Karnataka High Court
Sri K B Subbaiah vs Sri B M Dinesh on 27 November, 2023
-1-
CRL.RP No. 657 of 2020
NC: 2023:KHC:42632
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.657 OF 2020
BETWEEN:
SRI K B SUBBAIAH
S/O LATE BELLAIAH,
AGED ABOUT 61 YEARS,
DARDAHALLI VILLAGE AND POST,
MUDIGERE TALUK
CHIKKAMAGALURU DISTRICT
NOW AT HOUSING BOARD
CHIKKAMAGALURU - 577 132
...PETITIONER
(BY SRI. PRANEETH G N, ADVOCATE)
AND:
SRI B M DINESH
S/O MALLEGOWDA,
Digitally signed
by MADHURI S AGED ABOUT 53 YEARS,
Location: High R/O MUDIGERE TOWN AND POST
Court of CHIKKAMAGALURU DISTRICT - 577 132
Karnataka
...RESPONDENT
(BY SRI. SUYOG HERALE E, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
28.08.2020 PASSED IN CRIMINAL APPEAL NO.153/2019 ON
THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, CHIKKAMAGALURU CONFIRMING THE JUDGMENT
DATED 19.06.2019 PASSED IN C.C.NO.944/2015 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE AND JMFC AT MUDIGERE AND
THIS REVISION PETITION BE ALLOWED WITH COST
THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY.
-2-
CRL.RP No. 657 of 2020
NC: 2023:KHC:42632
THIS PETITION, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Being aggrieved by dismissal of appeal filed by him
before the Sessions Court, challenging his conviction and
sentence imposed by the trial Court for the offence
punishable under Section 138 of N.I.Act,
petitioner/accused is before this Court.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. Complainant filed complaint against the accused
contending that for finishing work of construction of his
house, accused was short of money and therefore, he
borrowed Rs.1,50,000/- from the complainant during
February 2015. Complainant transferred a sum of
Rs.97,000/- through account and paid balance of
Rs.53,000/- in cash. With a promise to repay the same
within six months, accused issued a post dated
15.09.2015 cheque. However, when complainant
presented it on due date, it was returned dishonoured with
NC: 2023:KHC:42632
endorsement dated 16.09.2015 "funds insufficient".
Though complainant has received legal notice he has failed
to pay the amount due. He has also not sent any reply.
Without any alternative, complaint is filed.
4. After due service of summons, accused
appeared and contested the matter, denying the loan
transaction. He has also alleged that the cheque in
question was lost and misusing the same, complaint is
filed.
5. During the trial, complainant examined himself
as PW-1 and relied upon Exs.P1 to 8.
6. During the course of his statement under
Section 313 Cr.P.C, the accused has denied the
incriminating evidence.
7. He has examined the postman as DW-1.
8. During his cross-examination the complainant
has got marked Ex.P8.
NC: 2023:KHC:42632
9. Vide the impugned judgment and order, the
trial Court has convicted the accused and sentenced him
to pay fine of Rs.2,15,000/- in default to undergo simple
imprisonment for a period of one year.
10. Accused took it in appeal before the Sessions
Court. However, vide the impugned judgment and order,
the Sessions Court dismissed the appeal.
11. Being aggrieved by the same, the accused is
before this Court, contending that the impugned
judgments and orders are opposed to law, facts and
probabilities of the case. Both Courts have failed to
appreciate the oral and documentary evidence placed on
record. There was no money transaction between the
complainant and accused at any point of time. Misusing
the lost cheque, complainant has filed the complaint to
make unlawful gain. Complainant had no financial capacity
to lend the amount due under the cheque. Despite
accused rebutting the presumption, the complainant has
failed to prove his case beyond reasonable doubt and
NC: 2023:KHC:42632
prays to allow the petition and set aside the impugned
judgments and orders.
12. Heard arguments and perused the record.
13. The fact that the cheque belongs to accused
drawn on his account maintained with his banker and it
bears his signature, is not in dispute. Consequently,
presumption under Sections 118 and 139 of N.I.Act, that
the cheque was issued towards repayment of any legally
recoverable debt or liability arises in favour of the
complainant and against the accused. Therefore, it is for
the accused to rebut the presumption, in which event the
burden would shift on the complainant to prove the
transaction. Of course it is sufficient for the accused to
rebut the presumption by preponderance of probabilities,
whereas the complainant is required to prove his case
beyond reasonable doubt.
14. According to the complainant the legal notice
sent to the accused is served on him as per the
acknowledgement at Ex.P5. In fact it bears the signature
NC: 2023:KHC:42632
of the accused. However, he has disputed that the notice
is served on him for the simple reason that in Ex.P5, the
signature of the recipient is not affixed on the place meant
for it. It is pertinent to note that the address of accused is
noted in Ex.P5 till the end of the document including the
space meant for affixing signature of recipient and
therefore, the accused has signed on the left hand corner.
In fact his seal is also affixed. Though the accused has
chosen to examine the postman, his evidence also prove
the fact that as there was no space for affixing the
signature on the place reserved for the said purpose, he
has taken the signature of accused on the left hand
corner. During his cross-examination, the complainant has
got marked the RPI slip regarding delivery of post as Ex.P8
and it bears the signature of accused. Thus, the
complainant has proved service of notice to the accused.
15. Though the object of service of notice is to
enable a prompt payer to pay the amount due under the
cheque and escape from the ignominy of facing trial and
NC: 2023:KHC:42632
punishment, incidentally it provide an opportunity to the
accused to come up with his defence and also dispute the
financial capacity of the accused, if so advised. By not
sending reply, the accused has lost both opportunities.
16. During the course of cross-examination of
complainant, the accused has taken up a defence that the
cheque was lost and misusing the same, complainant has
filed a false complaint. Accused has not stepped into the
witness box to explain the circumstances, wherein he has
lost the cheque. Admittedly, the accused has not given
any complaint regarding missing of cheque. He has also
not sent any intimation to his banker to stop payment.
Consequently, this Court is not left with any alternative
but to hold that for the purpose of this case, the accused
has taken a false defence.
17. On the other hand, through the oral and
documentary evidence placed on record, the complainant
has proved that accused has borrowed a sum of
Rs.1,50,000/-. Out of which, he has credited Rs.90,000/-
NC: 2023:KHC:42632
to the account of accused and remaining amount is paid
through cash. The accused has failed to rebut the
presumption under Sections 118 and 139 of N.I.Act.
18. Considering the oral and documentary evidence
placed on record, both the trial Court and Sessions Court
have accepted the case of the complainant and convicted
the accused. Having regard to the amount due under the
cheque, the punishment imposed is also reasonable. This
Court finds no justifiable reasons to interfere with the
impugned judgments and orders. In the result, the petition
fails and accordingly the following:
ORDER
(i) Criminal Revision Petition is dismissed.
(ii) The impugned judgments and orders dated
19.06.2019 in C.C.No.944/2015 on the file
of Prl.Civil Judge and JMFC, Mudigere and
dated 28.08.2020 in Crl.A.No.153/2019 on
the file of II Addl.District and Sessions
Judge, Chikkamagalur are confirmed.
NC: 2023:KHC:42632
(iii) The respondent/complainant is permitted to
withdraw the amount in deposit before the
trial Court (if any and if already not
withdrawn).
(v) The Registry is directed to return back the
Sessions Court as well as trial Court records
along with copy of this order forthwith.
Sd/-
JUDGE
RR
