Karnataka High Court
Sri Dr. A.G. Bandi vs Sri Adinarayana Setty on 25 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 225 of 2021
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. 225 OF 2021
BETWEEN:
1. SRI. DR. A.G. BANDI,
S./O LATE GURUMURTHAPPA,
AGED ABOUT 69 YEARS,
RETIRED PROFESSOR,
R/AT NO.656,
INFRONT OF KALWARI BETTA,
BESIDE COFFEE BOARD LAYOUT,
KEMPAPURA HEBBAL,
BENGALURU-560 024.
...PETITIONER
(BY SRI. K.S.MALLIKARJUNAIAH, ADVOCATE)
AND:
Digitally signed
by DEVIKA M 1. SRI. ADINARAYANA SETTY,
Location: HIGH S/O V.M. RAJAGOPAL SETTY,
COURT OF
KARNATAKA AGED ABOUT 54 YEARS,
R/AT NO.1143, 5TH CROSS,
4TH MAIN, K.N.EXTENSION,
YESHWANTHAPURA,
BENGALURU-560 022.
...RESPONDENT
(BY SRI. VIRUPAKSHAIAH P.H., ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
DATED 06.01.2020 IN CRL.A.NO.1264/2019 ON THE FILE OF
LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
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CRL.RP No. 225 of 2021
BENGALURU (CCH-66) AND THE JUDGMENT DATED 12.04.2019
IN CC.NO.22472/2017 ON THE FILE OF XII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL ORDER
1. Heard the learned counsel for revision petitioner
and also the learned counsel for the respondent.
2. This revision petition is filed against the
concurrent of Trial Court and First Appellate Court for the
offences punishable under Section 138 of N.I Act for
conviction and sentence.
3. The factual matrix of case of complainant
before the Trial Court is that the accused has borrowed an
amount of Rs.4,00,000/- from him in the month of
September 2016 second week to meet his urgent
requirement and legal necessities and promise to repay
the said amount within six months considering the needs
of the accused, he paid sum of Rs.4,00,000/- to the
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accused and further contend that after lapse of six
months, he approached and demanded the accused for
repayment of the money which is subject matter of two
Cheques. When the said Cheques are presented, both
Cheques are dishonored with an endorsement 'Funds
insufficient'. Immediately he informed the accused about
dishonor of the Cheques and he failed to pay the loan
amount and the complainant left with no other option, he
has issued legal notice through certificate of posting and
also RPAD and notice was duly served and accused on
19.07.2017 and despite of service of notice, no reply was
given and not complied with the demand and hence filed
the complaint and the Trial Court has taken the cognizance
and secured the accused and he did not plead guilty and
hence trial was commenced.
4. It is also the case the complainant has been
examined as PW1 and got marked Ex.P1 to Ex.P7(a) and
he was subjected to 313 statement and thereafter accused
also examined himself as DW1 and got marked the
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documents as Ex.D1 and Ex.D2(c). The Trial Court having
considered the material accepted the case of the
complainant and not accepted the defense theory of the
accused, since he has set up the defence that earlier also
he used to avail the money and he had received an
amount of Rs.1,00,000/- and the same was repaid. The
Cheques obtained earlier were misused and filed the false
case.
5. Being aggrieved the conviction and sentence an
appeal is filed in Crl.A.No.1264/2019 and First Appellate
Court having considered the material on record, both oral
and documentary evidence placed on record and relying
upon the documentary evidence, comes to the conclusion
that burden is on the accused to rebut the presumption
and no doubt he has been examined as PW1. Though he
contend that these two Cheques are misused by the
complainant and in order to substantiate the said
contention nothing is placed on record. He has stated in
his evidence that complainant has filed false case and he
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has not borrowed the money and only borrowed
Rs.1,00,000/- and the same was repaid. Though such
defense was taken, he did not dispute the signature but
only disputes the contention that the Cheques were
misused. The First Appellate Court taken note of the
judgment of the Apex Court in Rangappa V/s Mohan
wherein presumption was drawn and also in paragraph
No.21 comes to the conclusion that in the absence of
compelling justifications, reverse onus clauses usually
impose an evidentiary burden and not a persuasive
burden. It is settled law that the accused has to rebut the
presumption under Section 139 and not rebutted the same
by adducing any cogent evidence.
6. The contention that there was no any source of
income is concerned is also discussed in paragraph No.22
that he categorically says that he is running a petty shop
on which he has earning Rs.10,000/- per month and he
used to deposit savings in Shamrao Vital Co-operative
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Bank Ltd., and amount paid to the accused was withdrawn
from his account and hence, dismissed the appeal.
7. The counsel appearing for the revision
petitioner would vehemently contend that though he says
that he withdrew the money from the bank, but no
document is placed before the Trial Court to accept the
said contention. The counsel also would vehemently
contend that it is the case of the complainant that in the
2nd week of September amount was paid but no date was
mentioned in the complaint as well as in his evidence. The
counsel also would contend that no notice was served and
no source of income and not produced any bank details to
show that he was having money in the bank. It is the
specific case of the revision petitioner earlier Cheques are
misused and hence, both the Courts have not appreciated
the material on record in a proper prospective and the
reasoning given by both Courts are not legal and hence
revision jurisdiction can be invoked.
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8. Per Contra, the counsel for respondent would
vehemently contend that accused took several defense
and one of the defense is that he has received only
Rs.1,00,000/- in the year 2009 and the same was paid. In
order to prove the factum that he had paid the
Rs.1,00,000/ also nothing is placed on record. The counsel
also would contend that other defense was taken that
subject matter that is Cheques were given in earlier
transaction as security and the same have been misused.
In order to prove the fact that the same has been misused
no cogent evidence has been placed by the revision
petitioner. The counsel also would vehemently contend
that no dispute with regard to the issuance of Cheque and
also signature is not disputed. When such being the case,
the Court has to draw the presumption under Section 139
of N.I Act and accordingly, both the Trial Court and First
Appellate Court drawn the presumption since there is no
any plausible evidence on the part of the revision
petitioner with regard to the defense is concerned. The
counsel would vehemently contend that notice address is
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admitted stating that if any notice sent to the particular
address which is mentioned in the complaint and also in
the notice would be served. When such admission is given
when the address mentioned in the notice as well as in the
complaint is that of the address of the revision petitioner
cannot deny the same. The notice has been sent through
registered post as well as certificate of posting. When the
address is admitted cannot contend that no notice was
served. The counsel also would vehemently contend that
in respect of very same address only summons was also
served. The counsel would vehemently contend that very
contention of the revision petitioner's counsel that his
income was Rs.10,000/- per annum cannot be accepted
and he specifically deposed that his income was
Rs.10,000/- per month. Hence, the said contention cannot
be accepted.
9. The counsel appearing for the revision
petitioner in support of his argument he relies upon the
judgment reported in (2015) 1 Supreme Court Cases
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99 in case of K.Subramani V/s K.Damodara Naidu and
counsel would vehemently contend that legally recoverable
debt not proved as complainant could not prove source of
income from which alleged loan was made to appellant-
accused, presumption in favour of holder of Cheque,
hence, held, stood rebutted, acquittal restored and counsel
referring this judgment also would vehemently contend
that this judgment is aptly applicable to the case on hand
since source has not been proved.
10. The counsel appearing for the revision
petitioner also relied upon the judgment AIR 2008
Supreme Court 278 in case of John.K.John V/s Tom
Varghese and Anr and referring this judgment also
counsel would contend that respondent alleged to have
borrowed huge sum from appellant-complainant despite
suits for recovery of defaulted amount filed against him by
appellant-no document is executed except the Cheque
which was given earlier and observing this judgment
finding of fact by High Court that respondent did not issue
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Cheques in discharge of any debt and discharged burden
of proof cast on him under Section 139, being not
perverse cannot be interfered with under Art.136.
11. The counsel appearing for
respondent/complainant also as against the judgments
referred by the revision petitioner relied upon the
judgment reported in LAWS(SC) 2015 4 79 in case of
T.Vasanthakumar V/s Vijayakumari wherein held that
where issuance of Cheque and signature of accused
thereon has been accepted by him presumption under
Section 139 would operate.
12. The counsel relied upon the judgment of
Rangappa V/s Mohan wherein also the counsel brought
to notice of this Court the discussion made with regard to
accused had made regular payments to complainant in
relation to construction of his house does not preclude the
possibility of complainant having spent his own money for
same purpose, very fact that accused had failed to
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statutory notice under Section 138 of Act, leads to
interfere that there was no merit in complainant's version
of spending his own money, can be said that accused
failed to rebut presumption by raising probate defence.
13. Having considered the submission of
petitioner's counsel and also the counsel appearing for the
respondent and also the material on record, since this
Court secured the records and having considered the
considering both oral and documentary evidence placed on
record that point that would arise for consideration of this
Court are:
1) Whether the Trial Court and First Appellate
Court committed an error in convicting and
sentencing and whether this Court can
invoke revisional jurisdiction in coming to
the conclusion that finding is perverse and
not legal and it requires interference?
2) What Order?
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14. Having heard the respective counsel, it is the
specific case of the complainant that he had lend the
money of Rs.4,00,000/- in the 2nd week of September-
2016. No doubt as contended by the counsel appearing for
the petitioner that specific date of advance is not
mentioned, but categorically stated that the accused had
given assurance to repay the amount within six months
and when he did not repay the amount, he gave two
Cheques and those two Cheques are marked and counsel
for the petitioner also not disputes the fact that Cheque
belongs to his account and also signature belongs to his
account.
15. The defence raised by the petitioner that earlier
there was transaction between both of them and also
borrowed an amount of Rs.4,00,000/- and the same was
repaid and admission also given by PW1 that earlier there
was a transaction between both of them and also contend
that no source of income to make such payment of
Rs.4,00,000/- and not produced bank details also even
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though submits that amount was drawn and paid the
same. In order to substantiate the contention that earlier
two Cheques were given, nothing is placed on record. But,
the PW1 categorically admits that earlier there was
transaction between them and also he categorically says
that he clear the money by way of cash in his house and
at that he and his wife and also accused were there in the
house and also categorically says that he was drawn the
money from the bank and gave the money but no
document is placed for having drawn the money. But the
fact is that DW1 himself admits that he was transacting
with the complainant and also he used to say that he used
to collect the amount of Rs.25,000/- and Rs.30,000/- in
the year 2002-03 and he repaid the amount within 2 or 3
years and also categorically admits that he used to collect
the money whenever he need of money and only he says
that one or two times he has taken the money. Hence, it is
very clear that when he was in need of money, he used to
borrow the money from the complainant.
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16. It is also important to note that he categorically
says that he availed the money in the year 2009, but he
repaid the amount in the year 2015 and also he does not
remember on what date he paid the interest and also he
categorically admits that when the two Cheques which
have been received by him and when he did not return the
same, he has not given any notice. There was no any
difficulty to issue such notice. He also categorically admits
that he is having the acquaintance with the knowledge of
bank transaction and he has not given any stop payment.
When these admissions are elicited from the mouth of
DW1, though he contend that earlier he availed the money
and returned the same and in order to returning the
money, either Rs.25,000/- to Rs.30,000/- or an amount of
Rs.1,00,000/- also no such document is placed. It is the
contention of the petitioner's counsel that his admission is
very clear that he is getting sum of Rs.10,000/- per year
and the said contention cannot be accepted having read
the evidence, income of Rs.10,000/- per month not per
annum and also when he did not dispute the fact that he
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was availing the money from the complainant as and when
he required the money cannot contend that there was no
any source of income for him and rightly drawn the
presumption under Section 139 of N.I Act since there was
no any rebuttal presumption by the revision petitioner
placed any cogent evidence and there is no any plausible
defence by the petitioner that he repaid the money and in
the absence of any repayment of money and having
admitted the Cheques to the tune of Rs.2,00,000/- each
which are the subject matter and also categorically admits
that if any notice is sent to him in respect of the very
same address and the address is correct and the same will
be served. The fact that the notice was sent through RPAD
and certificate of posting receipt is also not in dispute and
certificate of posting is also produced and RPAD cover was
returned and when he categorically admits that the
address is correct and if any notice is sent and the same
will be served.
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17. The very contention that notice has not been
served cannot be accepted and not disputes the address
mentioned. No doubt he has produced the document of
exhibit D-series and the same is with respect to having
made the payment. No dispute that there were
transaction between the complainant and accused. The
production of passport will not rebut the evidence of
complainant and there is no such cogent evidence for
having repaid the amount as contended and also there
were a transaction between both of them and the grounds
which have been urged cannot be accepted and it is
settled law that only revision Court can interfere if
reasoning given by both the Courts are not legal and if any
perversity is found in giving such reasoning and finding,
then only Court can exercise this revisional jurisdiction. No
doubt counsel appearing for the petitioner relied upon the
judgment of AIR 2008 SC 278 and Court has to take
note of each factual aspects of the case while considering
the material on record, the very rebuttal presumption
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under Section 139 of N.I Act then Court can take notice of
conduct of the parties.
18. In the case on hand, no reply was given and
also Cheque was not disputed and when such being the
case, there is no any rebuttal and hence, the judgment
relied upon by the petitioner's counsel will not comes to
the aid of petitioner. No doubt the other judgment in case
of Subramani which is referred supra also with regard to
the legally recoverable debt is concerned and in the
present case on hand, admittedly he used to avail loan
from the complainant and presumption also in favor of
holder of Cheque. Though counsel contend that no source
of income is concerned, if no source of income to the
accused, what made him to avail the loan earlier also even
to an extent of Rs.25,000/- to Rs.30,000/- and also as
admittedly he availed the loan of Rs.1,00,000/- and repaid
the same. No such material is placed and hence this
judgment also not comes to the aid of the petitioner's
counsel. On the other hand, the counsel relied upon the
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judgment of Rangappa case as well as the judgment of
Vasanthkumar case wherein discussed with regard to the
presumption as well as the non-issuance of reply notice
when the demand was made. Hence, these judgment are
applicable to the case on hand as there is a presumption in
favour of the complainant since the accused admitted the
signature as well as the Cheque and though contend that
the same was given in respect of earlier transaction is
concerned, but no steps was taken when the Cheque was
not returned and did not given any stop payment or also
cause any notice to return those Cheques with regard to
the earlier transaction is concerned. When such material
available on record, I do not find any ground to reverse
the finding of both the Courts in the absence of perversity
and question of reversing the same does not arise. The
order not suffers from any legality and correctness. Hence,
I answer the point as Negative.
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19. In view of the discussions made above, I pass
the following:
ORDER
The Revision Petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
