IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.815 OF 2017 BETWEEN:
V. Devraj, S/o. Vishwanathaiah Shetty, Aged about 45 years, Working as Labour in Hotel, Resident of Near Railway Station Road, Beside Avulakittana House, Gadvalpet, Chintamani City, Chickballapur District -563125. …Petitioner (By Sri. H.K. Amaranath, Advocate for Sri. N. Amaresh, Advocate) AND Sri. Venkataramanappa, S/o. Late Thimmaiah, Aged 45 years, Working as money lender, R/at Behind Hero Honda Show room, Chintamani City, Chickballapur District -563125. …Respondent (By Sri. S.M. Babu, Advocate) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C. praying to set aside the judgment and order dated 29.06.2017 passed in Crl.A.No.79/2016 passed by the II Additional District and Sessions Judge, Chikkaballapur, (Sitting at Chintamani) confirming the judgment and order dated 02.04.2016 in C.C. No.604/2013 passed by the Principal Civil Judge and J.M.F.C. Chintamani.
This Criminal Revision Petition coming on for hearing on I.A. this day, the Court made the following:
ORDER This revision petition has been filed by the petitioner/accused challenging the legality and correctness of the judgment passed by the II Additional District and Sessions Judge, Chikkaballapura sitting at Chintamani in Crl.A.No.79/2016 dated 29.06.2017 wherein criminal appeal came to be dismissed by confirming the order of Principal Civil Judge and JMFC Chintamani in CC. No.604/2013 dated 02.04.2016.
2. I have heard the learned counsel for the petitioner/accused and the learned counsel for the respondent/complainant. Though this case is listed for hearing on Interlocutory Application, with the consent of the learned counsel appearing for the parties, same is taken up for final disposal.
3. The factual matrix of the case as per the case of the complainant are that the complainant and accused were acquainted with each other and were good friends. Accused requested the complainant to advance a loan of Rs.2.70 lakhs (Rupees Two Lakhs Seventy Thousand Only) for his family and legal necessities. Accordingly, complainant paid the amount on 25.08.2012. Accused assured the repayment within three months but he did not pay the same in spite of repeated requests. Finally accused issued a cheque dated 23.12.2012 drawn on State Bank of Mysore, Chintamani. When the said cheque was presented through the banker of the complainant on 24.12.2012, same was returned with shara “insufficient funds” on 26.12.2012. The complainant got issued legal notice to the accused on 01.01.2013 and the said notice returned with the endorsement that the ‘accused remained absent, the intimation was given and it was not claimed’.
4. Thereafter a complaint was filed by the complainant. The learned Magistrate took cognizance and secured the presence of the accused. Thereafter, the plea of the accused was recorded and case was posted for evidence. Complainant in order to prove his case he examined himself as PW-1 and got marked seven documents. Further the statement of the accused was recorded under Section 313 of Cr.P.C. Thereafter accused got examined himself as DW-1 and did not got marked any documents. After hearing the learned counsel appearing for the parties, trail Court convicted the accused. Being aggrieved by the same he preferred an appeal and the appeal came to be dismissed.
5. The main ground urged by the learned counsel for the petitioner/accused is that the trial Court as well as First Appellate Court have failed to appreciate the facts and circumstances involved in the said case. It is his further submission that legal notice has not been actually served on the petitioner accused. Only on that ground the trial Court and the First appellate Court ought to have dismissed the appeal. It is his further submission that there was no legal necessity as pointed out by the complainant and he has not paid any amount. Though there was no any legally recoverable debt, the Courts below have wrongly convicted the accused. It is his further submission that the complainant by using the innocence of the accused, he took the bank passbook and cheque book and later he misused them by filling the same. On these grounds he prayed that the Court below have neglected the said facts and circumstances and he requested to allow the petition and to set aside the impugned order and acquit the accused.
6. Per contra, the learned counsel appearing on behalf of the respondent/complainant vehemently argued and submitted that the accused/petitioner has taken a hand loan of Rs.2.70 lakhs (Rupees Two Lakhs Seventy Thousand Only) on 25.08.2012 and complainant has complied all the provisions of law under Section 138 of the Negotiable Instruments Act (hereinafter called in short as ‘NI Act’). Accused got examined himself as DW-1. In his cross examination he admitted that there is a liability and he has taken up a specific contention that the said account was got opened by the complainant in his name and he has used the cheque book which has been given at that time. In order to substantiate the said fact nothing has been elicited during the course of cross examination of PW1. When once the complainant establishes the fact that legally recoverable debt and the accused has issued the said cheque for discharge of the said loan, then under such circumstances the Court is duty bound to draw the presumption under Section 139 of NI Act. Trial Court as well as First Appellate Court have drawn the presumption and the accused has not rebutted the said presumption drawn in favour of the complainant/respondent.
7. Further he submitted that the accused/petitioner though contended that no notice has been served on him but the documents at Ex.P3, P4 and P5 clearly go to show that the notice has been issued to the petitioner/accused to the address where the accused is residing and even the Court summons have also been served to the same address and he has appeared before the Court. The said cover sent to the said same address and has been returned with the postal shara that ‘the said cover has not been claimed by the addressee’, that itself goes to show that the said notice has been served on the petitioner/accused. He further submitted that the trial Court as well as First Appellate Court have tried considering the evidence and have rightly considered the case. There are no good grounds to interfere with the orders of the trial Court and First Appellate Court. On these grounds he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including LCR.
9. It is the specific case of the respondent/complainant that accused has borrowed a sum of Rs.2,70,000/- (Rupees Two Lakhs Seventy Thousand Only) on 25.08.2012 and in discharge of the said debt he has issued the cheque dated 22.12.2012 and when it is presented on 24.12.2012 was returned as ‘insufficient funds’ on 26.12.2012. He got issued a legal notice on 11.01.2013 and the said notice has been returned with the shara ‘intimation given, not claimed’. After service of notice, the amount claimed under the notice has not been paid and as such complaint has been filed. When once the complainant establishes the ingredients under Section 138 of NI Act, then the Court has to see whether there was any legally recoverable debt or liability is there or not by drawing the presumption under Section 139 of NI Act.
10. On close reading of the evidence of DW1, though he has contended that the said complainant has got opened the account in State Bank of Mysore and thereafter he has kept the cheque book with himself and he made him to credit Rs.25,000/- to the said account and after two days obtained the said amount from him, the accused has not asked for the said cheque and the same has been misused. During the course of cross examination he has admitted the fact that Ex.P1 cheque pertains to him and there was a transaction between him and the complainant and he is liable to pay the amount under the cheque. In this regard a compromise has also been entered into between the parties. As per the said compromise he has to pay Rs.4,75,000/- (Rupees Four Lakhs Seventy Five Thousand Only) to the accused.
11. All these aspects clearly go to show that there was some financial transaction between the accused and the complainant. When the said fact has been established, then the Court has to draw a presumption as contemplated under Section 139 of the NI Act. Under such circumstances the Court below is duty bound to draw a presumption under Section 139 of Negotiable Instruments Act that there exists a legally enforceable debt or liability. This is of course in the nature of rebuttable presumption and it is open to the accused to raise a defence wherein existence of enforceable debt and liability can be contested. Keeping in view of the above said facts and circumstances on seeing the proposition of law which has been laid down by the Hon’ble Apex Court in the case of Rangappa Vs. Srimohan reported in (2010) 11 SCC 441 vide para 26 it has been observed as under:
“26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observation in Krishna Janardhan Bhat case reported in (2008) 4 SCC 54: (2008) 2 SCC (Cri) 166 may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, 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. However, there can be no doubt that there is an initial presumption which favours the complainant.”
12. Keeping in view of the above said presumption and the ratio laid down in the above decision, if the cross examination of PW1 accused is seen, he has clearly admitted that there existed a legally enforceable debt or liability. Though it is contended by the accused that the account in respect of Ex.P1 cheque belongs to the account of accused and the cheque book and pass book was kept at home and after getting same signed by the accused, it was misused by the complainant. In order to substantiate the said fact no other material has been produced and the said presumption has remained as presumption when there being any rebuttal. Mere denial without there being no any rebuttal, the case of the accused cannot be accepted. Taking from any angle petitioner/accused has not made out any good grounds so as to interfere with the orders of First Appellate Court and Trial Court.
Keeping in view the above said facts and circumstances, the revision petition is devoid of merits and the same is liable to be dismissed. Accordingly, the revision petition is dismissed.
Registry is directed to send back the lower Court records.
As the main petition is dismissed, I.A.Nos. 1/2019 and 2/2019 do not survive for consideration. Accordingly, the same are disposed of.
Sd/- JUDGE BVK