Karnataka High Court
Sri Anil Kumar M R vs Sri Umesh P on 1 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 96 of 2021
C/W CRL.RP No. 177 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 96 OF 2021
C/W
CRIMINAL REVISION PETITION NO. 177 OF 2021
IN CRIMINAL REVISION PETITION NO. 96 OF 2021:
BETWEEN:
1. SRI ANIL KUMAR M.R.
S/O SRI RAMANJANAPPA
AGED ABOUT 46 YEARS
R/AT BEGUR VILLAGE
BANDAKODIGENEHALLI POST
JALA HOBLI
BENGALURU NORTH TALUK
BENGALURU-560001
...PETITIONER
Digitally signed (BY SRI VEERANNA G. TIGADI, ADVOCATE)
by SHARANYA T
Location: HIGH
AND:
COURT OF
KARNATAKA 1. SRI UMESH P.,
S/O PUTTANNA
AGED ABOUT 44 YEARS,
R/AT MEESAGANAHALLI VILLAGE
BANDAKODIGENAHALLI POST
JALA HOBLI
BENGALURU NORTH TALUK
BENGALURU-560001
...RESPONDENT
(BY SRI JANARDHAN REDDY, ADVOCATE)
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CRL.RP No. 96 of 2021
C/W CRL.RP No. 177 of 2021
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C.
PRAYING TO ALLOW THIS CRIMINAL REVISION PETITION BY
SETTING ASIDE THE JUDGMENTS PASSED BY THE HONBLE
LEARNED ADDITIONAL CIVIL JUDGE AND JMFC AT
DEVANAHALLI, IN CC.NO.1375/2009, ORDER DATED
04.02.2020 AND ETC.
IN CRIMINAL REVISION PETITION NO. 177 OF 2021:
BETWEEN:
1. SRI ANIL KUMAR M.R.
S/O SRI RAMANJANAPPA
AGED ABOUT 46 YEARS
R/AT BEGUR VILLAGE
BANDAKODIGENEHALLI POST
JALA HOBLI
BENGALURU NORTH TALUK
BENGALURU-560001
...PETITIONER
(BY SRI VEERANNA G. TIGADI, ADVOCATE)
AND:
1. SRI PRAKASH.M.P
S/O PATALAPPA,
AGED ABOUT 45 YEARS,
R/AT MEESAGANAHALLI VILLAGE
BANDAKODIGENAHALLI POST
JALA HOBLI
BENGALURU NORTH TALUK
BENGALURU-560001
...RESPONDENT
(BY SRI RAGHAVENDRA K., ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENTS DATED 12.09.2019
PASSED BY THE ADDITIONAL CIVIL JUDGE AND J.M.F.C.,
DEVANAHALLI IN CC.NO.1376/2009 AND ETC.
THESE PETITIONS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 96 of 2021
C/W CRL.RP No. 177 of 2021
ORDER
1. Heard the learned counsel for revision petitioner
and also the counsel for the respondent.
2. These two Revision Petitions are filed
challenging the judgment of conviction and sentence
passed in Section 138 proceedings. In both the cases, the
complainants are different and the accused is same. In
both the appeals, the Appellate Court confirmed the
judgment of the Trial Court. Hence, these two Revision
Petitions are filed before this Court.
3. The Revision Petition Crl.R.P.No.96/2021 is in
respect of C.C.No.1375/2009 wherein the case of the
complainant Umesh.P stated that both the complainant
and accused are well known to each other for more than
12 years. With that close acquaintance, in the month of
June-2008, the accused had approached the complainant
for financial assistance for domestic necessities, personal
commitments and also for the purpose of a site. On
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humanitarian consideration, in order to help the accused
at the hours of his urgency, on 11.06.2008, the
complainant has paid an amount of Rs.15,00,000/- to the
accused by way of cash and in turn the accused has
undertaken to discharge the liability by first week of
December-2008 without fail. Towards the discharge of his
said legally enforceable liability, the accused has issued
Cheque for an amount of Rs.15,00,000/-. The accused
also assured the complainant that on presentation of the
said Cheque, the same would be honored. When the
complainant presented the Cheque for realization on
05.05.2009, Cheque was returned unpaid on 07.05.2009
with an endorsement that "Payment Stopped by Drawer".
Immediately the complainant got issued the notice on
06.06.2009 to the accused by RPAD and COP. He has
given an untenable reply and failed to pay the amount.
Hence, the complaint is filed. The complainant sworn
statement was recorded by Trial Court, having considered
the sworn statement, the Trial Court taken the cognizance
and issued summons against the accused. The
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complainant examined himself as PW1 and got marked
Ex.P1 to Ex.P9 and he was subjected to cross-
examination. In the cross-examination, he admits that he
has studied up to S.S.L.C. He knows reading and writing of
Kannada and English language. He also earns Rs.45,000/-
to Rs.50,000/- rental income and his income from
agriculture is Rs.1,00,000/- per year. He is not having any
other source of income. He has not produced any
document to show that he is earning Rs.45,000/- to
Rs.50,000/-. He admits that he knows Prakash and he
belongs to same village and he is having acquaintance
with Prakash. It is suggested that both of them discussed
with regard to the financial transaction, the same was
denied. He also says that the said Prakash has not advised
him to make the payment. He volunteers that he himself
has given the amount. It is suggested that when the
accused demanded money from Prakash for purchase of
the site, he expressed that he is not having any money
and by that time, he told that he is having the money
since he has sold the property and he would get the
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money from him. Hence, he gave the money. The said
suggestion was denied. When the money was paid, he
demanded the documents and he himself, Prakash,
accused and other two witnesses went to Chikkajala and
purchased the stamp paper and prepared the document.
The stamp paper was brought by the accused only. He
admits that the accused gave the Cheque on 11.06.2008
dated 03.12.2008 i.e. Ex.P1 for security. He had not
produced any document to show that he was having an
amount of Rs.15,00,000/-. He admits that he is having
knowledge about making of payment more than
Rs.20,00,000/-, the same has to be paid through Cheque.
In the further cross-examination he admits that the
accused is a Diploma Holder of D.Pharmacy and
suggestion was made that both the complainants have
engaged the same advocate and he denies the same that
he is not aware of the same. He admits that the amount
was paid on 11.06.2008 and he gave the post dated
Cheque. He admits that on 11.06.2008, accused was not
due any amount to him. On 11.06.2008, there was no any
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liability and there was no any need to obtain the Cheque.
He admits that on 11.06.2008, he was having money to
show that he is having the document. If there is a need,
he is going to produce the same. When the suggestion was
made that he did not demand any money from him for
construction of house, but he says that he has obtained an
amount of Rs.3,00,000/- from one Murthy and also in
order to clear the said loan, he obtained an amount of
Rs.1,50,000/- from Prakash. It is suggested that in order
to clear the said loan, 6 Cheques are obtained and the
same was denied. He admits that he came to know about
initiation of case by said Prakash and suggestion was
made that Prakash, out of 6 Cheques, one Cheque was
given to him to file the case and the said suggestion was
denied. He admits that the Cheque was presented twice.
When the Cheque was presented and returned and he was
informed to the accused. But, not communicated him
through writing. In further cross-examination, he admits
that on 11.06.2008, when he made the payment, he was
having an amount of Rs.15,00,000/- in his account. When
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the question was put to him that in Ex.P9 whether he was
having Rs.15,00,000/- and he says that there was an
entry in the document Ex.P9 and also he says that some
amount was there in the house also. He was also an
income tax assessee upto 2015 and he has not produced
any document and no difficulty to produce the same. A
suggestion was made that he is falsely deposing that he is
having an amount of Rs.15,00,000/- in his account and
the said suggestion was denied. The suggestion was made
that only in order to prove that he was having money, he
created the document Ex.P9 and the said suggestion was
denied. On the other hand, the complainant was also
examined PW2 and he says accused borrowed an amount
of Rs.15,00,000/- from the complainant for the purpose of
site purchase in his presence by way of cash and also by
way of executing consent deed dated 11.06.2008 and
accused has issued a Cheque for an amount of
Rs.15,00,000/-. This witness was also subjected to cross-
examination, he says that he knows the accused from last
20 years. He was not aware of earlier transaction between
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accused and complainant prior to 11.06.2008. He admits
the signature in Ex.P4. He has signed the said document
at around 2.30 p.m., and amount was given in the house
of the complainant while signing the said document, the
said document was prepared at Chikkajala and by that
time, the amount was not given. But, the amount was
given in the house of complainant. He admits that if any
document is created at that time, amount will be paid. At
the time of signing the said document, he himself,
accused, complainant and Harish and others were not
there. No panchayat was made when the amount was not
paid. The suggestion was made that no amount was paid
to him and the said suggestion is denied.
4. The other witness is PW3 and he also re-
iterates in the line of the evidence of PW2 and this witness
also subjected to cross-examination and he admits that
Prakash is his brother-in-law. When the suggestion was
made that Prakash has also filed the case against him in
C.C.No.1376/2009, he says that he is not aware of the
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same. He admits that Ex.P4 was signed in the house of
complainant. But, he did not read the contents of the
document and also he is not read the affidavit of his chief
evidence. The accused is also examined as DW1 and he
says that he has not made any transaction with the
complainant and also no talks were held between both of
them. But he is having acquaintance with him. He claims
that Ex.P1-Cheque was given to the Prakash. He has
availed an amount of Rs.1,50,000/-. He says that he has
availed the amount from M.N.Murthy. Hence, to return the
said amount, he had availed an amount of Rs.1,50,000/-.
He had obtained 6 blank Cheques and also signatures on
the two stamp papers and produced the Ex.D1 with the
stamp paper. He says that he repaid the amount but
Prakash demanded more interest and also he gave notice
to him and Ex.D2 is marked and the said Prakash was not
given any reply. The said Prakash out of 6 Cheques,
presented two Cheques and another Cheque got presented
through the complainant and also says that Prakash has
given notice to him in terms of the Ex.D3. He gave the
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reply to the Ex.D3 and the same is marked as Ex.D4. The
contents of Ex.D1 is not in his hand writing and false case
has been registered against him. He was subjected to
cross-examination and he admits that he is the owner of
Dighvijaya Medical Store. He claims that the documents
which have been produced by the complainant are false
document and Ex.P4 is also confronted to him. He admits
the signature Ex.P4(a) and Ex.P4(b) are belongs to him.
He claims that he has signed the said blank paper and
given to the Prakash. He suggested that he availed the
loan from complainant on 11.06.2008 and he has given
the Cheque in terms of Ex.P1. It is suggested first time
when the Cheque was presented, the same was
dishonored and hence he gave the instructions to
re-present the same, the said suggestion was denied. It is
suggested that on 11.06.2008 in order to purchase the
site, he had availed the loan of Rs.15,00,000/- and given
the Cheque in terms of Ex.P1, the said suggestion was
denied. He admits the issuance of notice on 06.06.2009
and in the further cross-examination, he admits that he
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gave the reply to the notice in terms of Ex.D5 and also
admits the signature found in Ex.D1 and claims that he
had signed on the blank Cheque and he also admits in
Ex.P5, K.C.Narayanaswamy and also Harish have also
signed, but claims that he do not know the contents of the
document since he had signed empty stamp paper.
5. The revision petition Crl.R.P.No.177/2021 is in
respect of C.C.No.1376/2009 filed by one Prakash in the
complaint he has stated both of them are known to each
other for more than 12 years. During the first week of
October, the accused has approached the complainant for
financial assistance for domestic necessities, personal
commitments for construction of the house and also for
business purpose and on humanitarian ground he made
the payment of Rs.20,50,000/- on 06.10.2008 and in turn
the accused has undertake to pay the amount within two
months. He gave the two Cheques one for Rs.10,50,000/-
and another Cheque for an amount of Rs.10,00,000/-.
When the Cheque was presented on 07.05.2009, the same
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was returned with an endorsement " Payment Stopped by
Drawer " and notice was given and accused has given
untenable reply. The complainant also filed the compliant
and sworn statement also recorded and thereafter the
Trial Court took the cognizance and secured the accused.
The accused did not plead guilty and hence, the
complainant in his chief evidence he re-iterated the
contents of complainant and he got marked the document
Ex.P1 to Ex.P11. He was subjected to cross-examination.
He admits in the cross-examination that he studied upto
SSLC and he knows reading and writing Kannada and
English language. He is an agriculturist and also having
mobile shop and his income upto Rs.30,000/- per month
and he is not having any document to show the same. He
admits the issuance of notice and the same is handed over
to his counsel and the document was confronted and he
admits notice which is marked as Ex.P1, he also admits
that in the month of October-2008, he was having
Rs.20,50,000/- and to show the same, he has not
produced any document and hence, the same is not
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disclosed. He gave the money in the shop of the accused.
At that time, one Ravi and Muniraju both were there. On
the same day, accused gave Cheque and also signed the
consent deed. He obtained the Cheque for security and his
total income per year is Rs.5,00,000/-. He is not an
income tax assessee. He is not having any document to
show that he is having income of Rs.5,00,000/- per year.
The document Ex.P7 was executed on the same day. While
handing over the Cheque, he has mentioned the date as
12.12.2008. He has given the Cheque on 06.10.2008 itself
and the same is also mentioned in the document Ex.P7. He
also admits that he is having acquaintance with Murthy
and Umesh and also knows about case filed by Murthy
against the accused. He also admits that in Ex.P1 it is
mentioned that to come and take the money of
Rs.1,50,000/-. He admits that in Ex.D1, both the Cheque
numbers are mentioned and he did not made any attempt
to collect the amount of Ex.D1. He also admits that in
Ex.D1 itself mentioned collecting of stamp papers. He
admits that he has no any difficulty to examine Ravi and
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Muniraju. It is suggested that he has not made the
payment of Rs.20,50,000/- and the same was denied.
However, he contend that he had availed an amount of
Rs.1,50,000/- and the said suggestion was denied. Further
suggestion was made that the accused is ready to pay an
amount of Rs.1,15,000/- with interest and the same was
denied and he claims that he was due for an amount of
Rs.20,50,000/- and not for an amount of Rs.10,50,000/-.
He admits that in order to make payment more than
Rs.20,00,000/-, he has to make payment through the
Cheque. He admits that the Ex.P1 and Ex.P2 are returned
infront of the accused to pay himself and also admits the
ink in both the Ex.P1 and Ex.P2 are different. The Ex.P7
was typed at Chikkajaala. The accused only brought the
said Ex.P7 and suggestion was made that he did not
execute the document Ex.P7, the same was denied. He
admits Ex.P7 was not registered. He admits that an
amount of Rs.20,50,000/- was not paid by way of Cheque
or by way of D.D and also through RTGS. He did not
obtain any other documents except the documents which
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have been produced before the Court. He also admits that
in order to prove that he was having an amount of
Rs.2,00,000/-, no documents are produced. He admits
that after the issuance of notice in terms of Ex.D1,
thereafter only he had presented the Cheques. He admits
that he himself, Murthy and Umesh all are friends. It is
suggested that when he made payment of Rs.1,50,000/-
he has obtained 6 Cheques, the said suggestion was
denied. It is suggested that in order to return the said
amount, it was agreed to return the same in 6 installments
at rate of Rs.25,000/-, the said suggestion was denied.
The complainant was further examined and got marked
document Ex.P12 to Ex.P15, he was subjected to further
cross-examination and in further cross-examination on
03.10.2008, he himself and his mother were not having
any joint account. He admits that on 03.10.2008, in
Ex.P12 for having made the payment of Rs.5,00,000/- is
mentioned. He cannot tell when remaining amount was
remitted to his account. He is not having any document for
having made the payment of Rs.2,20,000/-. The
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suggestion was made that in Ex.P15 there was no any
entry for withdrawing of amount of Rs.20,20,000/-, the
same is admitted. He admits that in terms of Ex.P13 an
amount of Rs.11,25,000/- was paid and the same is
distributed to 15 persons. It is suggested that if it is
distributed only, he will get Rs.75,000/- and the said
suggestion was denied. He admits that in terms of Ex.P13,
amount was not credited to his account. It is suggested
that Ex.P12 to Ex.P15 are created and produced before the
Court and the same is denied. He also examined PW2 -
Ravi and he says he was present when the amount of
Rs.20,50,000/- was borrowed and also deed of consent
was executed. In the cross-examination he also admits the
signature in Ex.P7(c). He was subjected to cross-
examination and in the cross-examination he admits that
there is some slight difference in signature in the chief
evidence as well as in Ex.P7(C), but he gives an
explanation that Ex.P7(c) was signed in urgency. He
admits that he cannot tell on what date accused came and
demanded the money with the complainant and also he
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admits that in Ex.P7 his full details are not mentioned. He
had signed the same in Vidyanagar Cross. He also admits
that the complainant called him and hence, he came and
gave evidence. He went at around 1.30 p.m., and he made
an attempt to know the contents of Ex.P7. He cannot tell
on what date the amount was paid. On the date of
transaction two Cheques are obtained and consent deed is
also obtained, the said Cheque was signed by the accused
and given to the complainant. The complainant himself has
filled up the same. He had agreed to repay the amount
within 2-3 months and the amount was paid in cash. He
cannot tell how much amount was there when the
payment was made.
6. The other witness is PW3 is Muniraju and his
evidence is also corollary to the evidence of PW2 and he
was also subjected to cross-examination and in the cross-
examination he has deposed that he knows both
complainant and accused. He studied up to 8th standard.
He did not count the amount given by the complainant to
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the accused. He cannot tell how much amount was there
when the payment was made. Complainant called him to
make the signature in Ex.P7 and he identifies the
signature as Ex.P7(b). He also says that amount was
payable within 3-4 months, the same is not mentioned in
Ex.P7. The amount was paid on when he had signed the
document on Ex.P7 itself. But, he does not remember the
date. Other than the document of Ex.P7, 2 Cheques are
collected as security.
7. The DW1 was also examined and he re-iterates
similarly in the case in which he gave the evidence in
C.C.No.1375/2009 and an amount which he has received
is Rs.1,50,000/- repayable in 6 installments at the rate of
Rs.25,000/-. He was subjected to cross-examination, he
admits that he is having provision store and also he did
B.Pharmacy and he is also the owner of the provision store
and also the owner of Medical Store. He admits the
issuance of notice dated 06.06.2009 and the same was
served on him. He admits the signature in Ex.P1 and P2. It
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is suggested that he has availed an amount of
Rs.20,50,000/-, the same was denied. It is also suggested
that on 06.10.2008, he also signed consent deed, but he
claims that he has obtained the signature on the blank
Stamp paper. It is suggested that when the Cheque was
presented first time, the same was returned and he told
him to re-present the same. He admits that he has not
produced the receipt for having given the notice on
02.05.2009, but he claims that he has given the same to
his Advocate. It is suggested that he is falsely deposing
that he is only liable for an amount of Rs.1,50,000/- and
not Rs.20,50,000/-, the said suggestion was denied. It is
suggested that he gave only the Cheques Ex.P1 and Ex.P2
and not given any six Cheques, the said suggestion was
denied, but he claims that he has given six Cheques.
8. Having Considered both oral and documentary
evidence placed on record. The contention of the learned
counsel for the revision petitioner in both the cases that
the revision petitioner had availed an amount of
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Rs.1,50,000/- from one Prakash not an amount of
Rs.20,50,000/- from him as well as he has not availed an
amount of Rs.15,00,000/- from one Umesh that is the
complainants in the respective petitions. It is the
contention of the revision petitioner is that the said
Prakash had obtained six Cheques and also obtained the
signatures on the blank stamp papers by lending the
money of Rs.1,50,000/- and those Cheques and stamp
papers were misused. The counsel also would vehemently
contend that notice was issued for the first time on
06.06.2009 before that notice was given to the
complainant on 02.05.2009 also and there is an admission
on the part of the petitioner that the complainant has
received the notice. Hence, the case of the revision
petitioner is probable that only an amount of
Rs.1,50,000/- was lent and not Rs.20,50,000/-.
9. The counsel in his arguments would vehemently
contend that in Crl.R.P.No.96/2021, it is the claim of the
complainant that Rs.15,00,000/- was paid to the revision
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petitioner. The specific contention of the revision
petitioner that out of six Cheques, one Cheque was given
to Umesh-complainant and misused the said Cheque. The
counsel would vehemently contend that in the complaint it
is mentioned as an amount of Rs.1,50,000/- and later it
was re-writed as Rs.15,00,000/-. Hence, it is clear that
the very case of the complainant is doubtful and answer
elicited from the mouth of the witnesses of this
complainant is very clear that transaction is only to the
tune of Rs.1,50,000/-.
10. The counsel for the petitioner in support of his
arguments relied upon the judgment reported in (1996) 2
SCC 739 in the case of ELECTRONICS TRADE AND
TECHNOLOGY DEVELOPMENT CORPN. LTD.,
SECUNDERABAD vs INDIAN TECHNOLOGISTS AND
ENGINEERS (ELECTRONICS) (P) LTD. AND ANOTHER
and the counsel referring this judgment brought to notice
of this Court to the principles held in the judgment that if
after the Cheque is issued to the payee or to the holder in
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due course and before it is presented for encashment,
notice is issued to him not to present the same for
encashment and yet the payee or holder in due course
presents the Cheque to the bank for payment and when it
is returned on instructions, Section 138 does not get
attracted. In the case on hand also the counsel would
vehemently contend that after issuance of notice only,
Cheque was presented.
11. The counsel also in support of his arguments
relied upon the judgment reported in (2019) 5 SCC 418
in the case of BASALINGAPPA vs MUDIBASAPPA
wherein the Apex Court discussed with regard to the
standard of preponderance of probabilities.
12. The counsel also relied upon the judgment
reported in (2009) 4 SCC 193 in the case of
KALIAPERUMAL vs RAJAGOPAL AND ANOTHER and
the counsel brought to notice of this Court paragraph 17
wherein also discussed with regard to payment of
consideration is concerned and also discussed passing of
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title and Section 54 of the Transfer of Property Act. It is
also discussed that in the event of non-payment of price
(or balance price as the case may be) therefore, the
remedy of the vendor is only to sue for the balance price.
13. Per contra, the counsel for the respective
respondents in his argument would vehemently contend
that an amount of Rs.20,50,000/- was paid on 06.10.2008
and Cheque was issued on the very same day agreeing to
repay the said amount within two months and not only
issued the Cheque but also executed the consent deed
which is also marked before the Court. The counsel also
would vehemently contend that the accused has admitted
the Cheque as well as the signature available in the
consent deed. The counsel also would vehemently contend
that the Cheques were presented on 02.05.2009 and the
accused contention is that on 02.05.2009, notice was
issued but the notice is dated 02.05.2009 only which was
served after four days and hence, it is clear that the
accused is having knowledge of return of the Cheque. The
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counsel contend that the Cheque was admitted and
transaction also admitted but defence is that only an
amount of Rs.1,50,000/- was received. The counsel also
would vehemently contend that no document is produced
before the Court to show that notice was issued on
02.05.2009 itself i.e., postal receipt or acknowledgment
for having served the notice on 02.05.2009. If any
amount has been paid through Cheque, the same has to
be declared in the income tax but the very contention that
same has not been shown in the income tax declaration.
The counsel referring the judgment of KALIAPERUMAL's
case (referred supra) (which relied by the counsel for the
petitioner) would contend that the said judgment is not
applicable to the facts of the case on hand and same is in
respect of civil case only in case of non-payment of
balance price, then the remedy is to recovery for balance
payment and hence, the said judgment is not applicable to
the facts of the case on hand.
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14. The counsel also in his arguments would
vehemently contend that the judgment which have been
referred by the counsel for the revision petitioner in the
case of ELECTRONICS TRADE AND TECHNOLOGY
DEVELOPMENT CORPN. LTD (referred supra) was
overruled by the judgment of the Apex Court reported in
1998 AIR SCW 842 in the case of M/S MODI CEMENTS
LTD vs KUCHIL KUMAR NANDI and brought to notice of
this Court paragraph 15 wherein also referring the very
same judgment, the Apex Court held that suppose after
the Cheque is issued to the payee or to the holder in due
course and before it is presented for encashment, notice is
issued to him not to present the same for encashment and
yet the payee or holder in due course presents the Cheque
to the Bank for payment and when it is returned on
instructions, Section 138 does not get attracted is
accepted as good law, the very object of introducing
Section 138 in the act would be defeated. The counsel
would contend that the said judgment is very clear that
the earlier judgment is overruled and the same is also
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mentioned in the very judgment itself. Hence, judgment
relied upon by the petitioner in ELECTRONICS TRADE
AND TECHNOLOGY DEVELOPMENT CORPN. LTD's case
(referred supra) is not applicable to the facts of the case
on hand.
15. The counsel also would vehemently contend
that in respect of source of income and capacity is
concerned, the petitioner's counsel relied upon
BASALINGAPPA's case (referred supra) and the said
judgment is also not applicable to the case on hand since
the Apex Court in the judgment reported in (2022) 6 SCC
735 in the case of TEDHI SINGH vs NARAYAN DASS
MAHANT held that accused can rebut the presumption by
establishing probable defence that no consideration was
received from complainant. But further held that
complainant need not show in first his financial capacity,
unless accused sets up a case questioning complainant's
capacity in reply to statutory notice, accused can set up
such a case by producing independent materials or by
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pointing to materials produced by complainant himself or
cross-examining witnesses of complainant, Court has to
decide by appreciating totality of evidence. Further held
that however is expressly made subject to the position
being proved to the contrary. In other words, it is open to
the accused to establish that there is no consideration
received. Section 139 of the NI Act is an example of
reverse onus, and the accused is not expected to
discharge an unduly high standard of proof. It is
accordingly that the principle has developed that all which
the accused needs to establish is a probable defence. As
to whether a probable defence has been established is a
matter to be decided on the facts of each case on the
conspectus of evidence and circumstances that exist. The
counsel also brought to notice of this Court that in this
judgment, in paragraph 3, the said fact is also discussed.
The counsel also brought to notice of this Court the
discussion made in paragraph 7 wherein discussed with
regard to either in the reply notice or in 313 statement
taken the contention that he was not having any financial
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capacity to give the hand loan. The Apex Court also
discussed that he further ends by saying that the appellant
does not have a case regarding the capacity of the
respondent to loan the amount which remained after
deducting the amount referable to the withdrawal from the
bank. He further would contend that Court may bear in
mind that three Courts have held against the appellant
and no case is made out for reference. The counsel also
brought to notice of this Court paragraph 8 wherein also
discussed with regard to the probable defence is
concerned and an observation is made that in an earlier
judgment, in fact, which has also been adverted to in
BASALINGAPPA's case, this Court notes that Section 139
of the NI Act is an example of reverse onus (see Rangappa
vs Mohan case also). It is also true that this Court has
found that accused is not expected to discharge an unduly
high standard of proof. It is accordingly that the principle
has developed that all which the accused needs to
establish is a probable defence. As to whether a probable
defence has been established is a matter to be decided on
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the facts of each case on the conspectus of evidence and
circumstances that exist. The counsel also brought to
notice of this Court paragraph 10 wherein also discussion
was made with regard to the making out the probable
case. Ultimately, it becomes the duty of the Courts to
consider carefully and appreciate the totality of the
evidence and then come to a conclusion whether in the
given case, the accused has shown that the case of the
complainant is in peril for the reason that the accused has
established a probable defence. The counsel referring this
judgment would vehemently contend that when the
defence was taken during the course of cross-examination,
the complainant produced the document of Ex.P12 to P15
to show that there was a sale transaction prior to the loan
transaction and power of attorney also produced as Ex.P14
and apart from that Ex.P15 passbook is also produced.
16. The counsel brought to notice of this Court to
the written arguments filed before the Trial Court wherein
it is stated that the transaction was made to the extent of
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Rs.45,00,000/- and though denied by the petitioner that
no such transaction was made and the same is created, no
probable case is made out by the revision petitioner.
17. Having considered the principles laid down in
the judgments referred supra and also the contentions of
the respective parties, it is not in dispute that cheque in
both the cases at Ex.P1 and P1 and P2 respectively bears
the signature of the revision petitioner. It is also
important to note that in both the cases even consent
deed is also produced at Ex.P7 and P4 respectively. The
accused also not disputes the consent deed at Ex.P7 and
P4 but his only contention that blank stamp papers were
taken at the time of lending the loan. It has to be noted
that it is the contention of the accused that he gave six
blank cheques in favour of the complainant-Prakash and
out of the said six cheques, one cheque was given to the
Umesh. But the fact is that the accused is a D.Pharma
holder and that is not disputed and he is also an educated
one and doing the business. It is his case that an amount
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of Rs.1,50,000/- was lent for purchase of the property and
not availed Rs.20,50,000/- by the complainant -Prakash
for his commitment and also for the business purpose.
When Ex.P1 in one case and Ex.P1 and P2 in another case
issued and also even the stamp papers are also signed
according to him, what made him to execute the blank
stamp papers being an educated one but no explanation is
given by the accused in this regard.
18. It is also important to note that in respect of
both the cases, the respective complainants have also
examined PW2 and P3 with regard to proving of lending of
money and also execution of consent deed. In the cross-
examination of PW2 and PW3 in both the cases, nothing is
elicited from their mouth to disbelieve the transaction is
concerned. PW2 and PW3 in both the cases have
categorically deposed that in their presence only the
amount was lent and also the accused executed the
consent deeds in terms of Ex.P4 and P7. Hence, there are
no any material contradictions in the evidence of PW2 and
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PW3 in both the cases with regard to doubting of
execution of documents at Ex.P4 and P7.
19. It is also important to note that no doubt, the
counsel for the revision petitioner would vehemently
contend that in terms of judgment in the case of
ELECTRONICS TRADE AND TECHNOLOGY
DEVELOPMENT CORPN. LTD (referred supra), if notice
was given prior to presentation of the cheque, Section 138
does not attract and the said judgment is overruled by the
Apex Court in the judgment of M/S. MODI CEMENTS
LTD., (referred supra) hence, the judgment of
ELECTRONICS TRADE AND TECHNOLOGY
DEVELOPMENT CORPN. LTD (referred supra) relied
upon by the counsel for the petitioner will not help to the
petitioner. It is also important to note that in terms of
Ex.P4, cheques were presented on 02.05.2009 and no
doubt, the counsel for the revision petitioner also brought
to notice of this Court that the notice was issued on
02.05.2009. In order to prove that on particular date, the
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said notice was issued but postal receipt or postal
acknowledgment in that regard has not been produced.
The very admission that the said notice is dated
02.05.2009 is not a ground to disbelieve the case of the
complainant.
20. It is also important to note that Ex.P4 is very
clear that for the first time, cheque was presented on
02.05.2009 and mere admission that he has issued the
notice, that cannot take way the case of the complainant.
It is also the case of the complainant that immediately
when the cheque was returned, the same was brought to
notice of the accused and the accused only requested to
present the said cheque once again. It is also settled law
that at any times, cheque can be presented and last
presentation must be within time, the same can be
considered.
21. The counsel for the petitioner also relied upon
the judgment in the case of BASALINGAPPA (referred
supra) and no doubt, in that case and subsequent
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judgment in the case of TEDHI SINGH (referred supra),
the Apex Court held with regard to the probable defence is
concerned. In the case on hand, except examining the
accused himself as DW1 in both the cases, no other
material is placed before the Court. It is also settled law
that ultimately, it becomes the duty of the Courts to
consider carefully and appreciate the totality of the
evidence and then come to a conclusion whether in the
given case, the accused has shown that the case of the
complainant is in peril for the reason that the accused has
established a probable defence.
22. But in the case on hand, except self serving
statement of the accused, nothing is placed before the
Court and also the very contention that an amount which
they have received in terms of Ex.P12 to P15, not the
amount of Rs.15,00,000/- as well as Rs.20,50,000/-.
Document at Ex.P12 - sale deed discloses that prior to the
advancement of the loan of the year 2008, sale
transaction was made and the document at Ex.P13 which
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is dated 28.07.2006 also discloses that prior to the said
loan transaction, there was a sale consideration of
Rs.11,25,000/-. No doubt, there is an admission on the
part of PW1 that if it is bifurcated to the total members of
the sellers, it comes to Rs.75,000/- and suggestion was
made that he has received only Rs.75,000/- but said
suggestion was denied. It is also important to note that
power of attorney in terms of Ex.P14 executed on
15.11.2007 that is also in respect of property bearing
Sy.No.35 measuring 4 guntas in favour of one Surya
Kumar that is executed by the family members of the
complainant-Prakash.
23. It is also important to note that sale deed is
marked as Ex.P12 dated 03.10.2008 and payment is also
made subsequently on 06.10.2008 that is subsequent to
the sale deed of Ex.P12 and sale deed was registered on
03.10.2008 itself and sale consideration is shown as
Rs.7,20,000/-. All these documents more probable than
the case of the accused and accused has not probabilised
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his case with regard to the defence is concerned that the
complainant was not having any capacity. All these
documents are prior to the loan transaction. Apart from
that it is rightly pointed out by the counsel for the
respondent that when the reply notice was given in terms
of Ex.P11, no such defence was taken that he was not
having any capacity and for the first time only while cross
examining the witnesses, said defence was taken. The
counsel for the complainant also read the entire notice,
but nowhere it is contended that he was not having any
capacity except mentioning that only transaction was for
Rs.1,50,000/-. Hence, what made the petitioner to give
six cheques and also execute the blank papers when he
has only received an amount of Rs.1,50,000/-, but, no
explanation in this regard hence, the petitioner not
probabilised the case as held by the Apex Court in TEDHI
SINGH'S case (referred supra). No doubt, the Apex Court
also not overruled the judgment of BASALINGAPPA'S
case (referred supra). But the same is reiterated and held
that ultimately the Court has to take note of the fact of
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each case while considering the capacity is concerned.
When such being the case, the material available on
record is very clear that there was a transaction between
them and there is a clear admission on the part of the
accused for having signed in both Ex.P1 and P1 and P2
respectively in both the cases and also consent deed is
also marked and consent deed witnesses were also
examined as PW2 and PW3. When such being the case,
even bank statement also produced before the Court that
is passbook which is marked as Ex.P15. Though a
passbook is not available before the Court but the counsel
appearing on behalf of the accused also cross examined
the witnesses with regard to the Ex.P15 passbook is
concerned and his only contention is that the same is
created one. The registered document cannot be created
and apart from that Ex.P15 though not available before
the Court to show that there was transaction in respect of
amount of Rs.47,00,000/- as contended by the accused
counsel, the evidence of the complainant has not been
rebutted by the revision petitioner. Hence, having
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considered the material available on record and in the
absence of any probable defence by the accused, the
question of interfering with the findings of both the Courts
does not arise. Both the Courts taken note of admitted
document at Ex.P1 in one case and Ex.P1 and 2 in another
case that is the cheque as well as the consent deed at
Ex.P7 and P4 respectively and apart from that the
document Ex.P15 i.e., the bank passbook with regard to
the transaction made by the complainant, while passing
the order also taken note of the defence taken by the
accused wherein he contended that the complainant has
no capacity, it is rightly pointed out that in the first
instance when the reply was given, no such defence was
given and also in 313 statement also not taken such
defence. Hence, the case of the complainant is more
probable than the case of the accused. Thus, I do not find
any merits to interfere with the findings of the Trial Court
as well as the First Appellate Court. The scope of revision
is very limited and when material available on record has
not been considered in a proper perspective, under such
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circumstances, the revisional Court can exercise its
powers. But in the present petitions, I do not find any
error on the part of the First Appellate Court as well as the
Trial Court in considering the material available on record.
There is no merit in both the revision petitions.
24. With regard to the fine amount is concerned, in
case of Rs.15,00,000/-, the Trial Court has imposed fine of
amount of Rs.20,00,000/- and also in the case of
Rs.20,50,000/-, the Trial Court has imposed fine of
Rs.30,00,000/-. The transaction is of the year 2008 and
the cases were disposed of in the year 2019 and 2020
respectively that means after a decade. Taking into note
of the fact that all of them are friends and having
acquaintance with each other and the same is also
emerged in the evidence, it appears that the fine amount
imposed by the Trial Court appears to be on higher side.
The transaction for an amount of Rs.15,00,000/- and
Rs.20,50,000/- were not declared in the Income Tax
returns and admission is clear that drawing of money and
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making payment is not evident from any records but
claimed the capacity by adducing evidence. Hence, it is
appropriate to order for only Cheque amount.
25. In view of the discussions made above, I pass
the following:
ORDER
i) The revision petitions are dismissed.
ii) In C.C.No.1376/2009, in respect of
Rs.30,00,000/- fine amount is concerned, it is reduced to
Rs.20,50,000/- i.e., Cheque amount and in
C.C.Nol.1375/2009, in respect of Rs.20,00,000/- fine
amount is concerned, the same is reduced to
Rs.15,00,000/- i.e., Cheque amount. The revision
petitioner is directed to pay fine amount of Rs.10,000/- in
each case within a period of 4 weeks from the date of the
order and the same shall vest with the State.
Sd/-
JUDGE
RHS/SN
