THE COMMISSIONER OF INCOME TAX vs. M/S IBM INDIA PVT LTD

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NC: 2023:KHC:28088 CRL.RP No. 441 of 2015

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF AUGUST, 2023 BEFORE THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL REVISION PETITION NO. 441 OF 2015

BETWEEN:

AND:

SRI. CHETAN S. NAIK, S/O S. P. NAIK, AGED ABOUT 40 YEARS, NO.68, PURUSH, II MAIN, III CROSS,

Digitally signed by RENUKAMBA K G Location: High Court of Karnataka

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NC: 2023:KHC:28088 CRL.RP No. 441 of 2015

VINAYAKA LAYOUT,VIJAYANAGAR, BENGALURU-560 040. …RESPONDENT (BY SMT. B.P. RADHA, ADVOCATE FOR SRI. D. NAGARAJ, ADVOCATE)

THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 10.4.2015 PASSED BY THE LIX ADDL. CITY CIVIL AND S.J., BENGALURU CITY IN CRL.A.NO.548/2014 AND THE ORDER OF CONVICTION, SENTENCE AND FINE DATED 7.5.2014 PASSED BY THE 23RD A.C.M.M., BENGALURU IN C.C.NO.259/2010. THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER This petition is filed by the accused challenging the judgment of conviction and order of sentence passed by XXIII ACMM, Bangalore, in CC.No.259/2010 dated 07.05.2014 convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’) and confirmed by LIX Additional City Civil & Sessions Judge, Bangalore in Crl.A.No.548/2014. 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

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NC: 2023:KHC:28088 CRL.RP No. 441 of 2015

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NC: 2023:KHC:28088 CRL.RP No. 441 of 2015

complainant was examined as PW1 and he placed reliance on thirteen documents marked at Exs.P1 to P13. After conclusion of the evidence of the complainant, the statement of accused under Section 313 Cr.P.C. is recorded to enable him to explain the incriminating evidence appeared against them in the case of prosecution. The case of accused is of total denial. He has also deposed as DW1 but did not produce any documentary evidence in support of his defense. 5. Having heard the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of the NI Act and imposed a fine of Rs.4,50,000/- with a default clause. Being aggrieved by this judgment of conviction, the accused filed appeal in Crl.A.No.548/2014 before LIX Additional City Civil and Sessions Judge, Bangalore and the learned Sessions Judge after re-appreciating the oral and documentary evidence, has dismissed the appeal.

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NC: 2023:KHC:28088 CRL.RP No. 441 of 2015

Being aggrieved by these concurrent findings, this revision is filed. 6. Heard the arguments advanced by the learned counsel for the revision petitioner and learned counsel for the respondent. Perused the records. 7. The learned counsel for the petitioner would contend that there is no legally enforceable debt so as to enforce the liability. It is contended that cheque was manipulated by inserting the date in order to have an illegal gain. He would further contend that there was no transaction between the complainant and accused and hence, he would dispute the claim and assert that both the Courts below have failed to appreciate this aspect. 8. Per contra, learned counsel for the respondent would support the judgment of conviction and order of sentence passed by the trial Court. He would contend that legal notice has been issued and served on the accused, but accused did not respond and now he is taking an

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untenable defense. He would also assert that the signature of the complainant on the cheque is admitted and hence, the initial presumption under Section 139 of the NI Act is in favour of the complainant, which is not rebutted. Hence, he would seek for dismissal of the revision petition. 9. Having heard the arguments and perusing the records, now the following point would arise for my consideration: ““Whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the first appellate Court are perverse, erroneous and arbitrary so as to call for any interference by this Court?” 10. It is the specific contention of the complainant that he has invested a sum of Rs.3,00,000/- with accused and accused has agreed to pay interest at the rate of 18% p.a., and in discharge for the same, this cheque came to be issued. The accused has not denied his signature on Ex.P.1 and further, he has admitted that cheque belongs

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NC: 2023:KHC:28088 CRL.RP No. 441 of 2015

to him. There is no explanation from accused as to how this cheque went to the custody of the complainant. 11. The complainant is examined as PW1 and in his evidence, he has reiterated the complaint allegations. Ex.P1 is the original cheque. Ex.P12 is a material document which is a receipt for having deposited the amount and Ex.P11 is the letter issued by the accused admitting that there is an investment. That being the case, now question of accused disputing the liability does not arise at all. Ex.P11 & P12 clearly disclose that the cheque issued was a legally enforceable debt. Further this aspect is consolidated by the presumption under Section 139 of the NI Act and burden is on the accused to rebut the same. But except formal denial, the accused has not lead any evidence to substantiate his defense. 12. The other contention raised by the accused is regarding non-service of notice. But, however Ex.P8 discloses that the notice to one addressee is served and it is not the case of the accused that he was never residing

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at the said address. The notice was issued to his last known address and that is a proper service. 13. The other argument is regarding this amount is not being shown in income tax returns, but this is an investment in company/firm and that is not a ground to discard the claim of the complainant. Apart from that, the accused under Exs.P11 and P12 itself admitted this investment and hence, the said ground cannot be accepted as the trial Court as well as first appellate Court elaborately discussed this aspect and rightly rejected the said contention. 14. The oral and documentary evidence clearly establish that the cheque was issued towards legally enforceable debt. Both the Courts below have appreciated the oral and documentary evidence in proper perspective and have rightly convicted the accused. No illegality or perversity is found with the order of conviction so as to call for any interference.

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NC: 2023:KHC:28088 CRL.RP No. 441 of 2015

Sd/- JUDGE

DS List No.: 1 Sl No.: 31