Karnataka High Court
Sri Shivanna vs Sri B S Ashok Kumar on 25 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1515/2019
BETWEEN:
1. SRI. SHIVANNA
S/O SRI EREGOWDA
AGED ABOUT 53 YEARS
R/AT NO.52,
SUNDREGOWDA LAYOUT
RAJARAJESHWARINAGAR POST
CHANNASANDRA
BENGALURU-560 078. ... PETITIONER
(BY SRI A.N.RADHA KRISHNA, ADVOCATE)
AND:
1. SRI B.S.ASHOK KUMAR
S/O LATE N.S. SUBBARAYA SETTY
AGEDA BOUT 71 YEARS
R/AT NO.678, "KUSUM DHAM"
15TH MAIN, 38TH CROSS
IV 'T' BLOCK, JAYANAGAR
BANGALORE-560 041. ... RESPONDENT
(BY SRI K.R.ASHOK KUMAR, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED 397 R/W
401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE PASSED BY THE LEARNED XVI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU
IN C.C.NO.35498/2014 DATED 02.04.2019, CONVICTING THE
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PETITIONER AND CONFIRMED ORDER DATED 23.09.2019 IN
CRL.A.NO.1009/2019 ON THE FILE OF THE LEARNED LVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH-67) FOR THE OFFENCE PUNISHABLE UNDER SECTION 138
OF NEGOTIABLE INSTRUMENTS ACT.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 15.01.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
1. Heard the learned counsel for revision petitioner
and also the learned counsel for respondent.
2. This revision petition is filed challenging the
conviction and sentence and confirmation order passed by
the Trial Court in C.C.No.35498/2014 and
Crl.A.No.1009/2019 questioning its validity of the order.
3. The factual matrix of case of the complainant
before the Trial Court that the accused has borrowed an
amount of Rs.10,00,000/- from the complainant by way of
cash for sum of Rs.5,00,000/- and by way of Cheque dated
23.07.2012 for sum of Rs.5,00,000/- and executed on
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demand promissory note and the consideration receipt
dated 20.07.2012 in favour of the complainant agreeing to
repay the same with interest at 2% p.m for his real estate
business and also to discharge certain debts. It is the case
of the complainant that when the Cheque dated 21.11.2013
for an amount of Rs.10,00,000/- issued to repay the
amount and the same was presented, the said Cheque was
dishonored and hence issued the legal notice to the
accused. Inspite of service of notice, the accused neither
replied nor complied with the demand and hence he filed
the complaint.
4. The Trial Court having considered the material
on record taken cognizance and proceeded to record the
evidence of the complaint. The complainant himself
examined as PW1 and got marked Ex.P1 to Ex.P16(a) and
also examined one witness as PW2. The accused got
examined himself as DW1 and got marked Ex.D1 to Ex.D3.
The Trial Court having considered the material on record
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and having admitted the Cheque, on demand promissory
note and consideration receipt and also evidence of PW1
i.e., both oral and documentary evidence placed on record
as well as evidence of DW1 and documentary evidence at
Ex.D1 to Ex.D3 and analyzed the material and drawn the
presumption and comes to the conclusion that there is no
any rebuttal evidence proving the fact of preponderance
probability of the defense which the accused has taken and
accepted the case of the complainant and convicted the
accused for the offence punishable under Section 138 of N.I
Act and sentenced to pay fine of Rs.14,72,500/- and out of
that Rs.10,000/- to the State and in default of payment, the
accused shall undergo simple imprisonment for 1 year.
5. Being aggrieved by the judgment of conviction
and sentence, an appeal is filed in Crl.A.No.1009/2019 and
judgment of the Trial Court and also the sentence awarded
by the Trial Court was also confirmed in coming to the
conclusion that the Trial Court has not committed any error
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in considering the material on record and affirmed the
finding of the Trial Court and sentence and dismissed the
appeal. Being aggrieved by the said judgment of conviction
and sentence and confirmation, the present revision petition
is filed before this Court.
6. The learned counsel for revision petitioner in his
argument would vehemently contend that in the complaint,
the complainant not stated the purpose for which the
accused has availed the loan for an amount of
Rs.10,00,000/- except stating to repay the same with
interest at 2% p.m and only improvement is made in the
evidence that the same was borrowed for the purpose of
business commitment. The counsel would contend that for
having paid the income tax, no document is placed before
the Trial Court. The counsel also would vehemently contend
that Ex.P1 and Ex.P4 are in the handwriting of PW2 and the
revision petitioner was having an agreement of sale and
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subsequently sale deed was executed in favour of daughter
of the complainant.
7. The counsel would vehemently contend that the
Cheque which was issued is towards the commission for
transaction is concerned and consideration receipt dated
20.07.2012. The counsel would vehemently contend that
affidavit averment and complaint averments are different.
The counsel also would vehemently contend that date of
transaction is also contrary to the document and Cheque
was honored on 23.07.2012 and Cheque is subsequent
dated and not as on the date of 20.07.2012. The answer
elicited from the mouth of the PW1 and PW2 creates the
doubt with regard to the transaction is concerned and the
same has not been considered by the Trial Court as well as
First Appellate Court and committed an error in drawing of
presumption only on the ground that the Cheque and
promissory note and consideration receipts are admitted
and fails to take note of the rebuttal evidence. The accused
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by examining himself lead the evidence and proved that it
was not any liability and amount of Rs.5,00,000/- was paid
towards commission as contended by the revision
petitioner.
8. The counsel in support of his argument, relied
upon the judgment reported in (2024) 8 Supreme Court
Cases 573 in case of Dattatraya V/s Sharanappa
wherein the counsel brought to notice of this Court that a
discussion was made that there found no financial capacity
or acknowledgment in his income tax returns by the
appellant to the effect of having advanced the loan to their
respondent. Even, appellant also fail to show timing and
date of advanced loan in favour of the respondent and also
did not explain as to how a Cheque issued by the
respondent allegedly in favour of one M landed in the hands
of instant holder, that is, the appellant. The Apex Court also
considered the factual aspects mere fact that appellant
established that the signature on the Cheque in question
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was of the respondent, held, not material to raise statutory
presumption in favour of the appellant and even the
appellant did not plead a valid existence of a legally
recoverable debt and respondent inscribed his signature on
the agreement drawn on a white paper and not on a stamp
paper as presented by the appellant. The Apex Court having
taken note of the said fact comes to the conclusion that
created doubt in the case of the appellant and in the case
on hand having considered the material available on record,
it creates the doubt and hence, the judgment is aptly
applicable to the case on hand.
9. Per Contra, the counsel appearing for the
respondent would contend that date of loan is 23.07.2012.
The fact that the Cheque was given was encashed on that
date and transaction was taken place on 20.07.2012 and
promissory note and consideration receipt was executed on
20.07.2012 in respect of loan transaction. The counsel also
would vehemently contend that even though consideration
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receipt and promissory note was executed a Cheque was
issued on demand dated 21.11.2013 and the same was
presented and dishonored and hence, notice was given. The
notice was served, but no reply was given and even not
complied with the demand made in the notice. The counsel
also would vehemently contend that though he was
subjected to 313 statement, but not availed the defense in
order to prove the defense for an amount of Rs.5,00,000/-
was paid towards the commission, the same is propounded
first time only during the course of cross-examination and
no explanation in Ex.D1 to Ex.D3 that an amount of
Rs.5,00,000/- was paid towards the commission.
10. The counsel also would vehemently contend that
no dispute that earlier there was an agreement between the
vendor and the accused and the same was cancelled in
terms of Ex.D2 and there was no any reference in the said
document also regarding transaction is concerned. The
counsel also would vehemently contend that when the loan
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transaction was taken place in the month of July,
cancellation and execution of sale deed in favour of the
daughter of the complainant only on 22.08.2012, the PW2
is an eye witness and also he has deposed before the Court
that he had seen the accused and documents of Cheque
and Ex.P14 are in his hand writing since he wrote the same
when the transaction was taken place.
11. It is also important to note that Cheque was
encashed on 23.07.2012 and promissory note was also
executed on 20.07.2012 in consideration of receipt of
Rs.5,00,000/- as cash and Rs.5,00,000/- through Cheque.
In the 313 statement nothing is stated regarding the said
payment is towards the commission. The Trial Court rightly
taken note of presumption under Section 118 and Section
139 of N.I Act. The counsel would vehemently contend that
no preponderance of probability and Ex.D1 to Ex.D3 will not
help and no witnesses are examined to support the
defense. The counsel also would vehemently contend that
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the owner of the land i.e., Kumuda who is a party to the
sale agreement of Ex.D3 and to prove the cancellation and
sale deed, not been examined any witness before the Trial
Court in order to prove the factum that it was only a
payment towards the commission. No reply was given and
the same is fatal to the case of the petitioner and there is
no any rebuttal evidence and also there is no any
preponderance of probability.
12. The counsel in support of his argument, he relied
upon the judgment of Apex Court in the case of Bir Singh
V/s Mukesh Kumar in Crl.A.No.230/2019 and brought
to notice of this Court paragraph No.37 wherein the Apex
Court held that a meaningful reading of the provision of the
Negotiable Instruments Act including, in particular, Sections
20, 87 and 139, makes it amply clear that a person who
signs a Cheque and makes it over to the payee remains
liable unless he adduces evidence to rebut the presumption
that the Cheque had been issued for payment of a debt or
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in discharge of a liability. It is immaterial that the Cheque
may have been filled in by any person other than the
drawer, if the Cheque is duly signed by the drawer. If the
Cheque is otherwise valid, the penal provisions of Section
138 would be attracted.
13. The counsel also relied upon the judgment of the
Apex Court in case of Rajesh Jain V/s Ajay Singh in
case of reported in AIR 2023 SUPREME COURT 5018
and brought to notice of this Court the principles laid down
in the that accused neither replied demand notice nor
presented any rebuttal evidence instead, accused claims
that blank Cheque had been misused by complainant. The
accused however fail to provide any substantial evidence or
file a Police complaint regarding alleged missing Cheque. In
contrast, case of complainant remained consistent and
signature of accused and Cheque was unchallenged,
allowing presumption as to legally enforceable debt to take
effect, High Courts erroneously questioned complainant's
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lack of evidence to support loan claim instead of focusing
on whether accused had successfully discharged his burden
to show absence of any debt at time of issuing Cheque. The
Apex Court set-aside the acquittal order and reversed the
same.
14. The counsel referring these two judgments
would vehemently contend that issuance of Cheque is not
disputed and issuance of promissory note and consideration
receipt are also not in dispute and though examined himself
as DW1 not placed any material for misuse the Cheque and
also no rebuttal evidence is placed on record. The counsel
also brought to notice of this Court 313 statement of the
accused wherein also though he has taken the defense,
nothing is stated regarding his defense and hence question
of interference does not arise.
15. Having heard the learned counsel for revision
petitioner and also the learned counsel for the respondent
and also the judgments referred supra by the counsel for
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revision petitioner and also the counsel appearing for
respondent, the point that would arise for consideration of
this Court are:
1) Whether both the Courts have committed
an error in considering the material and
whether it requires interference of this
Court that is revisional jurisdiction?
2) What Order?
16. Having heard the learned counsel for revision
petitioner and also the learned counsel for the respondent
and this Court has to take note of the averments made in
the complainant filed under Section 200 invoking Section
138 of N.I Act and in paragraph No.3 of the complaint,
specifically pleaded that accused borrowed a sum of
Rs.10,00,000/- i.e., Rs.5,00,000/- cash and Rs.5,00,000/-
by way of Cheque drawn on HDFC bank, Jayanagara and
accused also executed on demand promissory note and
consideration receipt dated 20.07.2012 agreeing to pay
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interest at 2% p.m and the same is for the purpose of real
estate business and also to discharge certain debts. Having
considered the said pleading in paragraph No.3, the very
contention of the petitioner that amount borrowed for which
purpose is not stated cannot be accepted and specifically
pleaded in the complaint regarding presentation of Cheque,
dishonor and issuance of notice in paragraph Nos.4 and 5
and cause of action also pleaded in paragraph No.7.
Admittedly, the notice was issued and the same was served
on the accused and no reply was given.
17. It is also important to note that the main
contention of the revision petitioner that Ex.D1 to Ex.D3
has not been considered. No doubt Ex.D1 is sale deed
executed by one Smt.Kumuda who is the vendor of the
property, executed the sale deed on 22.08.2012 in favour
of daughter of complainant i.e., Miss.A.Keerthana. It is also
important to note that Ex.D2 the cancellation of sale
agreement when there was an existence between the
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Smt.S.Kumuda and this petitioner and the same is also
dated 22.08.2012, on the same day earlier agreement was
cancelled and sale deed was executed in favour of daughter
of complainant and Ex.D3 is also executed by Kumuda in
favour of Shivanna i.e., sale agreement dated 20.06.2012.
It is important to note that there was an agreement
between Kumuda and petitioner on 20.06.2012 and it has
to be noted that the loan transaction taken place in
between and having perused the document of Ex.P14, it is
clear that the revision petitioner had executed a document
of promissory note and the same is dated 20.07.2012. On
perusal of the document, the very averment in the
document is very clear that an amount of Rs.5,00,000/-
was paid and another sum of Rs.5,00,000/- was paid
through Cheque and the same is not disputed and also
executed a consideration receipt to that effect. It is also
important to note that Cheque was also given and no
dispute that the Cheque was given at the time of
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transaction was encashed on 23.07.2012 within 3 days of
execution of document Ex.P14.
18. It is also important to note that the complainant
also examined as PW2 who is none other than the author of
document of Ex.P14. He also categorically says that he only
wrote Ex.P14 and he identified the signature Ex.P14(e) and
P14(f) i.e., signature in the promissory note and
consideration receipt and transaction was taken place in the
house of the complainant in his presence. It is also
suggested in the cross-examination that the contents are in
his hand writing and the same is also admitted by him and
petitioner also not disputed the same. It is also important
to note that it is not in dispute that Ex.P1 was issued by the
revision petitioner and also the document of Ex.P14
promissory note and consideration receipt are also signed
by him and also the fact that he received an amount of
Rs.5,00,000/- in terms of the Cheque on 23.07.2012 is not
in dispute, when such admission available on record, then
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presumption could be drawn under Section 139 of N.I Act
and the judgment of the Bir Singh and judgment of
Rajesh Jain aptly applicable to the case on hand. It is the
case of the petitioner that Cheque was misused but no
complaint was given and also when the notice was issued
and the same was served and he did not give any reply.
The same is a fatal to the case of revision petitioner and he
ought to have given the reply immediately after issuance of
notice and service of notice and there is no any plausible
explanation on the part of the petitioner and the same has
been considered by the Trial Court that no reply was given
and no plausible defense is raised. Apart from that except
taking the defense that amount of Rs.5,00,000/- was paid
towards commission nothing is placed on record and no
witnesses have been examined and also even the earlier
vendor of the revision petitioner and also the vendor of
complainant's daughter Smt.Kumuda has been examined
before the Trial Court that for having sold the property in
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favour of daughter of the complainant there was a talks
between them to pay the commission and no such evidence
is placed on record and there is no any preponderance of
probability with regard to the defense taken by the
petitioner during the course of the evidence, except taking
the defense that the said amount was paid and no
explanation for what made the revision petitioner to
execute the promissory note on 27.07.2012 to the tune of
Rs.10,00,000/-.
19. It is also important to note that the said Cheque
which was mentioned in the promissory note also encashed
on 23.07.2012 within 3 days. Apart from that as on the
date of loan transaction, there was no any completed
transaction of the sale in favour of the daughter of the
complainant and also vendor Smt.Kumuda and question of
payment of commission one month earlier to the sale also
cannot be accepted, since the loan transaction dated
20.07.2012 and sale deed and cancellation of sale
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agreement dated 22.08.2012 and as on the date of loan
transaction 20.07.2012 there was no any cancellation of
sale agreement and also there was no any execution of sale
deed and hence theory of commission was given by way of
Cheque that too one month prior to the sale transaction
cannot be accepted and the same is also not a plausible
evidence and no reply and if they have given the reply
immediately when the notice was served and set up the
defense, ought to have been considered and there was a
force in the contention of the petitioner.
20. It is also important to note that though defense
was taken by the counsel that amount was paid towards the
commission and accused in his 313 statement not stated
anything and also that he has received the Cheque of
Rs.5,00,000/- towards the commission and having taken
note of the said fact into consideration and no doubt the
counsel appearing for the revision petitioner relied upon the
judgment of the Apex Court Dattatraya case, but the same
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is not fit into the factual aspects of the case and loan
transaction specifically mentioned the time and date of
transaction and also in the complaint specifically pleaded
that amount was given to meet the real estate
commitments of the accused and not the case of mere
admission on the signature in the Cheque, but here is a
case of signature on the Cheque as well as execution of
promissory note and consideration receipt and all have
been admitted and when such being the case, the Trial
Court and First Appellate Court rightly appreciated the
material on record that there is a valid existence of legally
recoverable debt and drawn the presumption under Section
139 of N.I Act. Hence, I do not find any error committed by
the Trial Court in convicting and sentencing the accused for
the offence punishable under Section 138 of N.I Act and
sentencing to pay the fine amount considering the date of
transaction and even to the extent to order for payment of
compensation also not exorbitant and hence it does not
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requires any interference of this Court and scope of review
is very limited and when the material is rightly considered
by the Trial Court and also the First Appellate Court and
when no perversity is found, question of interference under
the revisional jurisdiction does not arise. Hence, I answer
the point as Negative.
21. In view of the discussions made above, I pass
the following:
ORDER
The Revision Petition is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
RHS
