IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL REVISION PETITION NO.552 OF 2011 BETWEEN:
MRS. DILSHAD BANU, R/AT ROSHNI APPARTMENTS, D/NO.24-4-254/38, FLAT NO.107, NEAR K.M.C. HOSPITAL, 6TH CROSS ROAD, 46 DIVISION, MANGALORE.
(BY SRI. P KARUNAKAR, ADVOCATE) AND SURESH K., AGED 38 YEARS, R/AT SHREYA SAGAR NIVAS, MEGONA MANE, KASHITALU JEPPINAMOGARU, MANGALORE.
(RESPONDENT IS SERVED AND UNREPRESENTED) ***** ... PETITIONER ... RESPONDENT THIS CRIMINAL REVISION PETITION FILED UNDER SECTION 397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 20.11.10 PASSED BY THE P.O.,FTC., D.K., MANGALORE IN CRL.A.NO.300/07 AND THE JUDGMENT DATED 3.11.07 PASSED BY THE V JMFC., MANGALORE D.K., IN C.C.NO.2139/06 AND ACQUIT THE PETR.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING, THIS DAY THE COURT PASSED THE FOLLOWING:
ORDER The petitioner being aggrieved by the concurrent findings of the Courts below in CC No.2139/2006 dated 03.11.2007 on the file of the Court of V JMFC, Mangalore, Dakshina Kannada and the judgment and order passed in Crl.Appeal No.300/2007 dated 20.11.2010 on the file of the Fast Tract Court, Mangalore, Dakshina Kannada has preferred this revision petition.
2. It is the case of the respondent/complainant that he is running one ‘Shreya Finance’ and the accused had approached him for a hand loan of Rs.45,000/- in the month of January, 2005 by promising him to return the said amount with interest, within a month. The accused issued two cheques bearing Nos.805177 and 805176 dated 18.03.2005 for Rs.20,000/- and Rs.25,000/- respectively drawn on Vijaya Bank, Jeppu Branch, Mangalore. However, on presentation of the said Cheques, the same were returned for funds insufficient as per the memo issued by the Bank dated 20.05.2005. The legal notice dated 28.05.2005 was issued to the accused calling upon her to make the payment. The said notice was returned with an Endorsement “not claimed” on 31.05.2005. In view of the same, a complaint was filed before the Court of V JMFC, Mangalore, Dakshina Kannada for taking action against accused and to punish for the offence punishable under Section 138 of Negotiable Instrument Act, 1881.
3. Before the Trial Court, the complainant was examined as PW-1 and got marked Exs.P-1 to P-7. The accused examined herself as DW-1. The learned Magistrate considering the oral and documentary evidence, convicted the accused of the offence punishable under section 138 of N.I. Act and sentenced to pay a fine of Rs.50,000/-, in default to pay fine to undergo simple imprisonment for a period of four months. It was further ordered that the entire fine amount of Rs.50,000/- on recovery, shall be paid as compensation to the complainant.
4. Aggrieved by the aforesaid judgment and order, the accused preferred Criminal Appeal No.300/2007 before the Fast Track Court, Mangalore and the learned Sessions Judge by judgment and Order dated 20.11.2010, dismissed the said appeal.
5. I have heard the learned counsel appearing for the petitioner. Though the respondent is served, he is un- represented.
6. It is the contention of the learned counsel appearing for the petitioner that the complainant has failed to establish the transaction between the parties and though the complainant claims that he is a financier, however, no documents are produced. He further submits that both the cheques are dated 18.03.2005 pertaining to the same bank and if at all the petitioner had to issue any cheque to discharge the liability raised, they would have issue a single cheque for payment instead of issuing two cheques.
7. It is further submitted that both the Courts have failed to consider the fact that the accused had kept the cheques in drawers in her house and same were taken away by the husband of her sister for some financial transaction and the said cheques were misused and a false case was registered against the accused. Accordingly, the learned counsel prays to set aside the impugned judgment and order passed by the court below.
8. The case of the complainant is that the accused borrowed a hand loan of Rs.45,000/- and in discharge of the liability, issued two cheques bearing No.805177 and 805176 dated 18.03.2005 for a sum of Rs.20,000/- and Rs.25,000/- respectively drawn on Vijaya Bank, Jeppu Branch, Mangaluru and when the said cheques were presented for encashment, the same was returned with an endorsement “fund insufficient” and in spite of issuance of notice, the accused failed to repay the amount and therefore committed an offence punishable under Section 138 of Negotiable Instrument Act.
9. It is relevant to note that the accused has admitted the cheques at Exs.P-1 and P-2 as belonging to her. She has also admitted the signature on the said cheques. It is the primary contention of the accused that the said cheques were stolen by her brother-in-law, who was having transaction with the complainant and said cheques were misused. However, as rightly noted by the courts below, there is absolutely no evidence to believe the said contention raised by the accused. The accused has been examined herself as DW-1. According to her, she has not borrowed a hand loan of Rs.45,000/- as stated by the complainant and she has not issued any cheques to the complainant as per Exs.P-1 and P-2. She has deposed in her evidence that she informed her daughter to give the said cheques in question to make payment towards rent and instalment of refrigerator. However, her daughter informed that her sister’s husband by name Imtiaz took away the said cheques. The said cheques were not returned to her as noted supra. The accused has utterly failed to establish the fact that the cheques in question were taken away by her brother-in-law and the same were later misused by the complainant. The Trial Court has observed that if she had to give the said cheques towards rent and for payment of refrigerator instalment, then she would have written the amount through the Cheques instead of leaving the same blank and there is no proper explanation in this regard.
10. The Trial Court has taken into consideration the evidence of PW-1, the complainant. According to PW-1, Exs.P-1 and P-2 are the two cheques issued by the accused in discharge of legally enforceable debt. The same came to be dishonoured for insufficiency of funds. The signature in the Cheques having not been disputed by the accused, hence, a presumption under the N.I. Act has to be drawn in favour of the complainant.
11. The appellate court while re-appreciating the evidence and material on record has also considered that there is no evidence to believe the contention raised by the accused that the Cheques which were kept in the drawer in her house were taken away by the husband of her sister and later they were misused. It is also noted that there was no any criminal cases filed against the brother-in-law of the accused. The complainant/PW-1 has denied the suggestion put to him that the disputed cheques were handed over to him by brother-in-law of the accused by name Imtiaz, there was no impediment for the accused to examine her sister’s husband before the Court to prove her contention. The accused has failed to rebut the legal presumption which was available to the complainant under Section 118 and 139 of the N.I. Act. I see no error in the impugned judgment and order passed by the courts below.
Accordingly, the petition is dismissed.
Sd/- JUDGE Snc