IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE:
THE HON’BLE MR. JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.966/2015 BETWEEN:
M/s AMMA CONSTRUCTIONS AND DEVELOPERS NO.70/4, DATTAGALLI, 3RD STAGE, MYSURU AND M/s CHELUVANARAYANASWAMY ENGINEERING WORKS SHOP NOS.1 & 2, NO.417/1, A & B BLOCK, CHADURGANGA ROAD RAMAKRISHNA NAGARA, MYSURU REP BY ITS PROPRIETOR SANTHOSH B.G., S/O SRI V.GURUSIDDAIAH NO.5, SOMANATHANAGARA ADITHYA CIRCLE, MYSURU-570154 ALSO AT SHOP NO.2 NO.3388, KANAKADASA NAGARA NEAR NETHAJI CIRCLE RING ROAD, DATTAGALLI 3RD STAGE, MYSURU-570154. ... PETITIONER [BY SRI V.R.BALARAJ, ADV. – ABSENT.] AND:
M/s SUNANDA STEELS NO.555/T, NEW KANTHARAJA URS ROAD KUVEMPU NAGAR, MYSURU-570154 REP BY ITS MANAGING DIRECTOR SRI RENUKA BABU …RESPONDENT [BY SRI M.SHIVA PRAKASH, ADV. – ABSENT.) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 31.10.2013 PASSED BY THE I ADDL. I C.J. AND J.M.F.C., MYSURU IN C.C.NO.1190/2011 PRODUCED AT ANNEXURE-A AND THE JUDGMENT DATED 04.05.2015 PASSED BY THE VII ADDL. S.J., MYSURU IN CRL.A.NO.12/2015 PRODUCED AT ANNEXURE-B.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The present Criminal Revision Petition has been filed by the petitioner – accused being aggrieved by the judgment passed by the VII Additional Sessions Judge, Mysuru, in Crl.A.No.12/2015 dated 04.05.2015, whereunder the judgment of conviction and order of sentence passed by the I Additional Civil Judge and JMFC, Mysore, in C.C.No.1190/2011, dated 31.10.2013 was confirmed.
2. Neither the learned counsel for the petitioner – accused nor the respondent’s counsel is present. This matter is of the year 2015. As the Revision Petition cannot be dismissed for default, the same is taken up on merits and disposed of by this order.
3. The case of the complainant before the Court below is that the accused is a developer and also doing Engineering works as Proprietor of M/s. Amma Constructions and Developers. The accused was purchasing the steels from the complainant on credit basis since 2004 and used to make payment by way of cash or through cheques towards purchase of the steels in favour of the complainant. The accused was liable to pay a sum of Rs.7,53,295/- towards the purchase of the steel on various dates. The accused issued post dated cheque bearing No.443045 for a sum of Rs.71,400/- on 25.09.2010, drawn on the State Bank of India, Ramakrishnanagar Branch, towards the discharge of the liability. When the said cheque was presented through the banker of the complainant, the same was returned dishonoured for “not arranged for”. The complainant got issued notice dated 18.04.2011 calling upon the accused for payment of the said cheque amount. The said notice was duly served on the accused. The accused neither replied to the said notice nor returned the amount. As such, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as ‘the Act’).
4. In order to prove the case of the complainant, the complainant examined its Managing Director as PW.1 and got marked Exs.P1 to P26. The accused got himself examined as DW.1 and got marked Exs.D1. After hearing the learned counsel appearing for the parties, the Trial Court convicted the accused. Being aggrieved by the said judgment of the Trial Court, the accused preferred the appeal before the learned Sessions Judge and it was also dismissed by confirming the order of the Trial Court.
5. The main grounds urged by the petitioner in the petition are that both the Courts below have committed grave error in convicting the petitioner – accused and have failed to appreciate the material placed on record. It is further contended that the cheque in question has been altered by affixing the first digit ‘1’ into ‘7’. Actually, the petitioner – accused has issued a cheque for a sum of Rs.11,400/-. It is further contended that the said fact has not been properly considered and appreciated by the Courts below. It is his further contention that the complainant has not produced any invoices in respect of the existence of the said amount due from the accused. On these grounds, it is prayed to allow the petition and to set aside the impugned orders.
6. As could be seen from the contentions which has been raised and other material placed on record, the accused has taken up a contention that he cleared the entire amount due from him and he issued a cheque for a sum of Rs.11,400/- and thereafter, the complainant by altering first digit ‘1’ into ‘7’, made the amount as ’71,400’. When the accused admitted the signature on the cheque – Ex.P1 and has contended that it is issued for Rs.11,400/-, then under such circumstances, the Court is duty bound to draw a presumption under Section 139 of the Act. This preposition of law has been laid down by the Hon’ble Apex Court in the case of Rangappa vs. Sri. Mohan reported in (2010) 11 SCC 441, wherein it has been observed that the presumption mandated under Section 139 includes a presumption that there exists a legally enforceable debt or liability and the accused is entitled to rebut the said presumption in the defence and he can contest the case. But as could be seen from the evidence of DW.1, he has specifically contended that the first digit ‘1’ has been altered as ‘7’. But in order to substantiate the said fact, he has not made any effort to send the cheque to any handwriting expert and get it confirmed that the said cheque has been altered by the complainant.
7. The another contention which has been taken up by the accused is that he has cleared the amount due from the complainant. But in order to substantiate the said fact, he has not even produced a piece of evidence. Even, as could be seen from the records, it indicates that several cheques have been issued by the accused and it is also the specific case of the complainant that there was transaction between the accused and the complainant. Even as could be seen from the cheque – Ex.P1, there is no material alteration as contended by the accused. The Court below has observed that on bare perusal of the said cheque – Ex.P1, it does not disclose such material alteration. Even it has been observed that the amount mentioned in words also indicates that it is Rs.71,400/-. When the words written are also in consonance with the figure, then under such circumstances, the contention taken up by the accused that first digit ‘1’ has been altered as ‘7’ and it has been made as ’71,400’ cannot be accepted. If really he was due only to the extent of Rs.11,400/-, then under such circumstances, he could have mentioned the said amount even in words also.
8. Be that as it may, as per Section 20 of the Act, if the accused issued a blank cheque with signature and hand it over to the complainant, thereby he has given authority to complainant to complete said Negotiable Instrument and present it before the bank. In that light also, the contention of the accused cannot be accepted.
9. I have carefully and cautiously gone through the grounds urged in the petition as well as the judgment of the First Appellate Court. There are no good grounds made out by the petitioner – accused to interfere with the orders of the Courts below. The orders of the Courts below deserve to be confirmed and both the orders of the Courts below are confirmed.
10. The Criminal Revision Petition is devoid of merits and same is liable to be dismissed, accordingly it is dismissed.
Sd/- JUDGE PMR.