Karnataka High Court
T M Narayanaswamy vs V Ramappa on 28 May, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 418 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.418 OF 2015
BETWEEN:
T M NARAYANASWAMY
S/O LATE MUNIVENKATAPPA
AGED ABOUT 52 YEARS
R/AT 1ST CROSS, ANJANI EXTENSION,
CHINTAMANI TOWN-563125
CHIKKABALLAPURA DISTRICT
...PETITIONER
(BY SRI T M VENKATA REDDY, ADVOCATE)
AND:
V RAMAPPA
S/O LATE VENKATAPPA
AGED ABOUT 77 YEARS
R/AT NO.1638, 1ST MAIN, 2ND CROSS,
ANJANI EXTENSION,
CHINTAMANI TOWN-563125
Digitally CHIKKABALLAPURA DISTRICT
signed by R ...RESPONDENT
MANJUNATHA
Location:
(RESPONDENT -SERVED)
HIGH COURT
OF
KARNATAKA
THIS CRL.RP IS FILED UNDER SECTION 397 CR.P.C
PRAYING TO SET ASIDE THE ORDERS DATED 01.02.2014 IN
C.C.No.97/2008 PASSED BY THE PRL. CIVIL JUDGE AND JMFC,
CHINTAMANI AND THE ORDER DATED 09.12.2014 IN
CRL.A.No.35/2012 PASSED BY THE PRL. DISTRICT AND
SESSIONS JUDGE, CHIKKABALLAPURA AND CONSEQUENTLY
DISMISSED THE COMPLAINT FILED BY THE
COMPLAINANT/RESPONDENT.
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CRL.RP No. 418 of 2015
THIS CRL.RP, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard Sri T.M. Venkatareddy, learned counsel for the
revision petitioner.
2. Present revision petition is filed challenging the order of
conviction and sentence dated 01.02.2012 passed by the
learned Principal Civil Judge and JMFC., Chintamani in
C.C.No.97/2008, confirmed in Crl.A.No.35/2012 dated
9.12.2014, passed by the learned District and Sessions Judge,
Chikkaballapura.
3. Facts in brief which are utmost necessary for disposal of
the revision petition are as under:
A private complaint came to be filed under Section 200
Cr.P.C., by the respondent contending that on 16.07.2007
accused approached the complainant with a request for hand
loan in a sum of Rs.65,000/- to be repaid by the accused within
a short time. Complainant lent sum of Rs.65,000/- and
towards repayment of the said amount, accused issued two
cheques dated 20.07.2007 and 27.07.2007 in a sum of
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Rs.40,000/- and 25000/- respectively, drawn on SBM,
Chintamani Branch and Canara Bank, Chitamani Branch.
4. The cheques on presentation came to be dishonored with
an endorsement 'Funds Insufficient' and thereafter legal notice
was issued as is contemplated under the provisions of
Negotiable Instruments Act which was duly served on the
accused and he failed to comply the callings of the notice nor
replied the same. Therefore, the complainant has sought for
action against the accused for the offence under Section 138
Negotiable Instruments Act.
5. Upon service of issuance of the summons, accused
appeared before the Court and plea was recorded. Accused
pleaded not guilty and therefore trial was held.
6. In order to prove the case of the complainant,
complainant got examined himself as P.W.1 and bank manager
as P.W.2 and cumulatively placed on record thirteen documents
which were exhibited and marked as Exs.P.1 to P.13,
comprising of dishonored cheques, bank endorsement issued by
SBM, Chintamani Branch, copy of the endorsement issued by
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the Canara Bank, Chintamani Branch, legal notice, postal
receipts, certificate of posting, postal acknowledgement,
account extracts and the summons.
7. As against evidence placed on record by the complainant,
accused got examined himself as D.W.1, but he did not choose
to place any documentary evidence on record.
8. On conclusion of the recording of the evidence of the
parties, learned Trial Magistrate recorded the statement of the
accused under Section 313 of Cr.P.C., wherein the accused has
denied all the incriminating circumstances that were put to him.
Thereafter learned Trial Magistrate heard the parties and by
order dated 01.02.2012 convicted the accused for the offence
under Section 138 of Negotiable Instruments Act and imposed
the fine amount of Rs.75,000/- which is paid as compensation
to the complainant.
9. Being aggrieved by the same, accused filed an appeal
before the District court in Crl.A.No.35/2012. Learned Trial
Judge of the First Appellant Court after securing the records
and hearing the parties, by judgment dated 09.12.2014,
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dismissed the appeal of the accused and confirmed the order of
conviction and sentence passed by the learned Trial Magistrate.
10. Being aggrieved by the same, the accused is before this
Court in this revision petition on the following grounds:
Both the orders dated: 01/02/2012 in CC No.97/2008
passed by the Principal Civil Judge and JMFC Chintamani
and the order dated 09/12/2014 in Criminal Appeal
No.35/2012 passed by the Principal District and Sessions
judge Chikkaballapura is not the speaking orders. Which
are capricious, frivolous and passed against the principles
of natural justices and beyond the scope of law. Hence
the orders to be quashed by allowing the Petition.
Both the Trial Courts did not consider the evidences,
documents and arguments canvassed while passing the
orders. The Courts below has passed only on the
presumsion that the Accused has put his signatures on
the cheques in question, though the said signature is an
impersonation signature of the Accused.
The Complainant did not prove his evidence that he owns
the money or got through the friends and relatives and
same as been lend by way of hand loan to the Accused.
Hence the question of lending the money by the Accused
nor issuing the cheques in favour of the Respondent does
not arise. For which the Respondent did not adduced any
of the evidence and prove the same to lend the money
and to discharge his legally recoverable debt.
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The appreciation of Lower Courts only on the basis of
posses the impersonation cheques, issuance of notice,
service of notice, dishonour of the cheques would not
established legally recoverable debt. Hence the finding
complies under Section 138(c) of N.I. Act and presumsion
under Section 118 and 138 of N.I Act coming into
operation is totally erroneous and prejudice.
The Lower Courts has wrongly shifted the burden to the
Accused. Even during the course of cross examination of
Pw1, he admits that he has not obtained any prior
permission from the authorities to lend alleged money in
favour of Petitioner. Since the Lower Courts has ignored
the real facts throughout.
The Lower Courts has failed to note that the Hon'ble
Supreme Court in a decision reported in AIR 2007 SC
6736 observed in Para 29 as hereunder:
"Why no instrument was executed although a huge
sum of money was allegedly paid to the Respondent
was a relevant question, which could be posed in
the matter. It was open to the High Court to draw
its own conclusion therein. Not only had no
document been executed even no interest had been
charged". Thus the circumstances of not charging
any interest was also considered as the relevant
circumstances to find out as to whether the
existence of the debt has been proved or not. In the
case on hand also not only no document has been
executed even no interest has been charged. That
there is no explanation is forth coming by the
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Complainant/Pw1 as to why the interest was not
charged on Rs.65,000/- alleged to have been lend
by him that too a stranger like Accused."
The Pw1 has not been proved any evidence regarding
possession of the money and consequently to lend the
money by way of loan to the Petitioner. Even no evidence
regarding written the cheque along with the signature and
also no evidence regarding borrowing the money or
keeping the money his account nor saving the money.
The said money has not been proved by filing any Income
Tax Returns.
The Complainant has suppressed the true and has not
approached the Court with clean hands. He also admits
that he do not know the date of the payment of alleged
amount during the course of cross examination. The
Complainant is not the earner and has no work.
The Pw1 has failed to prove that the Petitioners has
acknowledge the receipt of the amount, when substantial
amount of Rs.65,000/- was lent, it reasonable to expect
that the creditor would insist on debtor to execute some
documents evidencing the transaction. Therefore it
creates doubt about the genuineness of the transaction.
The Lower Court has erred in passing the orders to
undergo six months sentence to the Accused. It is also
erred in awarding the compensation of Rs.75,000/- to the
Respondent/Complainant as the same is harsh, arbitrary,
illegal and against to the principals of natural justice.
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The Lower Court has failed to note that there was no any
material to convict the Accused."
11. Learned counsel for the revision petitioner Sri T.M.
Venkatareddy reiterating the grounds urged in the revision
petition vehemently contended that the Courts below did not
properly appreciated the material evidence on record and
wrongly convicted the accused and sought for allowing the
revision petition.
12. He further argued that the Court below failed to note that
the complainant did not have the capacity to lend hand loan in
a sum of Rs.65,000/- and the misplaced cheques have been
misused by the complainant and the said aspect of the matter
is not properly taken into consideration by the learned Trial
Court as well as the First Appellate Court and sought for
allowing the revision petition.
13. In the absence of any contra arguments and in view of
the absence of the counsel for respondent, this Court perused
the material on record meticulously.
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14. On such perusal of the material on record, it is crystal
clear that there is no dispute as to the signatures found in
Exs.P.1 and P.2.
15. P.W.2 being the bank manager has spoken to the said
aspect of the matter. Further, the cheques are not dishonored
on the ground that the signatures on the cheques did not tally.
But, they have been dishonored on the ground 'Insufficient
Funds'.
16. Further, it is the case of the accused that the cheques
were misplaced and the same have been misused by the
complainant.
17. In order to establish the said aspect of the matter,
accused got examined himself as D.W.1 and deposed to the
fact that the cheques have been misused.
18. It is pertinent to note that the cheques have not been
dishonored on the ground that the signatures found in the
disputed cheques did not tally, but on the ground that 'Funds
Insufficient'. Further, no positive action has been taken by the
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accused with regard to the alleged misuse of cheques in
question.
19. Under the circumstances, presumption available to the
complainant under Section 139 of Negotiable Instruments Act
does not get rebutted.
20. The learned Trial Magistrate has rightly appreciated the
said aspect of the matter and convicted the accused for the
offence punishable under Section 138 of Negotiable
Instruments Act.
21. Learned District Judge of the First Appellate Court even
after reconsidering the material evidence on record, in view of
the grounds urged in the appeal memorandum, has clearly held
that the learned Trial Judge was justified in recording an order
of conviction and imposing the fine of Rs.75,000/- having
regard to the cheques amount being Rs.65,000/-.
22. In the absence of any positive evidence placed on record
by the accused about the alleged misuse of the cheques
marked at Exs.P.1 and P.2, this Court is of the considered
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opinion that the grounds urged in the revision petition are
hardly sufficient to interfere with the well reasoning order of
the learned Trial Magistrate and learned First Appellate Court.
Accordingly, following order is passed:
ORDER
Revision petition is meritless and hereby dismissed.
Sd/-
JUDGE
MR
