Sri. Shanmukha vs Sri. Rathanlala Sharma
2023 Latest Caselaw 6878 Kant

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                                 CRL.RP No. 999 of 2015


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
    DATED THIS THE 29TH DAY OF SEPTEMBER, 2023
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
    CRIMINAL REVISION PETITION NO. 999 OF 2015
BETWEEN:
SRI. SHANMUKHA
S/O. CHANNABASAPPA
AGED ABOUT 53 YEARS
SRI SIDDESHWARA KRUPA
KELADI ROAD, SAGAR TOWN
SAGAR - 577 401.
                                            ...PETITIONER
(BY SRI. NATARAJ D, ADVOCATE FOR
 SRI. PRUTHVI WODEYAR, ADVOCATE)

AND:
SRI. RATHANLALA SHARMA
S/O. RAMESHWARA RAO
AGED ABOUT 49 YEARS
MERCHANT
R/O. NEAR RAJARAJESHWARI TEMPLE
VINOBANAGAR
SAGAR - 577 401.
                                          ...RESPONDENT
(BY SRI. VIJAYA M N, ADVOCATE)

     THIS CRL.RP IS FILED U/S. 397 R/W SECTION 401
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE PASSED BY THE CIVIL JUDGE
(JR.DN.) AND JMFC, SAGAR IN C.C.NO.135/2013, DATED
19.04.2014 AND ALSO THE JUDGMENT AND ORDER PASSED BY
THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE,
SHIVAMOGGA (SITTING AT SAGAR) IN CRL.A.NO.76/2014
DATED 07.07.2015 AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 11.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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                                         CRL.RP No. 999 of 2015




                             ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 19.04.2014 in C.C.No.135/2013 on the

file of the Court of the Civil Judge (Jr.Dn) and J.M.F.C., Sagar

and its confirmation judgment and order dated 07.07.2015 in

Crl.A.No.76/2014 on the file of the Court of the V Additional

District and Sessions Judge, Shivamogga sitting at Sagar

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 (for short 'N.I Act').

2. The petitioner is the accused before the Trial Court

and the appellant before the Appellate Court.

Brief facts of the case are as under:

3. It is the case of the complainant that, the petitioner

stated to have borrowed a loan of Rs.2,00,000/- on 16.04.2012

to develop his business and agreed to repay the same within

two months. It is further stated that, on 15.08.2012, the

petitioner stated to have repaid Rs.10,380/- and issued a

CRL.RP No. 999 of 2015

cheque dated 20.08.2012 for the remaining balance amount.

When it was presented for encashment, the said cheque was

dishonored as 'funds insufficient'. A legal notice was issued to

that effect, it was served on 20.11.2012, however, he has not

repaid the said amount nor issued a reply. Hence, a complaint

came to be filed against the petitioner before the jurisdictional

Court.

4. To prove the case of the complainant, the

complainant examined himself as PW.1 and got marked five

documents as Exhibits P1 to P5. On the other hand, the

accused has not led any evidence nor marked any documents

on his behalf. The Trial Court after appreciating the oral and

documentary evidence on record, convicted the petitioner for

the offence stated supra. Being aggrieved by the same, the

petitioner preferred an appeal before the Appellate Court and

the Appellate Court confirmed the judgment of conviction

rendered by the Trial Court. Being aggrieved by the same, the

petitioner has preferred this revision petition seeking to set

aside the concurrent findings.

5. Heard Shri Nataraj.D, learned counsel appearing on

behalf of Shri Pruthvi Wodeyar, learned counsel for the

CRL.RP No. 999 of 2015

petitioner and Shri Vijaya M.N, learned counsel for the

respondent.

6. It is the submission of learned counsel for the

petitioner that the judgment of conviction and order of

sentence passed by the Trial Court and its confirmation order

passed by the Appellate Court requires to be set aside as the

concurrent findings are perverse, illegal and opposed to facts

and law.

7. It is further submitted that the respondent has

failed to prove the financial capacity to lend the said amount.

The Trial Court and the Appellate Court have ignored in

considering the financial capacity of the respondent and

convicted the petitioner appears to be erroneous and the same

is liable to be set aside.

8. It is further submitted that the transaction between

the petitioner and the respondent has not been established

before the Courts below, the Trial Court should not have raised

the presumption in favour of the respondent. Raising the

presumption even though the respondent has not proved the

case, appears to be erroneous and the same is required to be

CRL.RP No. 999 of 2015

set aside. Making such submission, the learned counsel for the

petitioner prays to allow the petition.

9. Per contra, learned counsel for the respondent

justified the concurrent findings and submitted that the

execution of the cheque and signature have been admitted.

Even though the petitioner tried to elicit that the respondent

had no financial capacity to lend the amount of Rs.2,00,000/-

to the petitioner, the respondent submitted that he was doing

arecanut business at Sagara, Shivamogga District and used to

have transacted of Rs.8.00 to Rs.10.00 lakhs per month. It is

further stated that the respondent and the petitioner have done

several transactions earlier. In the said transaction, the

petitioner used to borrow money and repay the money to the

respondent.

10. It is further stated that the respondent had paid the

amount of Rs.2.00 lakhs on 16.04.2012 to the petitioner, in lieu

of the amount which he had borrowed, a cheque was issued as

security. When the amount was not repaid by the petitioner,

the said cheque was presented for encashment. The learned

counsel further contended that the Trial Court and the

Appellate Court after appreciating the oral and documentary

evidence on record opined that, the petitioner is found guilty of

CRL.RP No. 999 of 2015

the offence under Section 138 of the N.I Act and the findings of

the Courts below are appropriate and correct and there is no

necessity to interfere with the said findings. Making such

submission, the learned counsel for the respondent prays to

dismiss the petition.

11. Having heard the rival contentions urged by the

learned counsels for the respective parties and also perused the

documents available on record, the findings of the Courts below

in recording the conviction, the points which arise for my

consideration are:

i) Whether the concurrent findings recorded by

both the Courts below in convicting the petitioner

for the offence under Section 138 of NI Act are

sustainable?

ii) Whether the petitioner has made out

grounds to interfere with the concurrent findings

recorded by both the Courts below for conviction?

12. This Court being a Revisional Court, having

regarded the scope and ambit envisaged to appreciate the facts

and law, it is necessary to have a cursory look upon the

evidence and also the law to ascertain as to whether any

CRL.RP No. 999 of 2015

illegality or perversity or error committed by the Courts below

in recording the conviction.

13. Before adverting to the facts of the case, it is

relevant to refer to certain legal aspects of the Negotiable

Instruments Act. To attract the ingredients of the provision of

Section 138 of the N.I Act, there must be legally enforceable

debt, the cheque to be drawn from the account of bank for

discharge in whole or in part of any debt or other liability which

presupposes a legally enforceable debt and the cheque should

be dishonored for the reason stated in the shara of the bank.

After the cheque gets dishonored, a notice has to be issued to

the address of the drawer, after receipt of the notice, within 45

days, the drawee has to file a complaint. Once the ingredients

are fulfilled, the presumption under Section 139 of N.I Act has

to be raised in favour of the drawee that, the cheque which he

had received was for consideration.

14. In the present case, PW.1 has led his evidence that

the petitioner had borrowed Rs.2,00,000/- and made part

payment of Rs.10,380/- and for the balance amount, he had

issued a cheque and asked PW.1 to present it for encashment.

When it was presented for encashment, it got dishonored as

'funds insufficient'. In spite of notice having been served, the

CRL.RP No. 999 of 2015

petitioner neither replied nor repaid the amount. Of course,

the respondent is protected under the statutory presumption.

The petitioner has to rebut the said presumption by adducing

cogent evidence. Admittedly, he has not led any evidence nor

produced any document except cross-examined PW.1.

15. On considering the cross-examination, except denial

of the said transaction nothing has been elicited in the cross-

examination to disprove the transaction. However, he has

admitted the issuance of the cheque to the respondent. It is

needless to say, the mere denial of the transaction after the

issuance of the cheque is not sufficient to rebut the

presumption. The petitioner must lead cogent evidence to raise

a probable defence to rebut the presumption. If such probable

defence is accepted, then it can be construed that the

presumption stood rebutted. Since the petitioner has not

produced any cogent evidence to rebut the presumption, the

Courts below have rightly considered the evidence of PW.1 and

raised the presumption in favour of the respondent and

recorded the conviction, which appears to be proper and there

is no occasion for this Court to interfere with the wellreasoned

order passed by the Courts below. Therefore, the petition

deserves to be dismissed.

CRL.RP No. 999 of 2015

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

points which arose for my consideration are answered as

under:-

     Point No.(i)       - "Affirmative"
     Point No.(ii)      - "Negative"

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

ORDER

(i) The Criminal Revision Petition is dismissed.

     (ii)       The   judgment     of    conviction    and    order     of
                sentence      dated      19.04.2014         passed      in

C.C.No.135/2013 by the Court of the Civil Judge (Jr.Dn) and J.M.F.C., Sagar and the judgment and order dated 07.07.2015 passed in Crl.A.No.76/2014 by the Court of the V Additional District and Sessions Judge Shivamogga sitting at Sagar, are confirmed.

(iii) The Trial Court is directed to secure the presence of the petitioner / accused for the execution of judgment of conviction and order of sentence in accordance with law.

Sd/-

JUDGE

UN