IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1182/2017 Between:
Nagaraj S/o. Narasimhaiah Aged about 67 years Gummasandra Village Kasabha Hobli Magadi Taluk Ramanagar Dist – 562 120. ...Petitioner (By Sri Kumara K.G, Advocate - Absent) And:
M/s N. Mahaveer Raj H.U.F No.77, 2nd Floor Mahalakshmi Mahal D.K. Lane, Chikpet Bengaluru – 560 053.
Represented by its Manager Mr. Rajendra Prasad S/o. Nemichand Aged about 49 years ... Respondent (By Sri G. Jairaj., Advocate) This Criminal Revision Petition is filed under Section 397 r/w. Section 401 of Cr.P.C., praying to set aside the judgment and sentence passed by the XLII Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.24323/2015 dated 16.05.2016 and judgment dated 20.09.2017 passed by the LXII Additional City Civil and Sessions Judge, Bengaluru in Crl.A No.832/2016 by allowing this petition.
This Criminal Revision Petition coming on for Orders, this day, the Court made the following:
ORDER The present revision petition has been filed by the petitioner/accused challenging the judgment passed by the LXII Additional City Civil and Sessions Judge, Bengaluru in Crl.A No.832/2016 dated 20.09.2017 whereunder, the judgment of conviction and order of sentence passed by the XLII Additional Chief Metropolitan Magistrate, Nrupathunga Road, Bengaluru City in C.C.No.24323/2015 dated 16.05.2016 has been confirmed.
2. I have heard the learned counsel for the respondent/complainant. The learned counsel for the petitioner/accused remained absent. In spite of giving sufficient opportunity and called this case on regular basis since Criminal Revision Petition cannot be dismissed for default, the same is disposed off on merits.
3. The factual matrix of the case of the complainant before the Court below is that the complainant is doing vehicle hire purchase business and the petitioner/accused entered into hire purchase agreement with the complainant in respect of vehicle bearing No.KA-02-D-7542 and 7543 which are commercial vehicles on 10.06.2012 for a sum of Rs.3,60,000/-. The accused agreed to pay monthly installments at the rate of Rs.16,500/- for a period of 4 months and Rs.14,700/- for a period of 20 months. The accused paid an amount of Rs.2,02,800/- towards due of Rs.3,60,000/-. The accused had earlier issued three cheques towards part payment in the month of January, 2015 but all the three cheques were dishonoured and thereafter the accused issued cheque bearing No.563822 dated 10.06.2015 for Rs.73,500/- drawn on Canara Bank. When the said cheque was presented on 27.04.2015 through the banker of complainant, it was dishonoured with share “insufficient funds” with memo dated 29.07.2015. Thereafter, on 14.08.2015 the complainant got issued legal notice and the accused received the same on 18.08.2015 and even after receipt of notice, he did not make payment of the amount and as such a complaint was filed. The Court below took cognizance and thereafter secured the presence of the accused. The accused was provided with the documents and after hearing the accused, plea was recorded, the accused pleaded not guilty and claimed to be tried and as such the trial was fixed.
4. In order to prove the case of the complainant, the complainant got examined himself as PW.1 and got marked Exhibits P.1 to P.9. Thereafter, the statement of accused was recorded under Section 313 of Cr.P.C., and the accused got examined himself as DW.1 and got marked Exhibits D.1 to D.9. After hearing the learned counsel for the parties, the trial Court convicted the accused. Challenging the same, the accused preferred the appeal, the appellate Court also confirmed the same. Being aggrieved by the judgment of Courts below, the petitioner is before this Court.
5. The main grounds urged in the petition by the learned counsel for the petitioner/accused are that the documents produced at Exhibits D.1 to D.9 i.e., receipts clearly goes to show the fact that the entire amount has been paid by the accused to the complainant. When taking into consideration the said aspect, erroneously the Courts below have convicted the accused. It is his further submission that there was no legal recoverable debt or liability and only on the basis of presumption it cannot be inferred that there was a legally recoverable debt. He further submitted that the Court below has gone to the extent of saying that the accused has to prove rebuttable evidence beyond all reasonable doubt but it has to be looked into on preponderance of probability and no strict proof is required to rebut the said presumption. He further submitted that without looking into the material and other record both the Courts have convicted the accused. On these grounds, he prays to set aside the impugned judgment of Courts below.
6. Per contra, the learned counsel appearing on behalf of the respondent/complainant vehemently argued and contended that the accused has not disputed the transaction taken place him and the complainant and his specific contention is that he has paid the entire amount due to him but in order to substantiate the said fact, he has produced Exhibits D.1 to D.9. The trial Court after considering the fact that 9 receipts produced, the amount mentioned therein if it is totaled it comes to Rs.1,10,000/- but not the entire amount which was due to the complainant. When once the accused has taken up the contention that the entire amount has been paid and he has also produced the receipts then he has to produce all the receipts for having paid the entire amount. When the said receipts does not disclose the entire payment of amount, then under such circumstances, the Courts below have rightly come to a right conclusion and have rightly convicted the accused for having not paid the remaining amount of the cheque. He further submitted that mere production of Exhibits D.1 to D.9 is not going to rebut the fact that he has paid the entire amount. The judgment of Courts below is justifiable. He further submitted that the petitioner/accused has not made out any good grounds to set aside the impugned judgment. On these grounds, he prays to dismiss the petition.
7. I have gone through the submission of the learned counsel appearing for the respondent and contentions taken up by the learned counsel for the petitioner in the petition.
8. On going through the lower courts record, it reveals that the complainant got examined himself as PW.1. He has reiterated in his evidence what has been contended in the complaint. During the course of cross- examination of PW.1 it has been suggested by the defence that confronting Exhibits D.1 to D.9 the said amount has been paid to the complainant and the said fact has been admitted by the complainant but however he has also further deposed that the said amount is not going to tally with the amount payable. Apart from that nothing has been elicited so as to discard from the evidence of PW.1.
9. The accused got examined himself as DW.1 and got marked Exhibits D.1 to D.9. In his evidence he has deposed that at the time of securing loan, the complainant had obtained his signature on blank paper and blank forms and had taken few blank cheques for security purpose and the same has been misused. He has further submitted that he has fully repaid the loan amount along with interest. But during the course of cross-examination, he has admitted the fact that including interest every month he used to pay monthly installments of Rs.16,500/- for a period of 4 months and Rs.14,700/- for a period of 20 months and he has to pay the said amount from 10.07.2012 to 10.06.2014. He has further deposed that he has not calculated the amount which has to be paid to the complainant. Apart from that nothing has been elicited from the mouth of this witness.
10. By going through the evidence and other materials placed on record, it indicates that it is the specific contention of the accused that he has paid the entire amount. He has admitted borrowing of the amount and contended that he has paid the entire amount and has produced Exhibits D.1 to D.9. The Court below has calculated the said amount as Rs.1,10,000/- but as could be seen from the contention of the complainant and evidence of PW.1, the total amount due to the complainant was Rs.1,10,000/-. Even the receipts produced at Exhibits D.1 to D.9 do not substantially prove the fact that the entire amount has been paid by the petitioner/accused. When once he admits the loan transaction and issuance of cheque, then under such circumstances, the Court is duty bound to draw a presumption under Section 139 of the Negotiable Instruments Act, 1881 that the said cheque has been issued in discharge of debts or a liability in whole or in part. The other records also go to show that the said cheque has been presented within time stipulated and it was dishonoured. Thereafter, legal notice has been issued under Section 138 of N.I. Act and the same has been served on the accused. All these materials clearly goes to depict that ingredients of Section 138 of N.I. Act has been proved by the complainant. When the accused takes up a specific defence that he has paid the entire amount then he has to produce entire material to substantiate the said contention. In the absence of such material, if he produced the receipt only to show that he has paid Rs.1,10,000/- then what happened with regard to remaining amount and what prevents him to produce the remaining receipts for having paid the amount under due has to be shown by the accused himself. Under the said facts and circumstances, the trial Court as well as First Appellate Court considered the said fact rightly and have rightly come to a right conclusion by convicting the accused. There are no good grounds to interfere with the judgments of Courts below. Revision Petition is devoid of merits and hence, liable to be dismissed.
Accordingly, revision petition is dismissed.
Pending I.A.No.1/2019 does not survive for consideration.
Sd/- JUDGE nms