Karnataka High Court
Sri Ekbal Ahamed vs Sri Basavaraju D S on 15 November, 2023
Bench: J.M.Khazi
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CRL.RP No. 499 of 2019
NC: 2023:KHC:40635
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.499 OF 2019
BETWEEN:
SRI EKBAL AHAMED
PROPRIETOR
AGED ABOUT 61 YEARS
M/S GUDI
NO.59/A, MARKET ROAD,
GANHI BAZAR
BASAVANAGUDI
BENGALURU - 560 004.
...PETITIONER
(BY SRI. H MOHAN KUMAR, ADVOCATE)
AND:
SRI BASAVARAJU D S
S/O LATE SIDDAIAH
AGED ABOUT 43 YEARS
Digitally signed R/AT NO.17, 2ND CROSS,
by MADHURI S
AVALAHALLI,
Location: High
Court of BENGALURU - 560 026.
Karnataka ...RESPONDENT
(BY SMT. JYOTHI BHAT, ADVOCATE FOR
SRI. VIJAY NARAYAN, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO a) SET ASIDE THE AFORESAID JUDGMENT
AND ORDER DATED 13.10.2017 IN C.C.NO.9707/2013 ON THE
FILE OF THE XXIII ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU; b) SET ASIDE THE JUDGMENT AND
ORDER DATED 25.02.2019 IN CRL.A.NO.1579/2017 ON THE
FILE OF THE LXIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY, CONVICTING THE ACCUSED FOR
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CRL.RP No. 499 of 2019
NC: 2023:KHC:40635
THE OFFENCES PUNISHABLE UNDER SECTION 138 OF N.I ACT,
CONSEQUENTLY DISMISS THE COMPLAINT FILED BY THE
RESPONDENT IN C.C.NO.9707/2013 BEFORE THE TRIAL
COURT, BY ALLOWING THE CRIMINAL REVISION PETITION , IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this petition filed under Section 397 r/w 401 of
Cr.P.C, accused has challenged his conviction and
sentence imposed by the trial Court for the offence
punishable under Section 138 of N.I. Act, which came to
be confirmed by the Sessions Court by dismissing the
appeal filed by him.
2. For the sake of convenience, parties are
referred by the rank before the trial Court.
3. According to the complainant, he came to be
acquainted with the accused through a Psychologist and
used to sit in the shop of accused who was dealing in
purchase and sale of artifacts. Due to this acquaintance,
he has provided financial assistance to the accused by way
of paying his bills and also in cash for a total sum of
CRL.RP No. 499 of 2019
NC: 2023:KHC:40635
Rs.13,23,761. Accused was paying the said amount in
monthly instalments of Rs.8000/-. Accused was due in a
sum of Rs.7,59,761/-. When accused stopped making
payment, on the insistence of the complainant towards
part payment of the said amount, accused issued a post
dated 10.04.2013 cheque. However, when presented for
encashment, it was dishonoured for want of sufficient
funds and after issuing notice and completing all the
formalities complainant filed the complaint.
4. Accused contested the case and pleaded not
guilty and claimed trial.
5. Complainant has examined himself as PW-1 and
relied upon Ex.P1 to 8.
6. During the course of his statement under
Section 313 Cr.P.C, the accused has denied the
incriminating evidence.
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7. In fact, he has stepped into the witness box by
examining himself as DW-1. He has got marked Ex.D1 to
7.
8. Vide the impugned judgment and order the trial
Court convicted the accused and sentenced him to pay
fine of Rs.6,25,000/- with a default clause.
9. The appeal filed by the accused before the
Sessions Court also came to be dismissed, thereby
confirming the order of the trial Court.
10. Being aggrieved by the same, petitioner is
before this Court contending that the impugned judgments
and orders passed by the trial Court as well as the
Sessions court are improper and unsustainable in law. The
reasons assigned for recording order of conviction are
illegal and improper. Both Courts have failed to appreciate
the material evidence on record. They have failed to note
the several infirmities in the evidence of complainant. The
sentence passed is too harsh and severe and prays to
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allow the petition and set aside the impugned judgments
and orders.
11. Learned counsel representing complainant has
supported the impugned judgment and order and sought
for dismissal of the petition.
12. Heard arguments of both sides and perused the
record.
13. Accused has not disputed that the cheque in
question belongs to him, drawn on his account maintained
with his banker and it bears his signatures. Such being the
case, the presumption under Sections 118 and 139 of the
N.I.Act is attracted. Consequently it is required to draw a
presumption that the cheque was issued towards payment
of any legally recoverable debt or liability. Therefore, the
burden is on the accused to prove that cheque was not
issued towards repayment of any legally recoverable debt
or liability and he is required to establish the
CRL.RP No. 499 of 2019
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circumstances under which the cheque has reached the
hands of complainant.
14. Admittedly, the accused has not sent reply to
the legal notice and thereby he has not only failed to pay
the amount due under the cheque within the specified
time, but he has also lost opportunity to put forth the
circumstances under which the cheque in question has
allegedly reached the hands of complainant. However,
during the cross-examination of PW-1, the accused has
taken up a defence that complainant used to sit in his
shop and during the said period he has stolen the signed
cheque in question which he had kept for the purpose of
his business and utilising it has filed a complaint.
Admittedly, the accused has not filed any complaint
against the complainant for allegedly stealing the cheque.
He has also not given any instructions to his banker to
stop payment.
15. At the first available opportunity he has not
revealed this factor by sending reply to the complainant.
CRL.RP No. 499 of 2019
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The accused has also taken up a defence that complainant
used to work in his shop and he used to pay Rs.8000/-
p.m as a salary to him. Admittedly, the accused has not
produced any documents to show that complainant was
employed in his shop. With regard to maintaining any
records in respect of employees of his shop, the accused
has expressed ignorance as to whether any records were
maintained etc., and claimed that his wife is in the
knowledge of these aspects. However, the accused has not
examined his wife.
16. It is relevant to note that complainant is an
employee of Wipro and he has produced evidence to show
that on several occasions he has made several payments
through cheques and cash. The accused is not having any
explanation for these payments made by the complainant.
Certainly as an alleged employee of the accused,
complainant is not expected to make the said payments.
The perusal of oral and documentary evidence placed on
record it makes evident that the accused has taken up a
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false defence and failed to prove the same. Thereby the
accused has failed to rebut the presumption.
Consequently, the burden is not shifted on the
complainant. Despite the same, the complainant has
placed sufficient material on record to prove his case. On
the other hand, the accused has miserably failed to rebut
the presumption operating in favour of the complainant.
17. During the course of arguments, learned
counsel representing accused made a faint effort to show
that the establishment run by the accused is a partnership
firm and without specific pleadings and without arraigning
the partner of the firm, complaint is not maintainable. As
already noted by not sending the reply, at the earliest
available opportunity the accused has failed to come up
with any definite defence. There is also no cross-
examination of complainant with regard to the argument
now put forth before this Court. During the course of his
affidavit evidence, the accused has claimed that the shop
run by him is a partnership firm and his wife is another
CRL.RP No. 499 of 2019
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partner. No documents are produced by the accused to
show that it was a partnership firm and the cheque in
question was issued on behalf of the firm. In fact in the
cheque at Ex.P3, he has signed as the
Proprietor/Authorised signatory.
18. Appreciating the oral and documentary
evidence placed on record in right perspective, the trial
Court as well as the Sessions Court have come to a correct
conclusion. This Court do not find any justifiable grounds
to interfere with the well reasoned judgments of both
Courts. Having regard to the amount due under the
cheque, the punishment imposed is also appropriate and
reasonable. Consequently, there are also no grounds to
interfere with the quantum of punishment also. In the
result, the petition fails and accordingly the following:
ORDER
(i) Petition filed by the accused under
Section 397 r/w Section 401 Cr.P.C is
hereby dismissed.
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CRL.RP No. 499 of 2019
NC: 2023:KHC:40635
(ii) The impugned judgment and order dated
13.10.2017 in C.C.No.9707/2013 on the
file of XXIII ACMM, Bengaluru and dated
25.02.2019 in Crl.A.No.1579/2017 on the
file of LXIII Addl.City Civil and Sessions
Judge, Bengaluru are hereby confirmed.
(iii) The Registry is directed to send back the
trial Court and Sessions Court records
along with copy of this order forthwith.
Sd/-
JUDGE
RR
