IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.443 OF 2015 BETWEEN:
Sri S.Manjunatha S/o Shivaji Rao Aged about 63 years R/o of K.R.Nagar Yanthrapura Village Harihara Davanagere District. ...Petitioner (By Sri M.Chidanandakumar, Advocate-absent) AND:
Harihara House Building Co-operative Society Ltd., Bharath Oil Mill Compund Harihara By its Secretary, Sri B.V.Bandari S/o V.T.Bandari Aged about 58 years Harihara Davanagere District. ...Respondent (By Sri M. K. Bhaskaraiah, Adv.) This Criminal Revision Petition is filed under Section 397 of Code of Criminal Procedure praying to set aside the Judgment dated 03.11.2014 passed by the I Addl. District and Session Judge, Davanagere in Crl.A.No.86/2012 in confirming the judgment dated: 24.07.2012 passed by the Prl.C.J. and JMFC, Harihar in C.C.No.554/2003.
This Criminal Revision Petition coming on for Admission this day, the Court made the following:
O R D E R The present petition has been filed by the accused petitioner challenging the judgment passed by the I Addl. District and Sessions Judge at Davanagere in Criminal Appeal No.86/2012 dated 03.11.2014 wherein, the judgment of conviction and order of sentence passed by the Principal Civil Judge and JMFC, Harihara in C.C.No.554/2003 dated 24.07.2012 has been confirmed.
2. I have heard learned counsel for the petitioner-accused and learned HCGP for the respondent-Complainant.
3. Before going to consider the contentions of the petitioner, it is the case of the complainant that the complainant is a registered society under the provisions of Karnataka Co-operative Societies Act. Accused No.1 availed housing loan from the complainant-Society and thereafter, he become defaulter. An arbitration case was initiated in view of the arbitration clause and the arbitral award was also awarded in A.C.No.860/1993-
94 and subsequently, execution proceeding was initiated in Ex.No.5/1995-96. During the course of Execution award, auction proceeding took place. At that time, the accused petitioner issued a cheque dated 05.05.2003 for a sum of Rs.1,00,000/- in favour of the complainant Society towards discharge of the said liability in the Execution proceedings. Accused No.2 also signed the said cheque. When the said cheque was presented for encashment on 15.05.2003, it was dishonoured and again as per the request of the accused-petitioner, it was presented for encashment on 12.06.2003, again it was dishonoured and once again on 16.06.2003, when the cheque was presented, it was returned unpaid with endorsement dated 16.06.2003 as ‘Contents Extraneous’. Thereafter, legal notice was issued to the accused and after service of notice, accused did not make payment and thereafter a complaint was registered under Section 138 of Negotiable Instruments Act. In order to prove the case of the petitioner, the complainant got examined P.W.-1 and P.W.-2 and got marked Ex.P.1 to Ex.P.12 and after closure of the case of the complainant, the accused has not examined any witness but however, he got marked Ex.D.1- xerox copy of partnership deed and after hearing learned counsel appearing for the parties, the trial Court convicted the accused petitioner and sentenced him for simple imprisonment for a period of four months and directed to pay the compensation amount of Rs.1,05,000/- within six months and also default additional sentence.
4. Being aggrieved by the said judgment of conviction and order of sentence, the accused petitioner preferred Crl.Appeal No.86/2012 before the I Addl. District and Sessions Judge, Davanagere and after hearing the parties to proceedings, by order dated 03.11.2014, the appeal was came to be dismissed. Challenging the same, the accused petitioner is before this Court.
5. It is the submission of learned counsel for the petitioner that the cheque dated 08.05.2003 is not duly signed by the petitioner in favour of the respondent-Society and the cheque was taken from the wife of the accused petitioner, when the accused was not in home and the said cheques were kept in home for the business of the Shivashakthi enterprises. The petitioner and his son are the partners of the said enterprises which carries the business. He further submits that the trial Court without considering the said aspect, has passed the impugned order and the First Appellate Court has also come to the said conclusion. He further submitted that the said cheque has not been issued to clear the legally recoverable debt and as such the said proceedings ought to have been dismissed. He further submitted that the said cheque belong to the petitioner has been obtained before the police from the wife of the petitioner. Under such circumstances, the Court below ought not to have drawn presumption. Under these circumstances, he prays to allow the petition and to set aside the judgment of the First Appellate Court as well as the trial Court.
6. Per contra, learned counsel appearing for the respondents vehemently argued and submitted that the appellant has taken loan of Rs.1,00,000/- from the society, thereafter, he became defaulter and arbitration case was initiated in arbitration case No.860/1993-94 and execution petition was also filed and at that time, the said cheque has been issued by the accused. It is further submitted that the accused petitioner admits the signatures on the cheques. When it is admitted, presumption has to be drawn that the cheque has been issued for discharge of legally recoverable debts. Further, in order to substantiate the fact that the said cheque pertains to Shivashakthi Enterprises and his son is also a partner, neither the accused, nor his son had entered into the witness box. The trial Court after considering all these aspects, has rightly come to conclusion and rightly convicted the accused petitioner. The accused petitioner has not made out any good ground to interfere with the said judgment of conviction and order of sentence. Hence, same is liable to be confirmed. On these grounds he prays to dismiss the petition.
7. On close reading of the records, it is not in dispute that he has taken loan of Rs.1,00,000/- towards construction of house from the Society and arbitration case was also initiated in arbitration case No.860/1993-
94 and award was also passed. Thereafter, execution proceeding has been initiated in Ex.No.5/1995-96. It is the only contention of the accused that the said cheque dated 08.05.2003 is not duly issued by the petitioner to respondent-Society and the said cheque was taken by his wife when he was not in home. Even during the course of examination of complainant, the said signatures on Ex.P.1 have not been denied. Even as could be seen from the records, it is not in dispute that the said cheque is bearing signature of the accused petitioner. It is only contended that it is not duly issued by the petitioner in favour of respondent and the cheque has been taken by the respondent from the wife of the accused. It is well settled principles of law that when the complainant establishes the fact that Ex.P.1- the cheque bears the signature of the accused and it has been issued for the due to some recoverable debt, then, the Court has to presume that the said cheque has been issued for recoverable debt. As per Section 139 of N.I., Act when the said presumption has been drawn, then, the burden shifted to the accused to disprove the said presumption on preponderance of probabilities by leading cogent and acceptable evidence that the said cheque has not been issued for legally recoverable debt as contended by him and it was given as per his defence. As could be seen from the records, the accused petitioner has not lead any evidence either by himself or by examining his wife or son to substantiate the contention that the said cheque has been taken from the wife of the accused and also that the said cheque belongs to Shivashakthi enterprises where accused and his son are the partners. The contention has remained as contention without there being any proof. Even during the cross examination, if the said material/contention is brought before the Court, the Court would have been accepted would have been dismissed the complaint. Even as could be seen from the records and even during the cross examination of PW1, nothing has been elicited so as to substantiate the contention of the accused petitioner. When it is admitted by accused that the petitioner accused petitioner that he was due to the Society, then, under what context the said cheque has been issued is to be clearly verified by him alone. In the absence of any such material, it can be presumed that the accused petitioner has issued the cheque for the amount due to the Society. In that light the said contention taken up by the accused petitioner is not acceptable in law. Hence, the same is liable to be rejected.
8. I have carefully and cautiously gone through the judgments of the First Appellate Court and the trial Court. Both Courts, after considering all the materials placed on record, have come to right conclusion. There is no error or illegality and the said judgments are not erroneous and the same are liable to be confirmed. Hence, the petition is devoid of merits. Same is liable to be dismissed. Accordingly the petition is dismissed.
Sd/- JUDGE PN/-