Sri. S. G. Rajesh vs Sri. N. Prakash
2023 Latest Caselaw 7295 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF OCTOBER, 2023

                        BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.1248 OF 2017

BETWEEN:

SRI. S.G. RAJESH,
S/O. GNANESHWARA RAO SHENDGE,
AGED ABOUT 43 YEARS,
R/A NO.89/1-2 & 3,
6TH CROSS, RAYAPPA GARDEN,
RAMAKRISHNA ROAD,
COX TOWN,
BENGALURU-560 005
                                          ....PETITIONER
(BY SRI. S.G. RAJESH, PARTY-IN-PERSON)

AND:

SRI. N. PRAKASH,
S/O. LATE V. NARAYANA RAO,
AGED ABOUT 53 YEARS,
RESIDING AT NO.13, DARJIPET,
R.T. STREET CROSS, CHICKPET,
BENGALURU-560 053.
                                         ...RESPONDENT
(BY SRI. FAYAZ SAB B.G, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE
JUDGMENT DATED 04.07.2016 PASSED BY THE XIII
ADDL.C.M.M., BENGALURU IN C.C.NO.15562/2015 VIDE
ANNEXURE-A AND JUDGMENT DATED 01.09.2017 PASSED BY
THE LXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN CRL.A.NO.870/2016 VIDE ANNEXURE-B.
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     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 05.10.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                              ORDER

This revision is filed by the revision petitioner /

accused challenging the judgment of conviction and order of

sentence passed by XIII Additional Chief Metropolitan

Magistrate, Bangalore in C.C.No.15562/2015 and confirmed

by LXVI Additional City Civil and Sessions Judge, Bangalore

in Crl.A.No.870/2016.

2. For the sake of convenience, the parties herein

are referred with original ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are

as under:

That the complainant and the accused are cousins and

in view of the said acquaintance, the accused had

approached the complainant for financial assistance of

Rs.4,50,000/- as a hand loan for his father's medical

treatment and to clear the loan. The said loan was

advanced by complainant on 26.12.2012 and accused

promised to repay the same within six months. In between

it is asserted that complainant got transferred to Pune and

was not able to repay the loan amount and agreed to pay

the same within 15 months in monthly Rs.30,000/-

installment by issuing 15 post dated cheques bearing

Nos.000026 to 000040 of HDFC Bank, BTM layout II Stage,

Bangalore. The said cheques were presented for

encashment, but 9 cheques were honoured and other

cheques from 000035 to 000037 were bounced for reason

of insufficient funds. Then the accused promised to pay

complainant total sum of Rs.90,000/-, but never repaid the

same. He has also requested the complainant not to present

the balance cheques 000035 to 000040 asserting that he

will pay entire due of Rs.1,80,000/- towards these 6

cheques to the complainant.

4. It is further asserted that in the month of

October 2014, accused again requested complainant for

loan of Rs.6 Lakhs to clear standing loan, which he had

availed in HDFC Bank, Bangalore and also promised that he

will also clear the due of Rs.180000 including Rs.6 Lakhs.

Hence, the complainant has paid another loan of Rs.6 Lakhs

in favour of accused on 10.12.2014. The accused has

assured the complainant of repayment of Rs.6 Lakhs and

Rs.1,80,000/- by the end of December 2014. Thereafter, he

had issued a post dated cheque bearing 000121 dated

16.01.2015 for Rs.6 Lakhs to the complainant drawn on

HDFC Bank, BTM Layout, Bangalore. When the said cheque

came to be presented, it bounced for insufficient of funds.

The complainant got issued a legal notice and though it is

served, the accused did not repay the cheque amount and

hence, a complaint came to be lodged.

5. On the basis of the complaint, the learned

Magistrate has taken cognizance of the offence and issued

process against the accused. The accused has appeared and

was enlarged on bail. The plea under Section 138 of

Negotiable Instruments Act, 1881 (hereinafter referred to

as 'the N.I.Act' for short) was recorded and he denied the

same.

6. The complainant was examined as PW1 and he

placed reliance on 11 documents marked at Ex.P1 to

Ex.P11. After conclusion of the evidence of the complainant

the statement of the accused under Section 313 of Cr.P.C

was recorded to enable the accused to explain the

incriminating evidence appearing against him in the case of

the complainant. The case of accused is of total denial. He

also got examined himself as DW1 and placed reliance on

Ex.D1 to Ex.D8.

7. After hearing the arguments and after

appreciating the oral and documentary evidence, the

learned Magistrate has convicted the accused for the

offence punishable under Section 138 of N.I. Act by

imposing sentence of fine of Rs.8 Lakhs.

8. Being aggrieved by this judgment of conviction

and order of sentence, the accused has approached LXVI

Additional City Civil and Sessions Judge in

Crl.A.No.870/2016. The Learned Sessions Judge after re-

appreciating the oral and documentary evidence dismissed

the appeal by confirming the judgment of conviction and

order of sentence passed by the learned Magistrate. Against

these concurrent findings, the accused / revision petitioner

is before this court by way of this revision.

9. Heard the arguments advanced by the revision

petitioner/accused in person and learned counsel for the

respondent / complainant. Perused the records.

10. The revision petitioner has prosecuted this

matter in person. He would contend that he is well off and

there is no need for him to take such a huge amount as a

loan. On the contrary, he would contend that he used to

send some amount to the accused for purchase of jewellery

to his mother and for payment to his mother as the

complainant is his cousin. He would also assert that the

complainant himself is a tailor by profession and he was

working in Vodafone and was earning Rs.12,000/- per

month including incentives and hence, his contention of

advancing huge loan of Rs.6 Lakhs cannot be accepted and

he has failed to prove his financial status. He would also

contend that he had sent certain cheques towards

repayment of the 'loan installment of the bank' to the

complainant, but the said cheques were misused and in this

regard he invites the attention to Ex.D10, which is a

complaint filed against him by another person and both the

complaints were on the same day and in that complaint, the

complainant was a witness. Hence, he would assert that

both the courts below have erred in convicting the accused

and judgment of conviction and order sentence passed by

both the courts below is perverse and sought for

interference.

11. Per contra, the learned counsel for the

respondent would contend that totally the accused has

returned Rs.10 Lakhs to him on different occasions, which

were taken as loan. He would also assert that the signature

and the cheque have been admitted and presumption is in

favour of the complainant which is not rebutted. He has

further invited the attention of the court to Ex.P10, which is

a e-mail issued by the accused admitting his liability.

Hence, he would seek dismissal of the revision.

12. Having heard the arguments and on perusing

the records, the following point would arise for my

consideration:

(i) Whether the judgment of conviction and order of sentence passed by the trial court and confirmed by the sessions Judge are perverse, arbitrary and erroneous so as to call for any interference by this court?

13. It is the contention of the complainant that

initially accused availed loan of Rs.4,50,000/- and towards

repayment of the same, he issued 15 cheques of

Rs.30,000/- each and 9 cheques were encashed, while 3

cheques were dishonoured and as per request, 6 cheques

were not presented. According to the complainant, on

26.12.2012, he advanced Rs.4,50,000/-. He further asserts

that subsequently accused again demanded Rs.6 Lakhs

assuring him to pay total sum of Rs.7,80,000/- and he

advanced Rs.6 Lakhs on 10.12.2014. According to the

complainant, in discharge of the said debt of Rs.6 Lakhs,

Ex.P1 came to be issued and it is bounced. The defence of

the accused is that the complainant is not capable of

advancing the loan, but he used to send the money to his

mother for purchasing jewellery through accused and used

to send cheques to him for payment of bank installments.

The cheque-Ex.P1 belongs to the accused and it bears his

signature are the admitted facts.

14. In the cross-examination, PW1 admitted that he

was working as a Tailor since, last 5 years. This evidence

was recorded in 2015 and he further asserts that from 2004

to 2012, he was working in Vodafone. He further asserted

that he used to receive commission to the tune of

Rs.12,000/- to Rs.15,000/-. Ex.D1 when confronted to him,

he admitted the same, which discloses that from November

2004 to October 2012, he used to receive salary of

Rs.12,000/- in ACE Business Ventures inclusive of

incentives. Hence, it is evident that till October 2012, his

monthly income was Rs.12,000/-. The further cross-

examination of PW1 discloses that prior to payment of

Rs.4,50,000/- earlier also, he paid the loan to the tune of

Rs.40,000/- to Rs.60,000/- upto 7 Lakhs till 2014. When

the income of the complainant itself is Rs.12,000/- per

month, it is hard to accept that he advanced nearly loan of

Rs.7 Lakhs till 2014 without charging interest to the

complainant.

15. In his further cross-examination PW1 admitted

that after leaving the job of Vodafone, he was working as

an Attender in the Tailor shop of one Pranesh as admitted

before XXI ACMM, Bangalore. Though he asserts that his

wife is working in a private sector, he has not produced any

documents to substantiate the same.

16. As per the complainant's admission, he was

required to receive earlier balance of Rs.1,80,000/- and

Rs.6 Lakhs advanced subsequently. His assertion is that this

cheque Ex.P1 was issued towards Rs.6 Lakhs. He has

further all along asserted that there was a promise to pay

the balance Rs.1,80,000/- in cash. In the entire evidence or

in the complaint, the complainant no where whispered as to

balance of Rs.1,80,000/-. The accused has suggested to the

complainant that the complainant has stolen the cheques

from his house, but he denied the same. However, no

complaint is lodged in this regard and that defence is not

acceptable.

17. The conduct of the complainant in this regard is

also suspicious. When the balance of Rs.1,80,000/- was due

in December 2014, how he paid further Rs.6 Lakhs is not at

all explained that too when the earlier amount itself was not

paid. This conduct of the complainant is against human

nature. Further in his cross-examination, he admitted that

the accused has credited a total amount of Rs.9,47,500/-

between 07.09.2013 to 22.08.2014 to his account. He

asserts that it was pertaining to a different transaction.

What is that different transaction is not all explained. He

further admitted that accused has sent the amount to him

through online for purchasing gold and he has purchased

the gold and he admits the receipt Ex.D2. Though a

suggestion was made that the said golden ornaments were

not handed over to the mother of the accused, he disputed

this aspect.

18. The complainant further admitted in his cross-

examination that he is not doing any money lending

business. His monthly income itself is hardly Rs.12,000/-.

He had no other source of income. He further admits that

he has filed a cheque bounce case against one Panchmi for

a sum of Rs.4,10,000/-, against one Raju for Rs.7 Lakhs

and against Vinod Rao Shinde to the tune of Rs.5 Lakhs. If

this version is taken into consideration, it is evident that

complainant is dealing in Lakhs and advancing the loans in

Lakhs to number of persons without charging interest and

without disclosing the source of income. He never asserted

that he is an income tax assessee. Hence, it can be safely

presumed that the complainant is illegally doing money

lending business and he is extracting higher rate of interest

by cheating the borrowers as well as the State. When he is

doing illegal money lending business, which is unaccounted

money, it cannot be termed to be a legal transaction and

source cannot be considered as legal source for

advancement of the loan.

19. The learned counsel for the respondent has

invited the attention of the court to Ex.P10 which is email

submitted by the accused wherein he has admitted

regarding due payment in respect of two installments of

September and October and assured of clearing them by

November 2014. But this only discloses the earlier

transaction, but it has nothing to do with the loan of Rs.6

Lakhs said to have been advanced on 10.12.2014 as this

letter is dated 02.11.2014.

20. The accused got examined himself as DW1 and

he has admitted issuance of 15 cheques of Rs.30,000/- to

the accused and asserts that they were given to the

maintenance of the family of the accused and 10 cheques

were encashed. He has also deposed regarding online

transfer to the complainant towards Rs.7,45,000/- and

payment towards purchase of gold. From Ex.D3, it is

evident that totally he has transferred to the tune of

Rs.10,45,100/- to the account of the complainant. This

Rs.10,45,100/- does not include 9/10 cheques of

Rs.30,000/-. If this version is taken into consideration, then

the accused has paid more than Rs.13 Lakhs to the

complainant. The claim of the complainant is only to the

tune of Rs.7,80,000/- in all and in this case, it is for

Rs.6 Lakhs. Further, the complainant has produced Ex.D4 to

show that he is financially sound and was an income tax

assessee. Ex.D10, is a complaint filed by one Dhanapal,

wherein the allegations of payment of Rs.4,50,000/- again

as asserted by the complainant in this case and

interestingly the present complainant was shown to be

witness to the said transaction.

21. Hence, these facts and circumstances clearly

establish that complainant is illegally doing money

transactions. He did not disclose his source of income

though he was transacting in Lakhs, but his source of

income itself is not established. Hence, it can be inferred

that he is not having white money and his transactions are

illegal transactions. Apart from that, the records disclose

that the complainant has transferred more than Rs.13

Lakhs to the account of the complainant and though

complainant claims that it was pertaining to different

transactions, he never asserted what were those different

transactions and according to him there are only two

transactions of Rs.4,50,000/- and Rs.6 Lakhs. Considering

these facts and circumstances, it is evident that the

complainant/respondent has failed to prove the fact that the

accused has issued the disputed cheque Ex.P1 towards

legally enforceable debt.

22. Both the courts below have failed to appreciate

the oral and documentary evidence in its proper

perspective. Further, accused is not required to rebut the

presumption on the standard of proof of beyond all

reasonable doubt, but he can prove his defence only on the

basis of preponderance of probability. The evidence on

record clearly establishes that the accused/revision

petitioner was successful in proving his defence and

complainant has not produced any other material to

substantiate his claim. The courts below have failed to

appreciate the defence of the accused, documents produced

by the accused and cross-examination of the complainant

and material admissions regarding transfer of the amount.

Both the courts below carried away with the fact that

cheque and signature have been admitted, but did not

consider that the same has been rebutted. Hence, the

judgments of conviction and orders of sentence suffer from

perversity and call for interference by this court.

Considering these facts and circumstances the point under

consideration is answered in the affirmative. As such, I

proceed to pass the following

ORDER

(i) The revision petition is allowed.

(ii) The judgment of conviction and order of sentence passed by XIII Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.15562/2015 and confirmed by LXVI Additional City Civil and Sessions Judge, Bangalore in Crl.A.NO.870/2016 are set aside.

(iii) The accused stands acquitted for the offence punishable under Section 138 of N.I.Act and bail bonds stand cancelled by setting him at liberty forthwith.

     (iv)    The   amount    in    deposit    made      by     the
             revision   petitioner     /   accused     shall   be
             refunded to him.




                                              Sd/-
                                             JUDGE


SS