IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.663/2015 BETWEEN:
Sri Giriyappa S/o Sri Thimmaiah Aged about 54 years, R/at Chandrappa Circle Chinchannaguppe village & Post Tavarekere Hobli Bengaluru South Taluk Bengaluru – 562 130 (By Sri Somashekara K.M. for C.R.Gopalaswamy & Assts., Advocate) AND:
Sri T.V.Manjunath Shetty S/o Sri T. Venkataswamy Shetty Aged about 47 years R/at No.78/5, 2nd Cross 5th Main, Govindarajanagara Bengaluru – 560 040.
(By Sri. Murthy D Naik for Sri H. Pavana Chandra Shetty, Advocate) ...Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 read with Section 401 of Criminal Procedure Code praying to set aside the judgment of conviction and sentence dated 29.09.2012 passed by the XVI A.C.M.M., Bengaluru City in C.C.No.1105/2010 and the Judgment dated 28.02.2014 passed by the P.O., FTC-VIII, Bengaluru City in Crl.A.No.650/2012 and thereby acquit the accused/revision petitioner from the charges leveled against him.
This Criminal Revision Petition coming on for admission, this day, the Court made the following:
O R D E R The present revision petition has been filed by the petitioner/accused challenging the judgment of conviction and order of sentence passed by XVI Additional Chief Metropolitan Magistrate, Bangalore City in C.C.No.1105/2010 dated 29.09.2012 which was confirmed by Presiding Officer, Fast Track Court-VIII, Bengaluru City in Criminal Appeal No.650/2012 dated 28.02.2014.
2. I have heard the learned counsel for the petitioners/accused and the learned High Court Government Pleader for respondent-State.
3. Though this petition is posted for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
4. Before going to consider the submissions of the learned counsel appearing for the parties, the case of the complainant before the Court below is that the complainant and the accused were acquainted with each other and during the third week of September 2008, accused borrowed a sum of Rs.2,00,000/- from the complainant as hand loan to meet his financial contingencies and thereafter, he did not pay the said amount and as such he issued a cheque for a sum of Rs.2,00,000/- and when the same was presented for encashment, it was returned as dishonored stating the reason as ‘funds insufficient’. The complainant got issued the legal notice demanding the said amount and the said notice was served upon the accused and within the stipulated period the accused did not pay the said amount and as such, he has filed the private complaint. After filing the private complaint, accused was summoned and after framing the charge, the complainant got examined himself as P.W.1 and got marked Exhibits P1 to P7 and thereafter, accused came to be examined as D.W.1 and got marked Exs.D1 to D7. After hearing the learned counsel appearing for the parties, the trial Court convicted the accused and against the said order, the accused/petitioner preferred the appeal. The appeal was also dismissed by confirming the trial Court order.
5. It is the submission of the learned counsel for the petitioner that the Court below without considering the material placed on record have come to a wrong conclusion and have convicted the accused/petitioner. He further submitted that the learned trial Judge simply brushed aside the defense put forth by the accused and has come to a wrong conclusion. He further submitted that there was a dispute in respect of some amount and because of the said transaction, three cheques have been issued and subsequently, in two weeks the matter has been compromised, but the respondent/complainant used one of such cheques. He further submitted that there was no recoverable debt as the said cheque has been given as a security purpose of Jeera business, which was being carried out by the accused along with the complainant. He further submitted that the accused has produced Exs.D6 and D7 which would go to show that balance amount which was paid is only Rs.1,00,000/- but the complainant has claimed a sum of Rs.2,00,000/- which is not considered by the trial Court. He further submitted that in the complaint he has not mentioned that there is any recoverable debt to the tune of Rs.6,65,000/-. Inspite of all these materials, the Court below have wrongly come to a conclusion and convicted the accused. On these grounds, he prayed to allow the petition and set aside the impugned orders.
6. Per contra, the learned proxy counsel appearing on behalf of counsel for complainant by justifying the judgment passed by the Court below further submitted that the trial Court, after considering the facts and materials, have come to a right conclusion. The petitioner/accused has not made out any good grounds to interfere with the order of the trial Court. He further submitted that by relying upon the decision of Hon’ble Apex Court in the case of BIR SINGH V/S MUKESH KUMAR reported in LAWS (SC) 2019 2 45, submitted that unless the accused adduces the evidence to rebut the presumption, the Court can draw a presumption that the cheque is otherwise valid and there is recoverable debt and the provisions of Section 138 would be attracted. On these, grounds he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
8. As could be seen from the records, the issuance of the cheque by the accused/petitioners is not in dispute. It is the contention of the learned counsel for the petitioner/accused that he has issued three cheques in respect of the business transaction and he has misused the said cheque. But as could be seen from the records, in respect of two other cheques, two cases have been filed and the said cases have been tried and subsequently they have been compromised. If really the said cheque have been issued only for the purpose of business transaction, under such circumstances, there was no question of filing a case and compromising the said matters along with complainant. Be that as it may, the accused has further taken up the contention that he has issued these three cheques for the purpose of Jeera business. Under such circumstances, presumption should be drawn as contemplated under Sections 139 and 118 of Negotiable Instrument Act and the accused/petitioner has to rebut the said presumption. In order to substantiate the said fact, he has not led any evidence. No doubt, I am of the considered opinion that the presumption can be rebutted on preponderances of probability either during the course of cross examination either by eliciting from the mouth of the complainant or by leading any other evidence by the accused/petitioner. But in the instance case on hand, no such presumption has been rebutted. The signature on the cheque Ex.D1, if it is admitted and if he takes such defense and if he fails, under such circumstances, the accused has to face the conviction. As could be seen from the records the accused/petitioner has taken an inconsistent stand. At one stretch, he says that three cheques have been issued for the purpose of Jeera business and in that, one cheque has been misused; but at the same time he also submits that two matters have been compromised and only one matter which has remained, is the one which is pending before this court. He further contended that the balance payable is only Rs.1,00,000/- and that the complainant has claimed Rs.2,00,000/-. Here also an inconsistent stand is taken up by the accused and even the accused has also not proved that he has paid Rs.1,00,000/- to the complainant. Under the said facts and circumstances, the contentions taken up by the learned counsel for the petitioner/accused is not acceptable in law.
9. I have carefully and cautiously gone through the judgments of the first Appellate Court as well as the trial Court. Both the Courts after considering the matter placed on record and evidence, have come to a right conclusion. They do not require any interference. In that light, the petitioner/accused has not made out any good grounds to interfere with the order passed by the Court below.
The revision petition being devoid of merits, the same is liable to be dismissed. Accordingly, it is dismissed.
GJM Sd/- JUDGE