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.235/2015 BETWEEN:
SRI NAYAZ S/O LATE BASHA, AGE 40 YEARS, R/AT OLD NO.266, NEW NO.39/1, 4TH MAIN ROAD, 4TH CROSS, RAMACHANDRAPURAM, BANGALORE-560021 ... PETITIONER [BY SRI N.SURESHA, ADV. – ABSENT.] AND:
K.NAGARAJ S/O LATE D.KRISHNAMURTHY, AGED ABOUT 41 YEARS, R/AT OLD NO.27, NEW NO.118, 3RD MAIN ROAD, RAMACHANDRAPURAM, BENGALURU-560010. …RESPONDENT [BY SRI V.B.SHIVAKUMAR, ADV.) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 04.02.2015 PASSED BY THE P.O., F.T.C.-XV, BANGALORE IN CRL.A.NO.667/2014 AND CONFIRMING THE JUDGMENT AND SENTENCE DATED 31.05.2014 PASSED BY THE XXI A.C.M.M., BANGALORE IN C.C.NO.33403/2010 BY ALLOWING THIS R.P.
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 Presiding Officer, F.T.C. – XV, Bangalore, in Crl.A.No.667/2014, dated 04.02.2015, whereunder the judgment of conviction and order of sentence passed by the XXI Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.33403/2010 was confirmed.
2. I have heard the learned counsel for the respondent – complainant.
3. Order sheet of this Court discloses that since 28.08.2017, there is no representation on behalf of the petitioner - accused. Today also, there is no representation. As the Criminal Revision Petition cannot be dismissed for default, the same is taken up on merits and disposed of by this order.
4. The brief facts of the case of the complainant before the Court below are that the accused was known to the complainant. He approached the complainant for a hand loan of Rs.2,00,000/- in the month of December, 2009 and agreed to pay interest at the rate of 18% per annum. The accused has also issued a cheque bearing No.680177 for a sum of Rs.2,00,000/- dated 15.12.2009 drawn on Punjab National Bank, Rajajinagar Branch, Bangalore. When the said cheque was presented on 01.03.2010, the cheque was returned as funds insufficient and it was communicated to the accused. At the request of the accused, the complainant once again re-presented the cheque for encashment. Then also the cheque was dishonoured with an endorsement on 12.03.2010 as “funds insufficient”. Subsequently, legal notice was issued on 01.04.2010 and the said notice was returned with postal shara as “refused”. Thereafter, as the amount has not been paid within the stipulated time, a complaint was registered under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as “the Act”).
5. In order to prove the case of the complainant, the complainant got himself examined as PW.1 and got marked Exs.P1 to P6. The accused got himself examined as DW.1 and examined two more witnesses as DWs.2 and 3 and got marked Exs.D1 and D2. After hearing the learned counsel appearing for the parties, the judgment of conviction and order of sentence came to be passed. Being aggrieved by the said judgment, the accused preferred an appeal before the Presiding Officer, F.T.C.- XV, Bangaore and the said appeal came to be dismissed.
6. The main grounds urged by the petitioner in his petition are that the Appellate Court after hearing the arguments hurriedly passed the judgment. The Appellate Court without giving opportunity to the petitioner, has blindly confirmed the order of the Trial Court. It is further stated that the respondent - complainant has not proved the transactions and he has also failed to prove that there was a debt or liability and because of the same, Ex.P1 – cheque has been issued. On these grounds, he prayed to allow the petition and to set aside the impugned orders.
7. Per contra, the learned counsel for the respondent – complainant vehemently argued and submitted that though the Criminal Appeal was filed in the year 2014, it has been disposed of in the month of February, 2015 by giving full opportunity to the petitioner – accused and his counsel. It is his further submission that there is concurrent finding of both the Courts below. It is further submitted that the defence of the accused is that he has taken the loan and as a security, he has issued cheque, but subsequently, the same amount has been returned. But, he utterly failed to prove that the said amount has been returned to the complainant though the accused has produced Exs.D1 and D2 that there is alteration in the name of the petitioner. After considering the said facts, the Courts below have rightly convicted the accused. Even DWs.2 and 3 have also not specifically stated that when and in what manner, the amount has been paid. It is his further submission that they are interested witnesses. DW.2 was working as a cleaner in tempo of accused and DW.3 is also the relative and driver of tempo. Under such circumstances, their evidence has not been accepted. There are no good grounds to the petitioner – accused. Hence, he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsel for the respondent and also perused the records.
9. As could be seen from the evidence and material placed on record, it goes to show that the petitioner – accused has admitted the fact of he being taking the loan from the complainant. But it is his specific case that at the time of taking loan, the complainant has obtained blank cheque and he has repaid Rs.48,000/-. Actually the amount taken is Rs.2,00,000/-, but the accused has contended that he has repaid only Rs.48,000/-. Be that as it may, even in order to substantiate the fact that he has paid the said amount, he got examined himself as DW.1 and two more witnesses as DWs.2 and 3. He has admitted during the course of cross-examination that he has performed the marriage of his sister during 2009-10 and at that time, he has taken the loan, but he has further deposed that he has paid the said amount. During the course of cross-examination, he admitted that he does not know who altered Ex.D1 by mentioning his name as “Nayaz” and he has also admitted that in Exs.D1 and D2, the year has been mentioned as 2011.
10. DW.2 has also deposed before the Court below that he knows the transactions between the accused and the complainant. He has deposed that in two installments i.e., in the first instance Rs.30,000/- and in the second instance Rs.60,000/- has been returned to the complainant. During the course of cross-examination he has admitted that he knows the complainant since more than ten years and accused is working as tempo driver and he was acquainted with him since more than ten to fifteen years. He has also further admitted that some amount has been paid but some amount was due and at the time of taking loan, a cheque has been issued, but it was a blank cheque. He has further deposed that the accused has taken only Rs.60,000/- as a loan and it has been paid.
11. DW.3 is another witness. He has also reiterated the evidence of DW.2 and in his cross- examination he has also admitted the fact that he is working as a driver and the accused informed him over the phone that it is a false case and on that basis , he has deposing before the court. He has also admitted that the name of other person was there on Ex.D1 and after erasing the earlier name, the name of “Nayaz” has been written. On going through the said evidence, the complainant has clearly stated in his evidence that the accused has borrowed a sum of Rs.2,00,000/- and that he has issued a cheque - Ex.P1 and when it was presented, the same was returned with an endorsement “funds insufficient”. Thereafter, the legal notice has been issued. The accused has not given any reply to the said legal notice. During the course of cross-examination, nothing has been elicited so as to discard the evidence of PW.1.
12. Be that as it may, the accused - petitioner admitted the fact that he has obtained a loan and he has taken up a specific defence that the complainant has obtained a blank cheque and thereafter he has filled up the same. He has returned and repaid a sum of Rs.48,000/-. Admittedly, the complainant has come up with a specific case that the accused has obtained a loan of Rs.2,00,00/- and the accused has made out a case that he has paid only Rs.48,000/-. But, if we peruse the evidence of DW.2, he has deposed before the Court below that the petitioner – accused has paid Rs.60,000/-. If the accused has paid the entire amount, he could have taken back the cheque – Ex.P1 and even he has not got issued any legal notice for return of the said cheque or he has not initiated the proceedings or filed complaint. Be that as it may, if really he has repaid the said amount, under such circumstances, after receipt of the notice issued by the complainant under Section 138 of the Act, he could have immediately replied, but he has not replied. Even he has produced Exs.D1 and D2. Ex.D1 is the passbook of Sri. Venkateshwara Finance. During the course of cross-examination, he has been confronted to DWs.1 and 2 that the name of “Nayaz” has been altered. The same fact has also been admitted and even the petitioner – accused has admitted the fact that he does not know who altered the name even he was in possession of the said passbook. He has to explain who actually altered the name of “Nayaz”. Even though he got examined DWs.2 and 3, their evidence is not going to substantiate his case that the entire loan amount which was due has been returned to the complainant.
13. When once the accused admits the signature on Ex.D1, under such circumstances, the Court is duty bound to draw a presumption under Section 139 of the Act that there exists a legally recoverable debt and the burden shifts upon the accused to rebut the said presumption with preponderance of probabilities. When the accused has taken up the said contention, if the evidence produced is not going to rebut the said presumption, then under such circumstances, the accused is liable to be convicted. 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 at para No.26 that the presumption mandated under Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested.
14. However, in this case there can be no doubt that there is a presumption which favours the complainant. When that presumption has been drawn there is no rebuttal evidence on preponderance of probabilities to accept the contention of the accused. Under such circumstances, I feel that the accused has not made out any good grounds to interfere with the order of the Trial Court. The orders of the Courts below deserve to be confirmed.
15. Taking into consideration the above facts and circumstances, the grounds urged are not acceptable. Though it is contended that the First Appellate Court has hurriedly passed the judgment, the records indicates that the appeal was preferred in the year 2014 and subsequently it was disposed of in the month of February, 2015. So far as other grounds are concerned, for the reasons discussed above, they cannot be acceptable.
16. Taking into consideration the above facts and circumstances, the Criminal Revision Petition is devoid of merit and the same is liable to be dismissed and accordingly, it is dismissed.
Sd/- JUDGE PMR.