respondent had seized the lorries and

brought the same for sale and one of the cheques issued

towards security was misused by the respondent. The Trial

Court after hearing the arguments addressed on both sides by

its judgment and order dated 04.03.2016 had convicted the

petitioner for the offence under Section 138 and sentenced him

to pay fine of Rs.4,10,000/- and in default to undergo simple

imprisonment for a period of three months. The appeal filed by

the petitioner against the said judgment and order of conviction

and sentence was dismissed by the Appellate Court on

10.04.2017, and therefore, the petitioner is before this Court.

6. Learned Counsel for the petitioner submits that it is

highly improbable that the respondent who is a financier would

have given a hand loan to the petitioner, who was a defaulter

in the earlier loan transaction. He submits that the second loan

CRL.RP No. 534 of 2017

transaction is not supported by any document except Ex.P-1 -

cheque in question. He also submits that a stray statement

during the cross-examination of PW-1 cannot itself prove the

issuance of cheque by the petitioner. He submits that since the

original accused is dead, his legal representatives are not liable

to pay the fine or undergo default sentence though they have a

right to challenge the order of conviction passed against the

accused. He, accordingly, prays to allow the petition.

7. Per contra, learned Counsel for the respondent has

argued in support of the impugned judgment and order of

conviction and sentence passed by the courts below and

submits that the courts below after appreciating the oral and

documentary evidence available on record, have found the

petitioner guilty of the alleged offence and such a concurrent

finding recorded by the courts below cannot be interfered by

this Court in exercise of its revisional powers unless it is proved

that the judgment and order suffers from perversity or

illegality. He, accordingly, prays to dismiss the petition.

8. The respondent/complainant in order to prove his case

before the Trial Court had examined himself as PW-1 and got

marked the cheque in question as Ex.P-1 and the signature of

CRL.RP No. 534 of 2017

the petitioner in the said cheque was marked as Ex.P-1(a). The

legal notice issued to the petitioner was marked as Ex.P-3 and

the postal acknowledgment wherein the signature of the

petitioner was found for having received the said legal notice is

marked was Ex.P-5. Ex.P-7 is Form no.30 signed by the

petitioner for sale of the lorries which were seized by the

respondent and the signature of the petitioner in the said

document was marked as Ex.P-7(a). The petitioner has not

seriously disputed the writings found in the cheque and also the

signature found in the said cheque. It is also not disputed that

the cheque has been drawn from the account of the petitioner

maintained by him in a scheduled bank, and therefore, there is

a presumption against the petitioner under Section 139 of the

Act that the instrument has been drawn by the petitioner

towards discharge of his legally recoverable debt. Unless the

petitioner/accused rebuts such presumption, he is liable to be

punished for the offence under Section 138 of the Act.

9. The petitioner has taken a specific defence that the

cheque in question was issued as security towards the loan

transaction which he had availed from the respondent in the

year 2011. However, during the course of his cross-

CRL.RP No. 534 of 2017

examination, the petitioner who was examined as DW-1 has

stated that he had gone to the office of the respondent on

26.12.2012 and handed over the cheque in question to him.

Though he has tried to clarify that the said cheque was issued

not towards repayment of the amount borrowed by him, but

towards the transaction in respect of the two lorries, the said

explanation does not inspire the confidence of the court. The

lorries in question were brought for sale prior to 26.12.2012

and the same is evident from Ex.P-7 - Form no.30 which is

dated 20.12.2012. Therefore, as on the date of the petitioner

handing over the cheque in question to the respondent, the

lorries were already brought for sale and it is the specific case

of the petitioner that the proceeds of the sale were adjusted by

the respondent towards the loan due by him, and therefore,

there was no occasion for the petitioner to hand over the

cheque on 26.12.2012 towards repayment of the dues with

regard to the loan transaction in respect of the lorries.

10. Further, undisputedly, the petitioner had received the

legal notice issued by the respondent calling upon him to pay

the amount covered under the cheque which was issued by him

towards repayment of hand loan of Rs.2,80,000/- borrowed in

CRL.RP No. 534 of 2017

the month of August 2012. Inspite of receipt of the legal notice,

the petitioner did not choose to reply the same. If the

respondent had misused the cheques which were given as

security, the petitioner could have given a suitable reply to the

legal notice issued to him. After the cheque in question was

dishonoured by his banker, non-issuance of the reply remains

unexplained, and therefore, an adverse inference would have to

be drawn against the petitioner. Further, even according to the

petitioner, he had issued three blank cheques to the

respondent under the loan transactions which he had availed

for the purpose of purchasing of lorries. Even if it is assumed

that one of the cheques has been misused by the respondent,

undisputedly no action has been taken by the petitioner against

the respondent in respect of the two other cheques which

according to the petitioner is in the custody of the respondent.

Therefore, I am of the considered view that the defence put

forward by the petitioner is not a probable defence and as a

result, the presumption under Section 139 of the Act was not

rebutted by the petitioner.

11. The submission made by the learned Counsel for the

petitioner with regard to the liability of the legal representatives

CRL.RP No. 534 of 2017

to pay the fine imposed by the courts below or to undergo

default sentence, is not required to be considered by this Court

at this stage and it is always open to the petitioner to raise

such a contention in the event the complainant seeks to

execute the order of sentence passed by the courts below

against the legal representatives of the accused.

12. The Trial Court as well as the Appellate Court after

appreciation of oral and documentary evidence available on

record have recorded a concurrent finding of guilt against the

petitioner and have convicted him for the offence under Section

138 of the Act. I am of the considered view that the impugned

judgment and order of conviction and sentence passed by the

courts below are well reasoned and sound and do not suffer

from any illegality or irregularity which calls for interference by

this Court. Accordingly, I find no merit in this revision petition

and the same is, therefore, dismissed.

13. The amount, if any, deposited by the original accused

shall be refunded to the complainant.

Sd/-

JUDGE KK