Karnataka High Court
S Prasad vs H S Raghavenra Rao on 16 May, 2024
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CRL.RP No. 1220 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 1220 OF 2016
BETWEEN:
S PRASAD
AGED ABOUT 58 YEARS
S/O LATE SRIDHAR RAO
NO.394, "SRIDHARA KRUPA",
OPP: MAHAVEERA VIDYA MANDIRA
2ND STAGE, LIC COLONY
SRIRAMPURA, MYSURU - 570 023.
MYSORE - 570 001.
...PETITIONER
(BY SRI. KRISHNAMURTHY G HASYAGAR, ADVOCATE)
AND:
H S RAGHAVENDRA RAO
AGED ABOUT 58 YEARS
S/O LATE H G SUDHINDRA RAO
NO.1938, 5TH CROSS, SUBHASH NAGAR
MANDYA CITY - 571 401.
...RESPONDENT
(BY SRI. G M ANANDA, ADVOCATE)
THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
02.09.2016 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, MANDYA IN CRL.A.NO.15/2016,
CONFIRMING THE JUDGMENT OF CONVICTION DATED
29.01.2016 PASSED BY THE JUDICIAL MAGISTRATE FIRST
CLASS, MANDYA IN C.C.NO.434/2007 AND ETC.,
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 22.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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CRL.RP No. 1220 of 2016
ORDER
1. This Criminal Revision Petition is filed by the petitioner,
being aggrieved by the judgment of conviction and order
of sentence dated 29.01.2016 in C.C.No.434/2007 on the
file of the Judicial Magistrate First Class at Mandya and its
confirmation judgment and order dated 02.09.2016 in
Crl.A.No.15/2016 on the file of the V Additional District
and Sessions Judge at Mandya, 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 Negotiable
Instrument Act, 1881 (for short 'N.I Act').
2. The ranks of the parties henceforth will be referred as per
their rankings in the Trial Court for convenience.
Brief facts of the case:
3. It is the case of the complainant that he and the accused
were good friends and they were known to each other
since their childhood. On 20.02.2006, the accused
approached the complainant and borrowed hand loan of
Rs.1,00,000/- to clear his loan. Since the accused was
a good friend of the complainant, he adjusted a sum of
Rs.90,000/- and paid to the accused on 28.02.2006.
4. It is further stated that, the accused assured that he
would repay the amount as early as possible. However,
the accused has failed to repay the said loan which he
had borrowed from the complainant. When the
complainant demanded the accused to repay the said
amount, the accused issued a cheque for a sum of
Rs.90,000/- and instructed the complainant to present
the same for encashment. Accordingly, the complainant
had intention to present the said cheque on 09.05.2006.
However, the accused had requested the complainant to
present it after 15 days. On the instruction of the
accused, the complainant presented the cheque on
23.05.2006. However, the said cheque came to be
dishonoured with a shara as 'Account closed'. The
complainant had brought to the notice of the accused
through legal notice dated 23.06.2006. The accused did
not receive the notice sent through RPAD. Therefore, it
was returned to the complainant on 04.07.2006.
However, the notice issued through under Certificate of
Posting has been served to the accused. According to the
complainant, in spite of notice having been served to the
accused, the accused has neither replied to the notice nor
repaid the amount. 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 8 documents
as Exs.P1 to P8. On the other hand, accused examined
himself as DW.1 and got marked 2 documents as Exs.D1
and D2. The Trial Court after appreciating the oral and
documentary evidence on record, recorded the conviction
and sentenced the accused to pay a fine of Rs.95,000/-,
in default of payment of fine, further directed to undergo
simple imprisonment for a period of six months. Being
aggrieved by the same, the petitioner herein had
preferred an appeal before the Appellate Court. The
Appellate Court dismissed the appeal. Hence this
revision.
6. Heard Sri.Krishnamurthy G.Hasyagar, learned counsel for
petitioner and Sri.G.M.Ananda, learned counsel for
respondent.
7. It is the submission of the learned counsel for petitioner
that the judgment of conviction and its confirmation order
passed by the Courts below are contrary to the evidence
on record and therefore, the concurrent findings are
required to be set aside.
8. It is further submitted that even though there is a
material alteration on the cheque, that has not been
considered by the Courts below while appreciating the
documents on record which is contrary not only to the
settled principles of law, but also, against the law of
Negotiable Instruments Act. Therefore, the said findings
are required to be set aside.
9. It is further submitted that the Trial Court and the
Appellate Court have failed to take note of the document
which is marked as Ex.D1, wherein it is clearly stated that
the cheque in question was issued to the Managing
Partner of Madhura Finance Corporation for having
borrowed loan of Rs.10,000/- as security. If the said
aspect had been considered, the impugned judgment
would not have been passed as the complainant failed to
prove the debt or liability.
10. It is further submitted that the complaint ought to have
been rejected on the ground of delay in lodging the
complaint. However, the Courts below have ignored in
considering those aspects stated supra and recorded the
conviction which is required to be set aside. Making such
submission, the learned counsel for the petitioner prays
to allow the petition and further to substantiate his
arguments, he relied on the following judgments:
1. Capital Syndicate Vs Jameela1
2. Jayatilal Goel Vs Zubeda Khanum2
3. Mohd. Sami Ansari Vs State of Chhattisgarh & Ors3
4. Channappa Vs LRs of Thimmaiah in CRL.RP
No.1888/2006 (D.D : 23-5-2012)
5. A.M.Govindegowda Vs. B.V.Ravi4
6. Veerayya Vs. G.K.Madivalar5
7. BPDL Investments (Pvt.) Ltd. Vs. Maple Leaf
Trading International (Pvt.) Ltd.6
8. K.M.Basappa and another Vs. Patel Marule Gowda
and another7
11. Per contra, the learned counsel for respondent submits
that the concurrent findings recorded by the Courts below
are appropriate and the evidence of DW.1 clearly
(2003) 44 SCL 220 Ker
AIR 1986 AP 120
AIR 2011 (NOC) 421 (CHH.)
2016 (1) AKR 211
2012 (3) KCCR 2057
III (2006) BC 482
AIR 1951 Mysore 102
discloses that the petitioner herein had availed loan of
Rs.90,000/- and issued a cheque for the said amount.
However, the petitioner contended that he had borrowed
only Rs.10,000/- and issued a cheque as security which
has been denied and negatived by the Courts below. This
Court being a Revisional Court is not empowered to
appreciate the evidence but if any error or perversity is
seen, that can be considered and appropriate order may
be passed in that regard. Since there is no perversity or
illegality in the findings, it is not necessary to interfere
with the said findings.
12. It is further submitted that once the accused had issued a
signed blank cheque and admitted the same, as per the
settled principle, the drawee of the cheque can fill up the
cheque for valuable consideration and present it for
encashment. In other words, once authorization is given
to the drawee to fill up the cheque under the statute, the
question of material alteration would not arise.
Therefore, the contention of the petitioner relating to the
material alteration would not survive for consideration.
Making such submission, the learned counsel for
respondent prays to dismiss the petition.
13. Having heard the learned counsel for the respective
parties and also perused the findings of the Courts below
in recording the conviction, it is appropriate to refer the
evidence of both PW.1 and DW.1 and also relevant to
take note of the documents for the purpose of
ascertaining as to whether any error committed by the
Courts below in recording the conviction.
14. It is settled principle of law that the drawee of the cheque
is protected under the presumption which is provided
under Section 139 of the Negotiable Instruments Act.
Once the execution of the cheque is proved, the
presumption has to be raised in favour of the drawee of
the cheque. The drawer of the cheque has to raise a
probable defence and rebut the said presumption by
leading cogent evidence that the said cheque has been
issued other than the debt or liability. In other words,
the accused has to lead his evidence to rebut the
presumption.
15. In the present case, as per Ex.P8, the accused being a
drawer of the cheque replied to the notice by denying the
transaction and submitted that in the year 1996, he had
left Mandya and closed the transaction of the Karnataka
Bank, Mandya Branch.
16. Further, in the cross-examination of P.W.1, it is elicited
that P.W.1 was the Managing Partner of Madhura Finance
Corporation. Further, it is elicited that another Managing
Partner S.Murthy was known to P.W.1. Ex.D1 has been
issued by the Madhura Finance Corporation signed by
S.Murthy. The contents of Ex.D1 discloses that the
accused issued the cheque which is in dispute to the
finance company for having obtained the loan of
Rs.10,000/-, as security.
17. In such a way, the accused has rebutted the presumption
that the cheque had been issued other than the debt or
the liability. Once the accused rebutted the presumption,
the burden lies on the complainant to prove that he had
advanced the amount to the accused and obtained the
cheque to clear the loan.
18. As per the evidence of P.W.1, he lent a sum of
Rs.90,000/- to the accused in the year 2003-2004 when
the accused was constructing the house at Mysuru.
Further, in the cross-examination, he admitted that he
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was paying sales tax and also the income tax. However,
he clarified that he had been paying sales tax and he was
filing the returns. When a specific question was put to
him as to whether the loan transaction has been
mentioned in the said returns, he admitted that the said
loan transaction did not find a place in the said returns.
19. On careful reading of Ex.D1, it appears that the cheque of
the accused had been issued to the Madhura Finance
while availing the loan of Rs.10,000/-, as a security.
Having considering the said document, I am of the
considered opinion that the accused has rebutted the
presumption, however, after rebutting the said
presumption, when the burden shifted on the
complainant, he failed to prove the liability. Therefore,
the findings of the Courts below are erroneous and not
proper. Hence, the findings are required to be set aside.
20. In the light of the observation made above, I proceed to
pass the following :
ORDER
(i) The Criminal Revision Petition is allowed.
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(ii) The judgment of conviction and order of
sentence dated 29.01.2016 passed in
C.C.No.434/2007 by the Judicial Magistrate
First Class at Mandya and the judgment and
order dated 02.09.2016 passed in
Crl.A.No.15/2016 by the V Additional
District and Sessions Judge at Mandya are
set aside.
(iii) The petitioner is acquitted for the offence
under Section 138 of Negotiable
Instruments Act.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE
UN
