Karnataka High Court
Sri Suresh Pai vs Mr Jayanth Prabhu on 4 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:19166
CRL.RP No. 1211 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.1211 OF 2015
BETWEEN:
SRI SURESH PAI
AGED 45 YEARS,
S/O APPURAYAPPA PAI,
R/AT AKSHAYA APARTMENTS,
NEAR SHEDIGUDDA MARKET,
KARANGALPADY, MANGALURU-575 001
...PETITIONER
(BY SRI P.P.HEGDE, SR. COUNSEL FOR
SMT.RACHITHA RAJSHEKAR, ADVOCATE)
AND:
MR JAYANTH PRABHU
AGED 43 YEARS,
S/O K.A.P. PRABHU,
MANAGING PARTNER,
M/S JYOSTHNA DIAGOSTIC,
R/AT 'CHAITRA', 4-3-75B,
Digitally
signed by R OPPOSITE FIRE STATION,
MANJUNATHA AJJARKAD, UDUPI DISTRICT - 576 101.
Location: ...RESPONDENT
HIGH COURT (BY SRI RESPONDENT -SERVED)
OF
KARNATAKA THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 17.07.2012
PASSED BY JMFC-V COURT, MANGALORE IN C.C.NO.363/2008,
WHICH IS CONFIRMED BY THE III ADDL. DIST. AND S.J.,
MANGALORE AS PER JUDGMENT DATED 23.06.2015 PASSED IN
CRL.A.NO.215/2012 AND ACQUIT THE PETITIONER HEREIN IN
C.C.NO.363/2008 ON THE FILE OF JMFC-V COURT,
MANGALORE.
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CRL.RP No. 1211 of 2015
THIS CRL.RP COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri P.P.Hegde, learned Senior Advocate for Smt.
Rachitha Rajshekar, learned counsel for the petitioner.
2. The Order of conviction passed by the JMFC (V Court),
Mangaluru, in Criminal Case No.363/2008 dated 17.07.2012,
confirmed in Crl.A.No.215/2012 dated 23.06.2015 on the file of
the III Addl. District and Sessions Judge, D.K. Mangaluru, is
assailed in this Revision Petition on the technical ground that
the cheque came to be issued in the name of M/s Jyotshna
Diagnostic which is a partnership firm and complaint came to
be instituted by one Jayanth Prabhu, one of the partner, in his
individual capacity.
3. Respondent, though served, has remained absent.
4. Having heard the arguments of the learned Senior
Advocate for the petitioner, this Court perused the material on
record, meticulously.
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5. The ground of attack is also with regard to the alteration
of the amount in the cheque by inserting the numerical '3'
behind the numbers '50,000/-', whereby, cheque was made to
appear to have drawn in a sum of 'Rs.3,50,000/-'.
6. This Court, in the light of the arguments, bestowed its
cautious attention to the cheque marked at Ex.P.1. There
appears to be an insertion of number '3' behind '50,000/-'
which is visible to naked eye.
7. According to the Revision Petitioner, there was a
transaction between the petitioner/accused and the
respondent-complainant, but entire amount was discharged in
respect of the said transaction and a cheque that was retained
by the complainant has been misused by the complainant and
case came to be filed.
8. Close scrutiny of Ex.P.1 also shows that the payee name
is mentioned as 'Jyotshna Diagnostic'. But said Jyotshna
Diagnostic is not made as party in the complaint. Complaint is
filed by one Jayanth Prabhu- respondent herein against the
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petitioner-Suresh Pai. Admittedly, Jayanth Prabhu is the
Managing Partner of the firm Jyotshna Diagnostic.
9. In other words, complaint is filed by Jayanth Prabhu in his
individual capacity and not as a partner of the payee in the
cheque. The complaint averments are also closely scrutinized
by this Court in this regard to find out whether any specific
averments are made in the complaint so as to find out that the
complainant is in fact 'Jyotshna Diagnostic' and not Jayanth
Prabhu in his individual capacity.
10. On perusal of the entire complaint, there is not even a
whisper that the complaint is filed for and on behalf of
'Jyotshna Diagnostic', but the averments, on the contrary,
would go to show that cheque is issued as if in the individual
name of Jayanth Prabhu.
11. Paragraph-4 of the complaint reads as under:
"That the complainant asked the accused to come on
20.07.2007 in consonance with his promise of extending
him the financial assistance to the tune of Rs.3,50,000/-
as the Accused being one of his bosom friends, and
accordingly on 20.07.2007 in the evening hours the
Accused approached the complainant at his residence of
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the complainant and the complainant extended the
accused, the needed financial assistance of
Rs.3,50,000/- in cash as a hand loan and towards
discharge of a legally enforceable and recoverable debt
the Accused issued to the complainant a duly filled up
post dated Account payee Cheque for a sum of
Rs.3,50,000/- dated 30.07.2007 drawn on Corporation
Bank Carstreet Branch, Mangalore bearing No.760030."
12. In other words, it depicts that it is individual transaction
of Jayanth Prabhu. But cheque is drawn in favour Jyotshna
Diagnostic. If at all the complaint averments as is referred to
in paragraph-4 supra is the real fact, accused would have
issued the cheque in the name of Jayanth Prabhu and not in the
name of Jyotshna Diagnostic.
13. In this regard, defence taken by the accused in the cross-
examination assumes importance inasmuch as both accused
and complainant are in the field of sale of medical equipments.
14. Perhaps, the cheque issued in the name of 'Jyotshna
Diagnostic', when the relationship between the complainant and
the accused was cordial, must have been misused by the
complainant to get himself benefitted on account of the spoiled
relationship between the complainant and the accused.
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15. At any rate, since the individual financial transaction of
Jayanth Prabhu is sought to be ventilated through cheque
issued in favour of 'Jyotshna Diagnostic', the learned Trial
Judge and the learned Judge in the First Appellate Court
misdirected themselves in holding that there was a legally
recoverable debt subsisted between the accused and the
complainant and cheque was drawn in that favour.
16. No doubt, complainant enjoys the presumption under
Section 139 of the Negotiable Instruments Act. Initial burden
however, is to be discharged by the complainant as it is a
rebuttable presumption.
17. In the case on hand, as could be seen from the complaint
averments, for the individual transaction of Jayanth Prabhu,
accused said to have issued a cheque in the name of 'Jyotshna
Diagnostic'. Nothing prevented the complainant to file a
complaint in the name of 'Jyotshna Diagnostic' as it is the
'Jyotshna Diagnostic' which is required to recover the amount
covered under the cheque.
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18. But, material evidence in the form of complaint
averments shows that it is the individual transaction of Jayanth
Prabhu and cheque is issued in the name of 'Jyotshna
Diagnostic'.
19. Be that what it may. Accused is also required to place
rebuttal evidence on record. In the case on hand, accused is
not examined. Therefore, Trial Court, as well as the First
Appellate Court came to the conclusion that accused has
committed the offence punishable under Section 138 of the N.I.
Act.
20. The Hon'ble Apex Court, in the case of Rohitbhai
Jivanlal Patel vs. State of Gujarat and another reported in
AIR 2019 SC 1876, had an occasion to find out what will be
the resultant effect if the accused does not step into witness
box and place the rebuttal evidence.
21. Their Lordships while considering the scope of the
presumption carved out under Section 139 of the N.I.Act, ruled
that, even in the absence of the rebuttal evidence placed on
record by examining the accused, accused can very well argue
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before the Court that the presumption available to the
complainant cannot be resorted to in a given case by the
material placed on record by the complainant.
22. In the case on hand, applying the above principles of law,
since the cheque is in the name of 'Jyotshna Diagnostic' and
not in the individual name of Jayanth Prabhu, especially having
regard to the averments made in paragraph 4 of the complaint
supra, this Court is of the considered opinion that there was no
privy of transaction between Jyotshna Diagnostic and the
accused, and the complainant.
23. Under such circumstances, it cannot be construed that
legally recoverable debt of Jayanth Prabhu was sought to be
repaid by the accused by drawing a cheque in the name of
Jyotshna Diagnostic.
24. Accordingly, all the ingredients required to attract the
offence under Section 138 of the N.I Act stands not established
in the case on hand.
25. Hence, the following:
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ORDER
(i) Revision Petition is allowed.
(ii) The order of conviction and sentence passed by the
Trial Court confirmed by the First Appellate Court is
hereby set-aside.
(iii) Accused is acquitted.
(iv) The amount in deposit, if any, is ordered to be
released in favour of the accused under due
identification.
Sd/-
JUDGE
kcm
