Karnataka High Court
Sri Dinakara Shetty vs M/S. City Finance Corporation (Regd.) on 11 January, 2024
1 CRL.RP NO.712 OF 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.712 OF 2020
BETWEEN:
SRI DINAKARA SHETTY
S/O. A. NARAYANA SHETTY,
AGED ABOUT 58 YEARS,
R/AT VAKWADY VILLAGE AND POST,
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201.
...PETITIONER
(BY SRI. NAGARAJA HEGDE, ADVOCATE)
AND:
M/S CITY FINANCE CORPORATION (REGD.)
N.G.O. BUILDING,
NEAR SHASHTRI CIRCLE,
KUNDAPURA.
REP. BY ITS WORKING PARTNER,
SRIKANTH SHETTY,
S/O. DR. K. KUSHALA,
AGED ABOUT 50 YEARS,
R/AT THEKKATTE VILLAGE,
KUNDAPURA TALUK,
UDUPI DISTRICT-576 201.
.....RESPONDENT
(BY SRI. HARSHA G, ADVOCATE FOR
SRI. SACHIN B.S, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING THAT AFTER PERUSING THE RECORDS SET
ASIDE THE JUDGMENT DATED 13.10.2020 PASSED BY THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE, UDUPI
(SITTING AT KUNDAPURA), KUNDAPURA IN CRIMINAL
2 CRL.RP NO.712 OF 2020
APPEAL NO.15/2015 AND THEREBY CONFIRMING THE
JUDGMENT OF CONVCITION AND SENTENCE DATED
09.09.2015 PASSED BY THE ADDITIONAL CIVIL JUDGE AND
J.M.F.C., KUNDAPURA IN C.C.NO.3101/2002, WHICH IS
PRODUCED AT ANNEXURE-A AND B RESPECTIVELY; b) GRANT
SUCH OTHER AND FURTHER RELIEFS AS THIS HON'BLE
COURT DEEMS FIT CONSIDERING THE FACTS AND
CIRCUMSTANCES OF THE CASE, TO MEET THE ENDS OF
JUSTICE.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 06.12.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This is a petition filed by accused, challenging his
conviction and sentence for the offence punishable under
Section 138 of the Negotiable Instrument Act (for short
'N.I.Act') imposed by the trial court, which came to be
confirmed by the Sessions Court, by dismissing the
appeal filed by him.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. It is the case of the complainant that it is a
registered firm dealing in money lending and investment
business. On 16.10.2010, accused borrowed loan of
Rs.80,000/- from the complainant firm, with a promise to
repay the same with interest. However, he failed to keep
up with his promise. On 19.09.2002, accused was due in
a sum of Rs.1,20,000/-. When complainant demanded
the said amount, accused issued a cheque dated
19.09.2002, for a sum of Rs.1,20,000/-. However, on
23.09.2002, when complainant present the cheque for
realization, it was returned dishonoured for "Funds
insufficient". Complainant got issued a legal notice dated
30.09.2002. It is duly served on the accused. However,
he has neither paid the amount due under the cheque
nor sent any reply and hence the complaint.
4. After due service of summons accused
appeared through counsel and contested the matter.
5. In order to prove the allegations against the
accused, on behalf of complainant one witness is
examined as PW-1 and Ex.P1 to 20 are marked.
6. During the course of his statement under
Section 313 Cr.P.C, the accused has denied the
incriminating evidence brought on record by the
complainant.
7. Accused has not led any defence evidence.
8. Vide the impugned judgment and order, the
trial Court convicted the accused and sentenced him to
pay a fine Rs.2,20,000/- with default sentence.
9. Aggrieved by the same, the accused
approached the Session Court in appeal. However, vide
the impugned judgment and order, the Sessions Court
dismissed the appeal filed by him and thereby confirmed
the judgment and order of the trial Court.
10. Being aggrieved by the same, accused is
before the court contending that the impugned
judgments and orders passed by the Courts below are
improper, illegal and passed without application of mind.
Therefore, they are liable to be set aside. Initially trial
Court dismissed the complaint on the ground that
complainant has failed to establish the existence of
legally recoverable debt. However, on being challenged
by the complainant, the Sessions Court remanded the
matter for fresh disposal after providing opportunity to
both parties. After the remand complainant has produced
Ex.P9 to 20. It has no explanation as to why the said
documents were not produced earlier. The Sessions
Court has not properly appreciated the oral and
documentary evidence placed on record. The quantum of
fine imposed is also on the higher side and prays to allow
the petition and set aside the impugned judgments and
orders and acquit the accused.
11. In support of his arguments, the complainant
has relied upon the following decisions.
(i) Shree Daneshwari Traders Vs. Sanjay Jain
and Anr. (Shree Daneshwari Traders)1
(ii) National Agricultural Co-op Marketing
Federation of India (Nafed) Vs. Disha
Impex Pvt.Ltd (Disha Impex)2
12. On the other hand, learned counsel for
complainant has supported the impugned judgments and
orders and sought for dismissal of the petition.
(2019) 16 SCC 83
2021 SCC Online Kar 24: (2021) 1 KCCR 237
13. Heard arguments of both sides and perused
the record.
14. Thus, it is the definite case of complainant
that initially accused borrowed loan of Rs.80,000/-.
However, he failed to repay the same and as on
19.09.2002, he was due in a sum of Rs.1,20,000/- and
on request and demand made by the complainant, he
issued subject cheque for Rs.1,20,000/- which came to
be dishonored on presentation. Accused admitted that
the cheque in question is drawn on his account
maintained with his banker and it bears his signature.
Consequently, the presumption under Sections 118 and
139 of N.I Act is attracted that the cheque is issued
towards repayment of any legally recoverable debt or
liability and burden would be on the accused to prove
otherwise.
15. It is relevant to note that the accused has not
disputed the address to which legal notice sent, though
during cross-examination of PW-1 a suggestion is made
that the signature in the acknowledgement does not tally
with his signature in the cheque. However, no specific
suggestion is made that notice is not served on him.
Admittedly, the accused has not sent any reply to the
legal notice and thereby spelling out his defence at the
earliest available opportunity. During the cross-
examination of PW-1, a suggestion is made that the
cheque was issued at the time of borrowing the loan by
way of security. By making the suggestion, the accused
is indirectly admitting the fact that he has borrowed loan
of Rs.80,000/- from the complainant.
16. Admittedly, the accused has not produced any
evidence to show that he has repaid the loan or any part
there of. Of course it is not his defence that he has
discharged the loan. The documents produced by the
complainant prove that the accused has borrowed the
loan by executing necessary documents. As held by the
by the Hon'ble Supreme Court in Shree Daneshwari
Traders, the burden is on complainant to establish
fundamental facts to raise the presumption under Section
139 and thereafter the burden would shift on the accused
to rebut the same. In Kumar Exports Vs. Sharma
Carpets (Kumar Exports)3, at Para No.18, the Hon'ble
Supreme Court held that the presumption under Sections
118 and 139 of N.I Act will live, exist and survive and
shall end only when the contrary is proved by the
accused, that is, the cheque was not issued for
consideration and in discharge of any debt or liability.
17. In the present case, though the accused has
vehemently disputed his liability under the cheque, he
has not stepped into the witness box to prove his
defence. Except making certain formal suggestions, the
accused has also not elicited any material admissions to
establish that the case put forth by the complainant is
false and not reliable. Considering the oral and
documentary evidence placed on record, the trial Court
has come to a correct conclusion that the allegations
made against accused are proved. On re-appreciation of
the oral and documentary evidence, the Sessions Court
(2009) 2 SCC 513
has also rightly declined to interfere with the conclusions
arrived by the trial Court.
18. Having regard to the loan availed, the period
of litigation and the defence taken by him, the
punishment imposed by the trial Court is adequate and
reasonable and on this ground also, there is no scope for
interference by this Court. In the result, the petition fails
and accordingly the following:
ORDER
(i) Petition filed by the accused under Section
397 r/w 401 Cr.P.C is dismissed.
(ii) Consequently, the judgment and order
dated 09.09.2015 in C.C.No.3101/2002 on
the file of Addl.Civil Judge and JMFC.,
Kundapur and judgment and order dated
13.10.2020 in Crl.A.No.15/2015 on the file
of Addl.District and Sessions Judge, Udupi
(Sitting at Kundapura) are confirmed.
(iii) The Registry is directed to send back the
trial Court and Sessions court records
along with copy of this order forthwith.
Sd/-
JUDGE
RR
