5. Learned Judge in the First Appellate Court after
judgment of conviction and order of sentence.
6. Being further aggrieved by the same, accused is
It is submitted that, burden lies on the
complainant/Respondent to prove source of
income. The Respondent/complainant has not
produced any bank A/c details to support his the
claim. As per facts of the case,
complainant/Respondent could not prove the
source of income from which alleged loan was paid
to the Petitioner/accused. In the present case, the
Respondent/complainant in his cross examination
has admitted that, his annual income for 2021 is
Rs.25 lakhs. The said amount was got by selling
promogranate (dalimbe). No documents are
produced to show that the said amount was
derived from sale of Promogrante. There is no
averment with regard to said sale in the complaint
or in chief examination. Therefore it is very much
clear that the Respondent/Complainant has no
source of income to lend the Petitioner/accused
such a huge amount of Rs.9,80,000/- by cash.
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Further he stated that, he is not an income tax
assesse. Hence, both the courts have apparently
failed to appreciate this aspect of the matter and
wrongly held that, presumption is in favour of the
Respondent/complainant. The courts below have
concurrently erred in this regard and hence the
judgments of the courts below are perverse,
erroneous and call for interference of this Hon'ble
Court, in the interest of justice.
It is submitted that, the Respondent/complainant
has utterly failed to either produce any documents
or to lead any convincing evidence to show that,
financially he was sound to lend huge sum of
Rs.9,80,000/- by cash. The Petitioner/accused has
successfully rebutted the presumption formed in
favour of the Respondent/complainant about the
existence of legally enforceable debt. The
impugned judgments being perverse & erroneous,
deserves interference of this Hon'ble Court.
It is submitted that, the courts below have ignored
the vital facts regarding the contradictory stand
taken by the Respondent. In fact the Respondent
has alleged in the notice that the amount of
Rs.9,80,000/- was paid to the Petitioner by way of
cash, which is quite inconsistent and contradictory
to the facts which the Respondent has taken the
plea in his complaint and the evidence led by the
complainant and the contents of his examination,
in the cross examination of the respondent, the
respondent has admitted that he has received the
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amount from the appellant and further the
respondent is also agreed that there is no other
witness present at the time of said transaction,
more over the respondent is also failed to produce
the documentary proof of the said transaction.
Hence, judgments of both the courts are not
tenable in law and they have failed to appreciate
the evidence on record in proper perspective
manner. Under the said circumstances, the
judgments of both the courts are liable to be set-
aside on this ground also.
It submitted that, the courts below have failed to
appreciate that, the Petitioner has repaid the
entire loan amount of Rs.9,80,000/- to the
respondent in the year 2016. The said fact has
been admitted by the Respondent/complainant in
the examination. Further the courts below have
failed to appreciate that, the respondent has failed
to produce the documentary evidence stating that,
the respondent given the same amount of loan of
Rs.9,80,000/- in the year 2021.
It is submitted that, the courts below have failed
to consider the fact that the burden of proof in this
case is upon the Respondent to establish his case
beyond reasonable doubt, which the respondent
has miserably failed, besides the Respondent has
not placed any document to prove that the cheque
dated 18-08-2021 for a sum of Rs.9,80,000/- in
favour of the Petitioner in discharge of a legally
enforceable debt and as such the impugned
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judgment are liable to be set-aside on this ground
also.
Both the courts have failed to consider that, has
rebutted the Petitioner/accused presumption
available in favour of the Respondent U/Sec. 139
of N.I. Act.
It is submitted that, both the courts have
committed a serious error in convicting the
Petitioner/accused by mis-interpreting Sec. 118 &
139 of the N.I.Act.
That the Judgment of conviction passed by the
courts below are contrary to law, weight of
evidence, arbitrary and probabilities of case.
Hence, liable to be set aside in limine.
Both the courts below have failed to consider that
there is no privity of contract between the
Petitioner and Respondent and Respondent has
cheated the Petitioner.
The courts have failed to consider the averments
made by the Respondent/Complainant in the
complaint that he has advanced total sum of
Rs.9,80,000/- to the Petitioner.
It is submitted that, both the courts have failed to
consider that at the time of borrowing
Rs.9,80,000/- from the Respondent by the
Petitioner ie. on 08-02-2016, the Petitioner had
issued the cheques including the cheque in
question as Security, the said borrowings were
repaid by the Petitioner, but the Respondent did
not return the cheques to the Petitioner and he
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has misused the said cheque by filing the present
compliant. Hence, the judgments of the courts.
below are bad and not tenable in law.
It is submitted that, both the courts have failed to
consider that the Petitioner though has repaid the
borrowed amount of Rs.9,80,000/- to the
Respondent, which was taken on 08-02-2016, but
the Respondent has failed to return the
instruments like cheques, including the cheque in
question, given as security.
The courts below ought to have disbelieved the
evidence of the Respondent and ought to have
held that, the cheque bearing No:727386, dated
18-08-2021, drawn on the S.B.I., Bangalore
branch is not issued by the Petitioner in favour of
the of the Respondent towards discharge of any
debts, much less borrowings dated 15-07-2021,
but the same was given as security while obtaining
the borrowings on 08-02-2016. The said
judgments are illegal and not sustainable in law.
It is submitted that, both the courts have utterly
failed to understand and appreciate that, mere
denying the suggestion of lending money in 2021
by the Respondent would prove that the
Respondent has got financial capacity to lend such
a huge cash would not amount to proving the
financial capacity. Hence, both the judgments
passed by the courts below are erroneous,
perverse and not tenable in law.
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Both the courts have failed to understand that, the
petitioner was not in station when the alleged
amount was paid on 15-02-2021 as he was
admitted in the Hospital at Rajasthan.
Both the courts have failed to notice that,
Petitioner has proved his defence by
Preponderance of probabilities.
Both the courts are not justified in convicting the
Petitioner, in spite of not producing any document
to prove the huge amount of cash has been paid
without any security and without any documentary
proof to that effect.
That the courts below have acted contrary to the
law laid down by the Hon'ble High Court of
Karnataka and the Hon'ble Supreme Court of
India."
7. Sri B.Chidananda, learned counsel for the revision
petitioner reiterating the grounds urged in the revision petition,
vehemently contented that the entire case of the respondent is
incorrect and both the Courts have not properly appreciated the
material evidence on record and wrongly convicted the accused
resulting in miscarriage of justice.
8. He would further contend that the document marked
at Exhibit D1/statement of account is not properly appreciated by
the learned trial Judge and there was a clear admission in the
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cross-examination of PW1 that the accused filled up the cheque
in hand and then issued the same, but in the next breath, he has
stated that the contents of the cheque is typed and thereafter
issued to him, which shows that complainant is not sure about
the issuance of the cheque by the accused.
9. He would further contend that a blank cheque issued
by accused for submitting has been misused by the respondent
and thus sought for admitting the revision petition.
10. Per contra, Smt.Sonu Suhel N., learned counsel for
respondent supports the impugned orders.
11. Having heard the arguments of both sides, this Court
perused the material on record meticulously.
12. On such perusal of the material on record, issuance
of the cheque signature found therein is not in dispute. If it is the
case of the revision petitioner that the blank cheque has been
misused, there should have been a positive action on the part of
the accused in issuing a legal notice or filing criminal complaint.
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13. It is pertinent to note that there was no reply to the
legal notice though it is duly served. At least after engaging the
services of an advocate before the trial Court, a complaint should
have been filed by the respondent about the alleged misuse of
the blank cheque. No such attempt is made by the accused.
14. Further, the oral evidence placed on record and the
statement of account vide Exhibit D1 of the accused did not
rebut the presumption available to the complainant under
Section 139 of the N.I. Act.
15. Taking note of these aspects of the matter and
following the dictum of the Hon'ble Apex Court in the case of
Rajesh Jain v. Ajay Singh reported in (2023) 10 SCC 148,
the order of conviction needs to be confirmed.
16. However, imposing fine of ₹25,000/- towards the
defraying the expenses of the State needs to be set aside, as
there is no State machinery is involved.
17. Accordingly, following order is passed:
ORDER
i. Criminal revision petition is allowed in part.
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ii. While maintaining the conviction of the accused
for the offence punishable under Section 138 of
the Negotiable Instruments Act, imposition of
the fine of ₹11,00,000/- is reduced to
₹10,75,000/- and entire amount of
₹10,75,000/- is ordered to be paid as
compensation to the complainant.
iii. Imposition of fine amount of ₹25,000/- is hereby
set aside.
iv. Office is directed to return the trial Court records
with copy of this order for issue of modified
conviction warrant.
Sd/-
(V.SRISHANANDA)
JUDGE
CLK
CT:CMU
LIST NO.: 2 SL NO.: 24
