Gopinath T vs Sri Rajagopala
2024 Latest Caselaw 2987 Kant

Karnataka High Court

Gopinath T vs Sri Rajagopala on 1 February, 2024

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                                   CRL.RP No. 444 of 2021


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
     DATED THIS THE 01ST DAY OF FEBRUARY, 2024
                       BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 444 OF 2021
BETWEEN:
   GOPINATH T
   S/O LATE THIMMEGOWDA
   AGED ABOUT 42 YEARS
   R/AT NO.383, 22ND MAIN,
   AGS LAYOUT, AREHALLIVILLAGE
   UTTARAHALLI HOBLI
   BANGALORE - 560 061.
                                              ...PETITIONER

(BY SRI. MANU K, ADVOCATE)

AND:
   SRI. RAJAGOPALA
   S/O LATE SHRINIVASMURTHY
   AGED ABOUT 60 YEARS
   R/AT NO.992, 23RD MAIN
   4TH BLOCK, JAYANAGAR
   BANGALORE - 560 041.
                                            ...RESPONDENT

(BY SRI. RAJA SUBRAMANYA BHAT B, ADVOCATE)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE DATED 14/11/2018 IN C.C.NO.24303/2014 PASSED
BY THE VI ADDITIONAL SMALL CAUSES JUDGE AND XXXI
ACMM COURT AT BANGALORE AND ORDER DATED 16.09.2020
PASSED IN CRL.A.NO.2516/2018 PASSED BY LXIX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH-70)

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 16.01.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                                  -2-
                                          CRL.RP No. 444 of 2021


                              ORDER

1. This Revision petition is filed by the petitioner being

aggrieved by the judgment of conviction and order of

sentence dated 14.11.2018 passed in C.C No.24303/2014

on the file of VI Additional Small Causes Judge and XXXI

Additional Chief Metropolitan Magistrate, Bengaluru and

its confirmation order dated 16.09.2020 in Crl.A

No.2516/2018 on the file of the LXIX Additional City Civil

and Sessions Judge, Bengaluru (CCH-70), wherein the

petitioner herein has been convicted for the offence

punishable under Section 138 of the Negotiable

Instruments Act (for short 'N.I Act').

2. The rank of the parties in the Trial Court henceforth will

be considered accordingly for convenience.

Brief facts of the case:

3. It is the case of the complainant that the accused being a

proprietor of High Tech Industries, known to the

complainant since two years. It is stated that, the

accused had approached him during the second week of

July along with one Sri.Chandrashekar S/o Veeraswamy

for financial assistance. As per the averments of the

complaint, the accused said to have requested loan for a

sum of Rs.20,00,000/- from the complainant. The

complainant said to have lent the amount of

Rs.20,00,000/- on 23.07.2013. The accused said to have

issued a cheque as security for the said amount. It is

further stated that, the accused had written a letter along

with the said Sri.Chandrashekar on 23.07.2013 that he

would repay the entire loan amount within a period of six

months along with interest at the rate of 1.5% per

month.

4. It is further stated in the complaint that, as per the

advice of the accused, the complainant presented the

cheque for encashment. However, the said cheque came

to be dishonoured with a shara as 'funds insufficient' and

intimation was received on 11.04.2014. The said fact

was brought to the knowledge of the accused by way of

notice dated 08.05.2014. The said notice has been

served to the wife of the accused. The accused after

having received the said notice has neither repaid the

amount nor replied to the said notice. Hence, it is

constrained the complainant to file a complaint before the

jurisdictional Magistrate.

5. To prove the case of the complainant, the complainant

examined himself as PW.1 and got marked eight

documents as Exs.P1 to P8. On the other hand, the

accused himself examined as DW.1 and got marked four

documents as Exs.D1 to D4. The Trial Court after

appreciating the oral and documentary evidence on

record, recorded the conviction of the petitioner herein

and the same has been confirmed by the Appellate Court

in the appeal filed by the accused/appellant.

6. Heard Sri.Manu.K, learned counsel for the petitioner and

Sri.B.Rajasubramanya, learned counsel for the

respondent.

7. It is the submission of the learned counsel for the

petitioner that the concurrent findings recorded by the

Courts below in recording the conviction and its

confirmation order by the Appellate Court are perverse

and illegal and the said findings are required to be set

aside.

8. It is further submitted that no notice was served to him

regarding dishonour of the cheque. Even though the said

notice is served, the same has been served to the wife of

the accused which is not deemed to be served in terms of

Section 64 of the Code of Criminal Procedure. Therefore,

the service of notice is held to be not served.

9. It is further submitted that since the petitioner could not

receive the notice, reply was not given to the said notice;

the Trial Court instead of considering the non-compliance

of section 138(b) of N.I. Act, proceeded to record the

conviction which is perverse and illegal. The Appellate

Court instead of appreciating the evidence and law on

record properly, confirmed the judgment of conviction,

which is liable to be set - aside.

10. It is further submitted that the accused has denied that

he had borrowed a sum of Rs. 20,00,000/- from the

complainant. In fact, the accused had transferred the

amount of Rs.16,00,000/- on 12.01.2013 to the account

of the complainant through RTGS. The amount of

Rs.20,00,000/- was repaid by the complainant by adding

Rs.4,00,000/- in addition to the amount which the

complainant had borrowed. It is further submitted that,

even though these aspects have been brought to the

notice of the Courts below, the Courts below have failed

to consider the said aspect and recorded the conviction

which is liable to be set - aside. Making such submission,

the learned counsel for the petitioner prays to allow the

petition.

11. Per contra, the learned counsel for the respondent/

complainant justified the concurrent findings recorded by

the Courts below and submitted that, the accused has

received the amount from the complainant. Both the

accused and his friend have approached the complainant

for financial assistance. Having considered the

acquaintance, the complainant has lent the amount on

23.07.2013 by issuing two cheques of Rupees

10,00,000/- each.

12. It is further submitted that the accused had issued a

cheque for the said amount to clear the loan which he

had borrowed from the complainant. The signature and

the cheque have been admitted by the accused. Once

the signature and the cheque are admitted, the

presumption has to be drawn in favour of the complainant

regarding liability. The Courts below have rightly drawn

the presumption and recorded the conviction which does

not require to be interfered.

13. It is further submitted that, both the accused and the

common friend Sri.Chandrashekar have executed two

unstamped documents by admitting the liability. Those

documents have been marked as Exs.P6 and P7,

considering the averments of the said documents, the

Courts below have rightly recorded the conviction which is

appropriate. Making such submission, the learned

counsel for the respondent prays to dismiss the appeal.

14. To substantiate his contention, the learned counsel for

the respondent relied on the judgment of the Hon'ble

Supreme Court in the case of GIMPEX PRIVATE

LIMITED v. MAJOJ GOEL1 and another case in the case

of RAJESH JAIN v. AJAY SINGH2.

15. After having heard the learned counsel for the respective

parties and also perused the findings of the Courts below,

the points which would arise for my consideration are:

i) Whether the findings of the Courts below in

recording the conviction of the accused for the

offence punishable under Section 138 of N.I Act

is justifiable?

AIR Online 2021 SC 865

AIR 2023 SC 5018

ii) Whether the petitioner herein made out grounds

to interfere with the said findings?

16. Before adverting to the facts of the case, it is necessary

to refer to the proposition of law with regard to the

Revisional jurisdiction of the Court. It is settled principle

of law that the Revisional Court usually will not interfere

with the findings of the Courts below, unless any

perversity or illegality is noticed in the said findings. In

order to ascertain as to whether any perversity or

illegality existed in the said findings, it is necessary to

have cursory look upon the evidence and documents on

record.

17. Before adverting to the facts of the case, it is relevant to

refer to the judgment of the Hon'ble Supreme Court for

the better understanding of proposition of law regarding

the Negotiable Instruments Act. It is relevant to refer to

the judgment of the Hon'ble Supreme Court in the case of

BASALINGAPPA v. MUDIBASAPPA3, paragraph No.25

reads thus:

"25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and

(2019) 5 SCC 418

139, we now summarise the principles enumerated by this Court in following manner:

25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof a for rebutting the presumption is that of preponderance of probabilities.

25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence.

Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.

25.5. It is not necessary for the accused to come in the witness box to support his defence."

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18. In another judgment namely RAJESH JAIN stated supra,

paragraph No.55 reads thus:

"55. At the stage when the courts concluded that the signature had been admitted, the court ought to have inquired into either of the two questions (depending on the method in which the accused has chosen to rebut the presumption) : Has the accused led any defence evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail :

Has the accused proved the non-existence of debt/liability by a preponderance of probabilities by referring to the "particular circumstances of the case"?"

On careful reading of the above principles laid down by the

Hon'ble Supreme Court, the burden heavily lies on the accused

to rebut the presumption. The accused either he may enter

into witness box to support his defence or it is open for him to

rely on the evidence led by him or he can also rely on the

materials submitted by the complainant. The said proposition

indicates that the accused need not enter into witness box as a

matter of routine to rebut the presumption.

19. Having considered the proposition laid down by the

Hon'ble Supreme Court in the above cited judgments, it is

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relevant to refer to the evidence of the accused.

According to the accused, he has not borrowed the

amount from the complainant and no loan transaction had

taken place between himself and the complainant. The

accused contended that on 12.01.2013 he had

transferred Rs.16,00,000/- to the complainant through

RTGS on the condition that the complainant should return

the said amount by adding another Rs.4,00,000/-.

Accordingly, on 23.07.2013, the complainant has repaid

the amount of Rs.16,00,000/- by adding Rs.4,00,000/-.

It is further stated that the cheque in question was issued

as a security when the accused had approached the

complainant to validate the project report of the accused.

It is also stated that, the complainant was working as a

finance consultant and valuer of the property.

20. On careful reading of Ex.D4 which is produced by the

accused, it indicates that the amount of Rs.16,00,000/-

has been transferred to the complainant through RTGS by

the accused. Even though the complainant in his

evidence has stated that the accused / petitioner used to

borrow money and repaid the amount of Rs.16,00,000/-

to the complainant, the complainant has not produced

any documents to show that the accused was borrowing

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the amount from the complainant. Mere making

statement that the accused used to borrow money is not

sufficient to prove the liability, unless the said statement

is followed by the documentary evidence. Therefore, it

can be inferred that the accused has rebutted the

presumption by producing Ex.D4.

21. It is settled principle of law that, once the presumption is

rebutted, obviously, the burden heavily lies on the

complainant to establish the existence of debt or liability.

22. Now it is relevant to refer to the evidence of PW.1 for

consideration. As per the evidence of PW.1, the accused

and his friend Chandrashekar had approached him for

financial assistance. The complainant said to have lent

amount of Rs.20,00,000/- on 23.07.2013. The accused

after having received the amount said to have issued

cheque as security along with two documents executed by

him and his friend Chandrashekar. Those documents

have been marked as Exs.P6 and P7.

23. Even though the complainant has not produced any

documents to show that he has lent an amount of

Rs.20,00,000/- to the accused, the accused himself has

admitted that he has received the amount of

Rs.20,00,000/- from the complainant. However, the said

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amount which the complainant had paid was not a loan

amount, but it is an amount which the complainant had

borrowed from the accused.

24. On careful reading of the evidence of both PW.1 and

DW.1 and the documents which they have relied upon, it

appears that the complainant has not proved the

existence of debt or liability. However, the Courts below

have failed to appreciate the evidence of DW.1 properly

and opined that the complainant has proved the case

beyond all reasonable doubt and recorded the conviction

which appears to be erroneous and the findings of the

Courts below are liable to be set aside.

25. In the light of the observation made above, the points

which arose for my consideration are answered as :

Point No.1 - in the 'Negative'

Point No.2 - in the 'Affirmative'

26. Hence, I proceed to pass the following:

ORDER

i) The Criminal Revision Petition is allowed.

ii) The judgment of conviction and order of

sentence dated 14.11.2018 passed in C.C

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No.24303/2014 by the VI Additional Small

Causes Judge and XXXI Additional Chief

Metropolitan Magistrate, Bengaluru and the

judgment and order dated 16.09.2020 in Crl.A

No.2516/2018 by the LXIX Additional City Civil

and Sessions Judge, Bengaluru (CCH-70) are set

aside.

iii) The petitioner is acquitted for the offence

punishable under Section 138 of N.I Act.

iv) Bail bonds executed, if any, stand cancelled.

Sd/-

JUDGE

Bss / Un