THE COMMISSIONER OF INCOME-TAX LTU vs. M/S. KARNATAKA POWER TRANSMISSION CORPORATION LTD

Ms.Sharvari S. Bhatt, learned counsel appearing for Sree Harsha A.K., advocate for petitioner submitted, petition is by accused challenging concurrent findings convicting him for offence punishable under Section 138 of Negotiable Instruments Act, 1881 ('NI Act' for short). It was submitted, respondent (complainant) had filed complaint under Section 200 of Code of Criminal Procedure, 1973 ('CrPC' for short) alleging that accused was well known to complainant and borrowed Rs.1,20,000/- as hand loan promising to repay within 3 months and on demand, accused issued post dated cheque bearing no.092070 dated 15.11.2005 for Rs.1,20,000/- drawn on Davanagere-Harihar Urban Co-operative Bank, Davanagere, which when presented on 21.01.2006, returned with endorsement 'insufficient funds' and thereafter even when

It was submitted, on appearance, accused denied charges and sought trial, whereupon complainant examined himself and another as PWs.1 and PW.2 and got marked Exhibits P1 to P10.

Thereafter accused was appraised of incriminating material which he denied and his statement under Section 313 of CrPC was recorded. In rebuttal, accused examined himself and two others as DWs.1 to 3 and got marked Exhibits D1 to D14.

On consideration, trial Court convicted accused for offence punishable under Section 138 of NI Act and sentenced him to pay Rs.1,85,000/- to complainant and in default to undergo simple imprisonment for five months apart from fine of Rs.8,000/- and in default, to undergo simple imprisonment for

It was submitted, both impugned judgments were contrary to law and material on record. It was submitted, they failed to appreciate omissions and contradictions and conclusions were based on presumptions and surmises. It was submitted, accused had denied/disputed relationship of creditor and debtor and issuance of cheque towards legally enforceable debt. Even when complainant failed to produce any material for having lent money to accused, order of conviction would be without basis.

It was further submitted, complaint was defective as it was not preceded with service of demand notice on accused. It was submitted, accused had specifically contended that he was not residing at address mentioned in Ex.P6 - notice and had reiterated same in his deposition. Thus, both Courts erred in drawing presumption about service of notice. On above grounds, sought for allowing revision.

On other hand, Sri M Vinaya Keerthy, learned counsel for respondent opposed petition. It was submitted, both Courts on examination of material on record had arrived at well reasoned conclusion resulting in conviction of accused, which did not call for interference.

Heard learned counsel, perused impugned judgment and record.

From above, it is seen that this revision petition is by accused against concurrent findings convicting him for offence punishable under Section 138 of NI Act. Hon'ble Supreme Court in case of Amit Kapoor v. Ramesh Chander & Anr., reported in (2012) 9 SCC 460, has held scope for interference against concurrent findings would be normally confined to examining whether findings suffer from perversity or are contrary to provisions of law.

Insofar as contention urged about non-service of demand notice prior to filing of complaint, it is seen that complainant produced demand notice, acknowledgments for having sent by RPAD and certificate of posting as Exs.P5 to P7.

Insofar as contention about failure of complainant to produce any material to substantiate transactions, with accused, perusal of cross-examination of complainant on this aspect reveals, complainant has stated that he has landed properties yielding income and money was lent in presence of common acquaintance, who is also examined as PW.2. Deposition of PW.2 would support complainant. Merely on ground of admission elicited that complainant was not paying Income Tax, Sales Tax, etc. and not produced records to substantiate income from agriculture etc. would not be sufficient to upset presumption in favour of holder of cheque. It is also seen that PW.1 stated that he was earning Rs.60,000/-

Interestingly, one of grounds on which complaint was opposed before trial Court was Insolvency Petition filed by accused against his creditors including complainant herein. However, issuance of cheque in reference herein was not specifically pleaded therein. Filing of said petition itself, would corroborate complainant's case. Thus, there is sufficient material to substantiate conclusions drawn by trial Court and appellate Court.

For aforesaid reasons and as petitioner has failed to substantiate that findings of both Courts suffer from perversity, I do not see any good grounds to interfere.