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.1267 OF 2011 BETWEEN:
S. SRINIDHI, S/O. LATE K. SRINATH, RESIDING AT NO.22/18, 2ND CROSS, M.G.K. MURTHY LAYOUT, CHAMARAJPET, BANGALORE-18.
[BY SRI. L. SUDHARSHAN, ADVOCATE] AND:
JANARDHAN RAJU, S/O. RAJU, MAJOR, R/AT NO.305, 1ST CROSS, 10TH BLOCK, NAGARABHAVI, … PETITIONER BANGALORE. … RESPONDENT [RESPONDENT IS SERVED AND UNREPRESENTED] *** THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTIONS 397 R/W. 401 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE PASSED ON 01.03.2010 MADE IN C.C. NO.5657/2007 ON THE FILE OF THE XII-ACMM, BANGALORE AND IN CRL. APPEAL NO.350/2010 DATED 17.10.2011 ON THE FILE OF THE P.O., FTC- VI, BANGALORE AND DISMISS THE COMPLAINT OR THE HON’BLE COURT MAY BE PLEASED TO REFER THE MATTER BACK TO THE TRIAL COURT TO ALLOW THE ACCUSED/PETITIONER TO DEFEND HIS CASE BY ADDUCING THE DEFENCE EVIDENCE, WITH ANY CONDITION THAT THIS HON’BLE COURT MAY DEEM FIT AND TO PASS SUCH OTHER ORDER OR ORDERS AS THIS HON’BLE COURT DEEMS FIT.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING, THIS DAY THE COURT PASSED THE FOLLOWING:
ORDER The petitioner/accused has preferred this revision petition, challenging the Judgment and Order passed by the Court of the XII Additional Chief Metropolitan Magistrate, Bengaluru, dated 01.03.2010 in CC No.5657/2007, and the judgment and order passed by the appellate court dated 17.10.2011 in Criminal Appeal No.350/2010.
2. I have heard the learned counsel appearing for the petitioner. The respondent though served, is unrepresented.
3. It is the case of the complainant that the accused borrowed a hand loan of Rs.1,30,000/- from the complainant, agreeing to repay the same within a short period. However, in spite of repeated request, the accused did not pay the amount towards the discharge of loan raised. On the other hand, he had issued a cheque bearing Nos.915585 dated 09.10.2006 for the said sum drawn on ICICI Bank Limited, Bengaluru. When the complainant presented the said Cheque for encashment, it was returned to the Drawer with an Endorsement “funds insufficient”. The complainant got issued legal notice to the accused through RPAD as well as under certificate of posting calling upon him to pay the amount covered under the Cheque issued by him. Though the notice was duly served on the accused, however, he did not make the payment and therefore, the respondent filed a complaint under Section 200 of Cr.P.C. against the acused for having committed the offence punishable under Section 138 of N.I. Act.
4. Before the Trial Court, the complainant got himself examined as PW-1 and got marked the documents at Exs.P-1 to P-7. The accused did not choose to examine any witness on his behalf and no documents were marked.
5. The Trial Court considering the oral and documentary evidence on record, convicted the accused for the offence punishable under Section 138 of N.I. Act and imposed a fine of Rs.2,05,000/- on the accused and in default of payment of fine amount, to undergo simple imprisonment for a period of six months. A sum of Rs.2 Lakhs was awarded as compensation to the complainant as per Section 357 of Cr.P.C. and the balance fine amount of Rs.5,000/- was forfeited to the State.
6. Aggrieved by the aforesaid judgment and order of conviction and sentence passed by the Trial Court, the accused approached the Sessions Court and the learned Sessions Judge was pleased to partly allow the appeal preferred by the accused and modified the sentence of fine imposed by the Trial Court by reducing the same to Rs.1,50,000/- and in default of payment of fine, to undergo simple imprisonment for six months etc., 7. It is the contention of the learned counsel for the petitioner that there were several transactions between the accused and the complainant and in this regard, the accused had given as many as fourteen cheques and one of the said cheques was misused by the accused. It is contended that the accused has not taken any hand loan from the complainant as alleged and therefore, there is no liability for the accused to pay the amount. It is further contented that the complainant has failed to prove that there is legally dischargeable debt and therefore the courts below committed a grave error in committing the accused.
8. It is the case of the complainant that the accused borrowed a hand loan of Rs.1,30,000/- from him and in discharge of the said liability, the accused issued a cheque bearing No.915585 dated 09.10.2006 drawn on ICICI Bank, Chamarajapet Branch, Bengaluru. When the said cheque was presented for encashment, the same was dishonored with an endorsement “funds insufficient”. In spite of service of statutory notice on the accused, the accused failed to make the payment and therefore, he committed an offence punishable under Section 138 of N.I. Act.
9. The complainant has been examined himself as PW-1. He has reiterated the complaint averments. According to the accused, there were several transactions between himself and the complainants and in this regard, the complainant took about fourteen blank cheques and one of the said cheques was misused by the complainant. To establish the same, the accused has not led any evidence. Ex.P-1 is the Cheque, Ex.P-2 is the bank endorsement, Ex.P-3 is the copy of the legal notice, Exs.P-4 to P-7 are the acknowledgements and postal receipts with regard to the receipt of legal notice by the accused.
10. There is nothing elicited from the cross- examination of the complainant so as to disprove the fact that the accused having not issued any cheque to discharge the liability. The accused has not disputed that the cheque does not belong to him and he has also not disputed the signature on the said cheque in question. Under such circumstance, there is a legal presumption available in favour of the complainant and the accused has failed to rebut the said presumption under Section 139 of N.I. Act. The Trial Court having considered the oral and documentary evidence, has held that the complainant succeed in proving issuance of cheque in his favour and that the accused failed to rebut the presumption. It is also observed that the complainant has proved that the accused borrowed Rs.1,30,000/- from him and issued cheque/Ex.P-1 to discharge the said debt. Though the legal notice was issued to the accused, which was served, despite of that the accused has not repaid the cheque amount.
11. The appellate court having re-appreciated the evidence and material on record has also taken into consideration the contention of the accused wherein he has contended that he had already repaid the entire loan amount, on the other hand, failed to produce any document in that regard. Once the accused having admitted the signature on the cheque and borrowal of the loan, the burden is shifted upon him to rebut the presumption which is available in favour of the complainant. Both the courts have considered the oral and documentary evidence on record and has come to the conclusion that the complainant has established his case against the accused. The Appellate court had modified the sentence imposed on the accused and has reduced fine amount from Rs.2,05,000/- to Rs.1,50,000/-. There is no merit in the present revision petition.
12. Accordingly, the petition is dismissed.
Snc Sd/- JUDGE