Karnataka High Court
Sathish Kuthyar vs Robert Fernandis on 28 May, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 615 of 2016
C/W CRL.RP No. 616 of 2016
CRL.RP No. 617 of 2016
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.615 OF 2016
C/W CRIMINAL REVISION PETITION No.616 OF 2016
CRIMINAL REVISION PETITION No.617 OF 2016
IN CRL.RP.No.615/2016
BETWEEN:
SATHISH KUTHYAR
S/O. SHANKAR MOOLYA,
AGED ABOUT 38 YEARS,
R/O. KUTHYAR POST AND VILLAGE,
UDUPI TALUK AND DISTRICT-576 101.
...PETITIONER
(BY SRI H JAYANTHA POOJARY, ADVOCATE)
AND:
ROBERT FERNANDIS
S/O. THOMAS B FERNANDIS,
Digitally AGED ABOUT 51 YEARS,
signed by R R/AT FERNS NEST,
MANJUNATHA SUBHASHNAGARA POST,
Location: UDUPI TALUK-576 101.
HIGH COURT
OF ...RESPONDENT
KARNATAKA
(BY SRI B.RAVISHANKAR, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 17.12.2015
MADE IN C.C.NO.1194/2012 PASSED BY THE III ADDL. CIVIL
JUDGE AND JMFC, UDUPI AND THE ORDER DATED 16.03.2016
MADE IN CRL.A.NO.3/2016 PASSED BY THE PRL. S.J., UDUPI
DIST. AT UDUPI CONFIRMING THE ORDER MADE IN ABOVE
C.C.NO.1194/2012 AND TO ACQUIT THE PETITIONER FOR THE
OFFENCE P/U/S 138 OF N.I. ACT.
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CRL.RP No. 615 of 2016
C/W CRL.RP No. 616 of 2016
CRL.RP No. 617 of 2016
IN CRL.RP.No.616/2016
BETWEEN:
SATHISH KUTHYAR
S/O SHANKAR MOOLYA
AGED ABOUT 38 YEARS
R/O KUTHYAR POST AND VILLAGE,
UDUPI TALUK & DISTRICT-576101
...PETITIONER
(BY SRI H.JAYANTHA POOJARY, ADVOCATE)
AND:
ROBERT FERNANDIS
S/O THOMAS B. FERNANDIS
AGED ABOUT 51 YEARS
R/AT FERNS NEST,
SUBHASNAGARA POST,
UDUPI TALUK-576101
...RESPONDENT
(BY SRI B.RAVISHANKAR, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 17.12.2015
MADE IN C.C.NO.1195/2012 PASSED BY THE III ADDL. CIVIL
JUDGE AND JMFC, UDUPI AND THE ORDER DATED 16.03.2016
MADE IN CRL.A.NO.4/2016 PASSED BY THE PRL. S.J., UDUPI
DISTRICT, UDUPI CONFIRMING THE ORDER MADE IN ABOVE
C.C.NO.1195/2012 AND TO ACQUIT THE PETITIONER FOR THE
OFFENCE P/U/S 138 OF N.I.ACT.
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CRL.RP No. 615 of 2016
C/W CRL.RP No. 616 of 2016
CRL.RP No. 617 of 2016
IN CRL.RP No.617/2016
BETWEEN:
SATHISH KUTHYAR
S/O. SHANKAR MOOLYA,
AGED ABOUT 38 YEARS,
R/O. KUTHYAR POST AND VILLAGE,
UDUPI TALUK AND DISTRICT-576 101.
...PETITIONER
(BY SRI H JAYANTHA POOJARY, ADVOCATE)
AND:
ROBERT FERNANDIS
S/O. THOMAS B. FERNANDIS,
AGED ABOUT 51 YEARS,
R/AT FERNS NEST,
SUBHASNAGARA POST,
UDUPI TALUK -576 101.
...RESPONDENT
(BY SRI B.RAVISHANKAR, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 17.12.2015
MADE IN C.C.NO.1196/2012 PASSED BY THE III ADDL. CIVIL
JUDGE AND JMFC, UDUPI AND THE ORDER DATED 16.03.2016
MADE IN CRL.A.NO.5/2016 PASSED BY THE PRL. S.J., UDUPI
DIST. AT UDUPI CONFIRMING THE ORDER MADE IN ABOVE
C.C.NO.1196/2012 AND TO ACQUIT THE PETITIONER FOR THE
OFFENCE P/U/S 138 OF N.I. ACT.
THESE PETITIONS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 615 of 2016
C/W CRL.RP No. 616 of 2016
CRL.RP No. 617 of 2016
ORDER
Heard learned counsel for the revision petitioner and
respondent.
2. These revision petitions are filed challenging the order of
conviction and sentence passed in C.C.Nos.1194/2012,
1195/2012 and 1196/2012 dated 17.12.2015 on the file of the
III Addl. Civil Judge and JMFC, Udupi, confirmed in Crl.A.Nos.3,
4 and 5/2016, respectively, dated 16.03.2016 on the file of the
Prl. Sessions Judge, Udupi.
3. Facts in brief which are utmost necessary for disposal of
the present appeals are as under:
Respondent/complainant filed a complaint under Section
200 Cr.P.C., contending that petitioner/accused being close
acquaintance of the complainant, requested the complainant to
lend a hand loan and ultimately, the complainant went on
lending the hand loan in a sum of Rs.9,11,000/- on different
dates. Towards repayment of the said loan, accused issued
three cheques bearing Nos.776635, 776636 and 776637 dated
05.03.2012, 25.02.2012 and 15.03.2012 respectively, in a sum
of Rs.3,00,000/- each drawn on Canara Bank, Shankarapura
Branch. Cheques, on presentation, returned with an
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endorsement 'funds insufficient' and legal notice was issued.
According to complainant, there was no compliance to the
callings of the notice and therefore, he filed a complaint for the
offence punishable under Section 138 of the Negotiable
Instruments Act.
4. Presence of the accused was secured and plea was
recorded. Accused pleaded not guilty and therefore, trial was
held.
5. In order to prove the case of the complainant,
complainant got examined himself as P.W.1 and one witness as
P.W.2 and placed on record eight documents produced and
marked as Exs.P.1 to 8.
6. As against the evidence placed on record by the
complainant, accused got himself examined as D.W.1. He also
marked the reply notice and postal endorsement thereof as
Exs.D.1 and D.2.
7. On conclusion of recording of evidence, statement of the
accused as contemplated under Section 313 of the Code of
Criminal Procedure was recorded, wherein, accused has denied
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the incriminating circumstances. Later on, learned Trial
Magistrate heard the parties and passed an order of conviction
whereby he has imposed fine of Rs.9,60,000/- out of which
Rs.9,55,000/- was ordered to be paid as compensation to the
complainant and Rs.5,000/- to be appropriated to the State.
8. Being aggrieved by the same, accused preferred appeals
before the District Court in Crl.A.Nos.3, 4 and 5/2016. The
learned Judge in the First Appellate Court, secured the records
and thereafter, by the judgment dated 16th March 2016,
dismissed the appeals filed by the accused and confirmed the
Order of conviction and sentence passed by the Trial
Magistrate.
9. Being further aggrieved by the same, accused is before
this Court in the present Criminal Revision Petition, on the
following grounds:
That the judgment and order passed by the court below are
illegal, arbitrary and consisting of error apparent on the
face of record. The court below has failed to consider that
there is no legally enforceable debt from the petitioner to
the respondent.
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That both the court below have failed to consider that there
is no provision under the Criminal Procedure Code conduct
a common trial and pass a common judgment in respect of
the offence arised in different cause of action. Therefore
order passed by the trial court which is confirmed by the
appellate court in the single order is illegal and beyond its
jurisdiction. On that ground along order passed by the trial
court which is confirmed by the lower appellate court is
liable to be set aside.
Both the court below have failed to consider that even
though the cheques in the question are between the same
party, the cause of action arised is on different dates and
each cause of action is different from each other. Therefore
the alleged three transaction is from different cause of
action and same cannot be tried and pass order as a single
case by common judgment.
That both the courts have failed to consider that the
respondent has failed to prove the capacity to pay a huge
amount of more than Rs.9 lakhs as a hand loan to the
petitioner. During the course of evidence the respondent
has deposed that during 2007 he is having a loan of
Rs.10,00,000/-. When the respondent himself has loan of
Rs.10,00,000/- from the other persons, giving hand loan to
the petitioner that to more than Rs.9,00,000/- is
unbelievable and it clearly proves that the respondent has
misused the three security cheques, which was given by
the petitioner to respondent at the time taking hand loan
as described in his reply notice. This aspect of the matter
was not considered by the both the court below.
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The courts below are erred in appreciating and re
appreciating the documentary evidence produced before
them. Both the courts have convicted the petitioner only
on the basis of assumption of fact not with the support of
any documents. Both the courts have failed to consider
that the date of three cheques are 25.02.2012, 15.03.2012
and 05.03.2012 and date of dishonor of three cheques are
on 29.02.2012, 12.03.2012 and 16.03.2012 and when the
1st cheque was dishonored on 29.02.2012 the question of
issuing another cheques on 15.03.2012 and 05.03.2012
are doesnot arise. It once again proves that case of
petitioner that the respondent has misused the blank
security cheques. Hence from every angle the respondent
has failed to prove his case and hence the order of
conviction is liable to be set aside.
Both the courts have further failed to consider that the
petitioner during his cross examination has deposed that he
is having a knowledge that at the time of giving a huge
amount hand loan some documents has to be created i.e.,
either by agreement or by some other document. In the
present case as per the respondent he has not taken/
entered any piece of documents while giving the alleged
hand loan. This creates a clear doubts about the
transaction as alleged in the complaint. Hence the
respondent has failed to prove that amount mentioned in
cheques were legally enforceable debt. This aspects of the
matter is not considered by the both the court below.
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Both the courts have further failed to consider that during
the course of evidence the respondent has deposed that he
is income tax assessee. But he has not produced any
documents regarding payment of said alleged hand loan in
the income tax returns. Further the evidence of PW 2 can't
be belied since his evidence is not supported by any
documents and that witness is created by the respondent
for this case.
That both the court below have failed to considered that
the due amounts mentioned in the legal notice,
complainant and in the deposition of the PW 1 in his cross
examination and different from each other. Hence there
was no specific version in the case. These aspect of the
matter was not properly taken into consideration by both
the court below."
10. Reiterating the grounds urged in the Revision Petition,
learned counsel for the petitioner Sri H.Jayantha Poojary,
vehemently contended that the Courts below failed to properly
appreciate the material evidence on record and wrongly
convicted the accused and sought to allow the petitions.
11. He also pointed out that accused borrowed only
Rs.1,00,000/- which has been repaid and as security accused
issued three cheques which are being misused by the
complainant and complainant had no lending capacity,
inasmuch as he has admitted in his cross- examination that he
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himself is in debts to the extent of Rs.5,00,000/- to
Rs.10,00,000/- as on the date of cross-examination from the
year 2007 and therefore, hardly there was any scope for the
complainant to lend huge sum of Rs.9,11,000/- as hand loan
and therefore, sought to allow the petitions.
12. Per contra, Sri B.Ravishankar, learned counsel for the
respondent/ complainant supported the impugned judgment
and contended that there is no dispute that cheques have been
issued by the accused and there is no dispute that signatures
found In the cheques are not the signatures of the accused and
as such complainant enjoys the presumption under Section 139
of the Negotiable Instruments Act, and complainant has
discharged the initial burden not only by examining himself and
producing the documents, but also examining P.W.2 as a
witness on behalf of the complainant which has been rightly
appreciated by the learned Trial Judge and the Judge in the
First Appellate Court and sought for dismissal of the Revision
Petition.
13. In view of the rival contentions of the parties, 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 that the signatures found in the
dishonoured cheques are that of accused/revision petitioner.
15. When once accused has issued the cheques and signature
found therein is established by the complainant by placing
necessary evidence on record, automatically presumption as is
contemplated under Section 139 of the Negotiable Instruments
Act would enure to the benefit of the complainant.
16. Further, for lending the loan not only material documents
have been produced by complainant, but also got examined
one witness on behalf of the complainant as P.W.2. Therefore,
initial burden has been duly discharged by the complainant to
enjoy the presumption.
17. In order to rebut the presumption available to the
complainant under Section 139 of the Negotiable Instruments
Act, accused got examined himself as D.W.1. He has marked
the reply notice and the postal acknowledgment thereof in his
examination-in-chief and also contended that he has borrowed
only a sum of Rs.1,00,000/- and repaid the same and
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therefore, sought for dismissal of the complaint. In other
words, the alleged difference of misuse of cheque is not even
whispered by D.W.1 in his examination-in-chief itself.
18. Further, suggestions made to P.Ws.1 and 2 remain
suggestions on record in the absence of proper proof on behalf
of the accused.
19. If at all if the complainant has really misused the three
cheques which were given by the accused at the time of taking
loan of Rs.1,00,000/-, what prevented the accused to file a
criminal complaint or issue legal notice or file a suit seeking
injunction not to present the cheques which have been issued
as security when he borrowed Rs.1,00,000/-, is the question
that remains unanswered.
20. Further, at least, at the time of repayment of
Rs.1,00,000/- as is contended by the accused, he should have
demanded the return of cheques and when complainant failed
to return the cheques, he should not have repaid the sum of
Rs.1,00,000/-.
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21. Under such circumstances, in the absence of any proper
proof with regard to defence that has been taken by the
accused that the cheques have been issued as security and
same has been misused by the complainant cannot be
countenanced in law.
22. When the two Courts have concurrently recorded factual
finding that accused has issued cheques and failed to honour
the same and therefore, offence under Section 138 of the
Negotiable Instruments Act has been established, this Court
that too in the revisional jurisdiction, cannot take a different
opinion other than what has been recorded by the Trial Judge
confirmed by the First Appellate Judge.
23. Accordingly, grounds urged in the revision petition are
hardly sufficient to interfere with the well reasoned order of the
Trial Court confirmed by the First Appellate Court.
24. Hence, Criminal Revision Petitions are dismissed as
merit less.
Sd/-
JUDGE
