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NC: 2023:KHC:33473 CRL.RP No. 126 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF SEPTEMBER, 2023 BEFORE THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL REVISION PETITION NO. 126 OF 2016
BETWEEN:
C.R. ANAND KUMAR, S/O. C.G. RAMA RAO , AGED ABOUT 51 YEARS, R/AT NO.14/1, GOVINDAPPA ROAD, R.S. PALYA, KAMMANAHALLI MAIN ROAD, (SUDHARSHAN ENCLAVE G-1) BANGALORE-560 033. …PETITIONER (BY MISS. ARCHANA .K.M, AMICUS CURIAE) AND:
M. GAUTHAM CHAD, S/O. SRI. MOTIALA CHAND, AGED ABOUT 51 YEARS, R/AT NO.245/1, R.T. STREET, BANGALORE-560 053. …RESPONDENT
(BY MISS. MELANIE SEBASTRAN, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE PASSED BY XV A.C.M.M., BANGALORE IN C.C.NO.12202/2009 DATED 26.07.2014 AND WHICH WAS CONFIRMED BY LXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-69) IN CRL.A.NO.919/2014 DATED 29.12.2015 IN THE CIRCUMSTANCES OF THE CASE.
THIS PETITION COMING ON FOR DICTATING ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
Digitally signed by RENUKAMBA K G Location: HIGH COURT OF KARNATAKA
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ORDER
This revision is filed by the accused/revision petitioner under Section 397 r/w 401 of Cr.P.C. challenging the judgment of conviction and order of sentence passed by XV Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.12202/2009, dated 26.07.2014 and confirmed by the LXVIII Additional City Civil & Sessions Judge, Bangalore, in Crl.A.No.919/2014, dated 29.12.2015. 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.
The brief factual matrix leading to the case are as under:
The accused has obtained a loan of Rs.10,00,000/- from complainant and executed on demand promissory note, agreeing to repay the loan amount in four months. However, he has failed to fulfill his demand and upon persistent request made by the complainant, accused has
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issued a cheque for Rs.5,00,000/- dated 10.02.2009 drawn on Corporation Bank, Banaswadi Branch, Bangalore. It is further asserted that when the complainant has presented the said cheque, it was returned for “funds insufficient” and immediately, he has issued a legal notice to the accused. But there is no response and cheque amount was not paid. Hence, he lodged a complaint against the accused. 4. On the basis of the complaint, learned Magistrate has taken cognizance of the offence and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. The plea under Section 138 of the N.I. Act is framed against the accused and same is read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the complainant has got examined himself as PW1 and placed reliance on twenty one documents marked at Ex.P1 to Ex.P21.
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Thereafter, statement of accused under Section 313 Cr.P.C. was recorded to enable him to explain the incriminating evidence appearing against him in the case of the complainant. The case of accused is of total denial. The accused has got examined himself as DW1 and placed reliance on two documents marked at Ex.D1 & Ex.D2.
After having heard the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused by sentencing him to pay a fine of Rs.5,10,000/- with default sentence. Against this judgment of conviction and order of sentence, the accused approached LXVIII Additional Civil and Sessions Judge, Bangalore, in Crl.A.No.919/2014.
The learned Sessions Judge after re- appreciating the oral and documentary evidence, dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate.
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Being aggrieved by these concurrent findings, the accused is before this Court by way of this revision.
Initially the accused was represented by his counsel and subsequently, since there is no representation on behalf of counsel for revision petitioner, amicus curiae is appointed.
Heard the arguments advanced by the learned amicus curiae for the revision petitioner/accused and learned counsel for the respondent/complainant. Perused the records.
The main contention of the learned amicus curiae is that the complainant in his complaint nowhere pleaded when exactly the loan was advanced. A simple pleading regarding issuance of cheque by executing a promissory note on 05.7.2008 towards the availment of loan of Rs.10,00,000/-. He would also assert that the complainant was doing chit fund business illegally and obtained the cheques which were being now misused. It is further asserted that the financial capacity of the
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complainant to advance a huge loan of Rs.10,00,000/- itself was disputed and no proper reliable documents are produced to show that the complainant was capable of paying the amount. Hence, he would contend that the presumption in favour of the complainant cannot be drawn and the cross-examination reveals that the complainant is indulged in money lending business and hence, she asserted that both the courts below have failed to appreciate this aspect, which has resulted in miscarriage of justice.
Per contra, learned counsel for the respondent would contend that the promissory note was executed on 05.07.2008 and day books are also produced to show that amount was paid from the account of the shop. It is also asserted that admission that the cheque was given in February 2009 is not disputed and regarding financial status, Ex.P14 is produced, which disclose that the complainant was financially sound. Hence, she would seek for dismissal of the revision.
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Having heard the arguments and after appreciating the oral and documentary evidence, 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 appellate Court are perverse, erroneous and arbitrary so as to call for any interference by this Court?”
It is the specific contention of the complainant that towards the legally dischargeable debt of Rs.10,00,000/-, the accused has issued the cheque under Ex.P1. The cheque is dated 10.02.2009. The promissory note is relied on at Ex.P1 and ExP2, but it is dated 05.07.2008. In the complaint, complainant nowhere asserted as to when the loan was advanced. The entire complaint as well as evidence is silent in this regard. Further, there is no specific pleadings as to what is the amount advanced.
The complainant is examined as PW1 and in his examination-in-chief, he has reiterated the complaint
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allegations. However, again, he did not whisper the date of advancement of the loan. It is hard to accept the contention that the complainant is unable to recollect the date when such a huge amount was advanced. Further, it is not the case of the complainant that accused is closely acquainted with him. All along, it is argued that accused is a customer of the complainant and therefore, the loan was advanced. The complainant is running a jewellery shop and he admitted that he is not doing money-lending business and he does not have any license in this regard. In that event, without close acquaintance, he cannot advance such a huge loan of Rs.10,00,000/-.
The complainant in his further cross- examination, specifically asserted that he paid the amount available in his shop. The complainant is running a jewellery shop. He did not produce any documents to show that he was possessing Rs.10,00,000/- in his shop on that day. He claims that he is running Gautham Jewellery and though it is asserted that the day books were produced,
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they were not tendered in evidence so as to permit the accused to cross-examine all those documents. A suggestion was made to the complainant that he is running a chit business and accused was a member and towards the bid, he used to take advance cheques, which are being misused. The complainant has denied the said suggestion. All along, complainant claims that he is financially sound, in this regard Ex.P14 is relied. But Ex.P14 is auditor’s report and it does not establish that it is certified by the auditor. Even the author of these documents is not examined. Hence, in the absence of examination of the author, no importance can be given to Ex.P14 to prove that the complainant was having sufficient means. 17. Ex.D2 is relied by the accused wherein there is reference of the complainant giving an acknowledgment for having undertaken to return five cheques belonging to accused and his wife, if he pays Rs.2,50,000/- due towards chit. This is the exact defence taken by the
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accused. Though the complainant has disputed his signature on Ex.D2 which is marked at Ex.D2(a), but on comparison of his admitted signatures under Section 73, it is evident that they are one and the same. Even in the income tax returns, the complainant has not shown the advancement of the loan to the accused and though Ex.P14 is relied, as observed above, the author of Ex.P14 was not examined. 18. Further, in the cross-examination, accused has admitted that he has advanced loan to other four persons and totally Rs.20,00,000/- was advanced. He also admits that he has filed a cheque bounce case against Harish Gagnani for Rs.8,00,000/-, against his wife he has field five cases. This discloses that the complainant is illegally doing financial transactions. Though a on demand promissory note is relied, it does not establish that on the date of advancement of the loan, this document was executed, as there is no pleading as to when the loan was advanced. The complaint is completely silent in this regard
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and when the financial capacity of complainant itself is disputed, it is the duty of the complainant to establish his financial status and no doubt he is running a jewellery shop. But he did not possess any license for money lending business. His admission regarding filling number of cheque bounce cases and advancement of loans to number of persons discloses that he is doing money- lending business illegally. Under such circumstances, it cannot be said that the amount under the cheque is a legally enforceable debt.
The learned amicus curiae has placed reliance on a decision reported in AIR 2023 SC 471 [RAJARAM SRIRAMULU NAIDU (SINCE DECEASED) THROUGH L.Rs. v MARUTHACHALAM (SINCE DECEASED) THROUGH L.Rs.]. In the instant case also the income tax returns did not disclose that complainant has disclosed the lending of the amount to accused and other various persons. It is also evident that the income declared in the income tax is not sufficient to draw a presumption regarding complainant is
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capable of advancing of loan. Hence, presumption in favor of the complainant stands rebutted.
The learned amicus curiae has also placed reliance on a decision reported in 1997 Crl.Law 833 [RATTAN SINGH v. STATE OF HIMACHAL PRADESH]. But no defence was set up regarding non-putting of material questions for complainant in cross-examination. However, accused himself has lead his defence evidence and hence, the principles enunciated in the above cited decision would not assist the revision petitioner in any way. He has also relied decision of the Karnataka High Court reported in Crl.P.No.2170/2021 [SMT. MEENAKSHI & ANOTHER v. STATE OF KARNATAKA].
The learned amicus curiae further placed reliance on the decision of the Apex Court reported in Crl.A.No.362/2022 (arising out of SLP No.(Crl)1963/2019) [TEDHI SINGH v. NARAYAN DASS MAHANT]. In the said decision, the Hon’ble Apex Court relying on the observations made in Basalingappa’s case
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reported in (2019) 5SCC 418 has held that presumption under Section 139 is rebuttalbe presumption and onus is on the accused to raise probable defence. It is further observed that standard of proof for rebutting the presumption is that of preponderance of probability. In the instant case, the accused by cross-examining the complainant and also by producing Ex.D2 has established that complainant has no financial capacity to advance the loan and complainant is doing illegal chit business and cheque was issued towards the chit transaction. The accused has demonstrated his defence by way of cross- examination and hence, in view of the principles enunciated in the above cited decision the presumption is deemed to have been rebutted.
The learned counsel for the respondent has placed reliance on a decision reported in ILR 2004 KAR 4505 [V.SATYANARAYANA v. M/S SANDEEP ENTERPRISES]. But in the said case, the Division Bench of this Court has held that money lending must be carried on
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as a profession and if money lending was not done with a profit motive or not carried as a profession, it does not become money-lending under Money Lenders Act. But the said principles would not come to the aid of the complainant to the facts and circumstances in the case in hand, as the conduct of the complainant itself discloses that he has initiated prosecution of number of cases under Section 138 of the N.I. Act against various persons, which disclose that he is either doing money lending business or running a chit fund transaction illegally and under such circumstances, the debt cannot be said to be a legally enforceable debt. The learned counsel for the respondent further placed reliance on a decision reported in (2018) 13 SCC 663 [N.HARIHARA KRISHNAN v. J.THOMAS]. But the facts and circumstances are entirely different and though in the complaint, the ingredients are not specifically mentioned, but subsequent conduct of the complainant also creates doubt regarding his transaction. Further, accused is required to prove his defence only on the basis of preponderance of probability. Considering the facts and
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circumstances of the present case, the principles enunciated in the above cited decision will not assist the learned counsel for the respondent in any way. 23. The oral and documentary evidence clearly establishes that the accused has failed to prove that the cheque under question was issued towards a legally enforceable debt. On the contrary, defence raised by the accused in this regard appears to be more probable. There is no proper explanation from complainant regarding his financial status and illegally carrying financial transactions.
Ex.D2 is also not properly explained and the financial status of the complainant is also not established. Under such circumstances, the question of accused paying Rs.10,00,000/- and getting a cheque for Rs.5,00,000/- towards legally enforceable debt does not arise at all. Both the Courts below have failed to appreciate the oral and documentary evidence in proper perspective and in a mechanical way, convicted the accused only on the ground that cheque belongs to the accused and it bears his
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signature. But the admission, the financial status of the complainant and other documents were not at all appreciated and hence, both the Courts below have committed an error in convicting the accused for the offence under Section 138 of the N.I. Act. The judgment of conviction and order of sentence passed by both the Courts below are erroneous and arbitrary, which has resulted in miscarriage of justice. Hence, the judgments of conviction and order of sentence call for interference by this Court. Considering these facts & circumstances, the point under consideration is answered in the affirmative and accordingly, I proceed to pass the following: ORDER (i) The revision petition is allowed. (ii) The judgment of conviction and order of sentence passed by XV Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.12202/2009, dated 26.07.2014 and confirmed by the LXVIII Additional City Civil and Sessions Judge, Bangalore, in
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Crl.A.No.919/2014, dated 29.12.2015, are set aside. (iii) Accused stands acquitted for offence under Section 138 of N.I.Act. (iv) Bail bond executed by accused/revision petitioner stands cancelled. (v) The amount deposited by accused/revision petitioner in courts shall be refunded to him.
Sd/- JUDGE
DS List No.: 1 Sl No.: 12