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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY, 2020 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION NO.305 OF 2011 C/w CRIMINAL REVISION PETITION NO.304 OF 2011
IN CRL.R.P.305/2011:
BETWEEN
N.PUTTASWAMY AGED ABOUT 70 YEARS, S/O LATE NANJAIAH, R/AT No.2572/1, 2ND CROSS, KALIDASA ROAD, ONTIKOPPAL, MYSORE-02. ... PETITIONER (BY SRI KARTHIK YADAV U., ADV., FOR SRI S.K.VENKATA REDDY, ADV.)
AND
MOHANRAJ PUROHITH AGED ABOUT 50 YEARS, S/O PUNMAJI PUROHITH, R/AT No.1864/3, 6TH CROSS, SUBHASHNAGAR, MANDYA CITY. ... RESPONDENT (BY SRI G.BALAKRISHNA SHASTRY, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE ORDER DATED 19.12.2009 PASSED BY THE ADDITIONAL CIVIL JUDGE, (JR.DN.) & JMFC., MANDYA IN C.C.No.761/2007 AND
2 ORDER DATED 10.12.2010 PASSED BY THE ADDITIONAL SESSIONS JUDGE, MANDYA IN CRL.A.No.3/2010.
IN CRL.R.P.304/2011:
BETWEEN
KIRAN KUMAR AGED ABOUT 42 YEARS, S/O N.PUTTASWAMY, R/AT No.2572/1, 2ND CROSS, KALIDASA ROAD, ONTIKOPPAL, MYSORE-02. ... PETITIONER (BY SRI KARTHIK YADAV U., ADV., FOR SRI S.K.VENKATA REDDY, ADV.)
AND
MOHANRAJ PUROHITH AGED ABOUT 50 YEARS, S/O PUNMAJI PUROHITH, R/AT No.1864/3, 6TH CROSS, SUBHASHNAGAR, MANDYA CITY. ... RESPONDENT (BY SRI G.BALAKRISHNA SHASTRY, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE ORDER DATED 19.12.2009 PASSED BY THE ADDITIONAL CIVIL JUDGE, (JR.DN.) & JMFC., MANDYA IN C.C.No.756/2007 AND ORDER DATED 10.12.2010 PASSED BY THE ADDITIONAL SESSIONS JUDGE, MANDYA IN CRL.A.No.9/2010.
THESE CRIMINAL REVISION PETITIONs COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
3 ORDER
Criminal Revision Petition No.305/2011 is filed by the petitioner-accused Sri Puttaswamy assailing the judgment of conviction and sentence passed by the Additional Civil Judge (Jr.Dn) and JMFC, Mandya (hereinafter referred to as ‘trial Court’) in C.C.No.761/2007 dated 19.12.2009 and the same is upheld by the Additional Sessions Judge, Mandya in Crl.A.No.3/2010 whereas, Criminal Revision Petition No.304/2011 is filed by the petitioner-accused Sri Kiran Kumar assailing the judgment of conviction and sentence passed by the Additional Civil Judge (Jr.Dn.) and JMFC, Mandya in C.C.No.756/2007 dated 19.12.2009 and the same was up held by the Additional Sessions Judge, Mandya in Crl.A.No.9/2010 dated 10.12.2010 and the common judgment is passed by the First Appellate Court in both Crl.A.Nos.3 and 9/2010.
Heard the arguments of learned counsel for the petitioners-accused and the respondent-complainant.
The rank of the parties before the trial Court is retained for the sake of convenience.
Since, the complainant in both the cases are one and the same and after the consent of both the parties, both the cases are taken up for common disposal.
The case of the complainant in Crl.R.P.No.305/2011 is that the accused is known to him. The accused has obtained loan for Rs.3,40,000/- from the complainant on 22.05.2005 and agreed to repay within six months. When the complainant demanded the accused to discharge the loan, the accused issued a cheque bearing No.923165 dated 02.02.2006 drawn on State Bank of Mysore, Ontikoppalu Branch, Mysore. The complainant presented the said cheque to his Bank i.e., Bank of India, Mandya Branch which came to be dishonoured on 13.02.2006 for the reason ‘FUNDS INSUFFICIENT’. The notice also issued to the accused by the complainant on 24.02.2006, but the accused failed to repay the said amount. Hence, the complainant filed a complaint against
5 the accused-N.Puttaswamy for the offence under Section 138 of N.I.Act. After taking cognizance, the presence of the accused has been secured. The accused pleaded not guilty and on behalf of the complainant, the complainant himself examined as PW.1 and got marked 18 documents and on behalf of the accused, he himself examined as DW.1 and also got marked 6 documents. After considering the evidence on record, the trial Court found the accused guilty and convicted and sentenced to pay fine of Rs.3,45,000/- in default ordered to undergo imprisonment for three months. Out of the fine amount Rs.3,40,000/- shall be paid as compensation to the complainant. Assailing the same, the accused has filed an appeal before the First Appellate Court in Crl.A.No.3/2010 which came to be dismissed on 10.12.2010. Hence, he has preferred this revision petition before this Court.
Whereas, in Crl.R.P.No.304/2011, the same complainant has contended that the accused approached him for loan and the complainant has lent Rs.2,90,000/- to
6 the accused on 29.05.2005 and to discharge the said loan, the accused issued a cheque bearing No.111581 dated 29.01.2006 of Corporation Bank, V.V.Mohalla, Mysore Branch, Mysore and the same was presented before his Bank i.e, Bank of India, Mandya Branch on 14.02.2006, the same was dishonoured for the reason “FUNDS INSIFFICIENT”. Notice also issued to the accused on 24.02.2006, but the accused failed to repay the said amount. Hence, the complainant filed a complaint against the accused-Kiran Kumar for the offence under Section 138 of N.I.Act. After taking cognizance, the presence of the accused has been secured by the trial Court and plea was recorded, the accused pleaded not guilty. To prove its case, the complainant himself examined as PW.1 and got marked 18 documents and on behalf of the accused, he himself examined as DW.1 but no documents were marked. Considering the evidence on record, the trial Court has convicted the accused and sentenced to pay Rs.2,95,000/- in default to undergo simple imprisonment for 3 months. Out of the fine amount, Rs.2,90,000/- to be
7 paid to the complainant as compensation. Assailing the same, the accused filed an appeal before the First Appellate Court in Crl.A.No.9/2010 which came to be dismissed by common judgment dated 10.12.2010. Hence, the accused also filed revision petition No.304/2011 before this Court.
Learned counsel for the petitioner/accused has strenuously contended that the judgment of the trial Court and the First Appellate Court are not sustainable under law. The documents produced by the complainant cannot be believable in order to prove the paying capacity of the complainant. Even though Exs.P15 to 18 were produced the RTC, Form No.12, acknowledgment and the Tax paid to the Municipal Corporation that does not reveals that he is having sufficient source of income to lend so much of amount for about Rs.3,40,000/- to the accused- Puttaswamy and Rs.2,90,000/- to the another accused- Kiran Kumar. The income tax return produced by the complainant also does not reveals the income capacity and
8 also earning capacity and out of the income tax return. Therefore, the complainant has failed to prove his paying capacity of so much of amount to the accused persons. That apart, the house of the accused is situated at Mysuru, the complainant is at nearby district i.e, at Mandya. They were not neighbours and no relationship between the accused and the complainant. Such being the case, question of borrowing loan and discharging does not arise. Further, the learned counsel has contended that the accused has taken defense in the reply notice as well as in the cross examination stating that both the accused persons were faced trial in Special case registered against them in criminal court, then engaged one advocate named Somashekar for defending their case. During the pendency of the said case, the said advocate collected two cheques from these accused persons and the same was mis-used through this complainant and the notice also given to the said advocate. Apart from lodging the complaint before the Court and also complaint filed before the Karnataka Bar council for taking action against the said advocate
9 Somashekar. The documents Ex.D5 produced by the petitioner-Puttaswamy go to show that the said advocate appeared for both the case in Special C.C.No.48/2000 and the said advocate mis-used the cheques which were received from the accused persons. However, during the course of arguments, the learned counsel also submits that the said advocate also filed two cases through Ramakrishna two criminal cases under Section 138 of N.I. Act. Though, the said criminal cases ended up in acquittal and the appeal also came before the High Court which is pending. The accused is able to rebut the presumption available to the complainant. The trial Court and the First Appellate Court have failed to appreciate the evidence on record and accept the contention of the accused. Therefore, prayed for allowing the petition by setting aside the conviction and sentence passed by the trial Court.
Per contra, learned counsel appearing for the respondent in both the cases has supported the judgment of both the Courts below and contended that the accused
10 did not dispute the issuance of cheque and signature found in the cheque, but taken contention that the cheques were given to Somashekar, advocate and they were able to prove the case of the complainant, that the accused borrowed loan from the complainant on the date mentioned in the complaint dated 22.05.2005 by Puttaswamy and dated 29.05.2005 by Kiran Kumar for Rs.2,90,000/- whereas, presumption is available under Section 139 of N.I.Act in favour of the complainant. Accused were not able to rebut the same by leading positive evidence before the trial Court. Exs.P15, 16 and 17 are all documents which go to show that the complainant is having sold the property and earning income by lending the same to accused. Apart from selling the agricultural land, he is having income from the agriculture. He has also filed IT returns to show that he is an income tax assessee. He is also having textile business and merely, he has not declared the amount lent to the accused in his income tax returns. That itself is not a ground to rebut a case of the complainant. Merely, the
11 complainant is not able to show the income as on the date of lending loan to the accused. That cannot be a ground to reject the case of complainant.
It is further contended that the complainant is having business apart from income from rent as well as agricultural income. Thereby, the complainant is successful in establishing the source of income and paying capacity. The trial Court and the First Appellate Court have rightly appreciated the case of the complainant and have rightly convicted the accused persons and sentenced to pay fine amount as well as compensation. There is no illegality or error in order to interfere with the findings of both the Court. Hence, prayed for dismissing the revision petition.
Upon hearing the arguments of learned counsel for both the parties, the point that arises for my consideration is:
“Whether the judgment of conviction and sentence passed by the trial Court and upheld
12 by the First Appellate Court in both the cases call for interference?”
On perusal of the records, it would go to show that the complainant is one and the same in both the cases in C.C.Nos.761/2007 and 757/2007.
The case of the complainant is that the accused Puttaswamy approached him and obtained loan of Rs.3,40,000/- on 22.05.2005 with an assurance to repay within six months and the said amount is said to be obtained by him for the purpose of family necessity and business purpose. The case of the accused is one the total denial regarding the relationship and issuance of cheque to the complainant. The accused has taken the plea that he gave these two cheques to one Somashekar, Advocate to conduct the trial for himself and son and in the connection of the accused namely Kiran Kumar in criminal trial, the accused gave a cheque to their advocate and the said advocate by misusing the same filed a complaint through this complainant. The complainant in order to prove his
13 case relied upon the cheque-Ex.P1, which was said to be established by the accused. Ex.P2 is the Advocate endorsement, Ex.P3 is the legal notice, Ex.P4 is the returned RPAD cover, Ex.P5 is the certificate of posting, Ex.P6 is the postal receipt in order to show that the cheque was presented and dishonoured with the notice issued to the accused. Regarding dishonour of the cheque, issuance of the notice is not in dispute. Even the accused has not denied the signature found on the cheque which was produced by the complainant. The accused has taken the contention that, first of all the complainant do not have any capacity to pay the said amount to the accused and even there is no other documents than the cheque in order to show that he has paid huge amount.
The complainant in order to prove his paying capacity, he has got marked Ex.P7-the Registration certificate, Ex.P8-the VAT Registration and Exs.P9 to 12 are the VAT Assessment list. Exs.P13 to 15 are the tax paid receipts for having paid the tax. Ex.P16 is Form
14 No.12, whether the complainant got exempted for the payment of tax as his tax limit is within the limit of exemption of the tax. Ex.P17 is the acknowledgment for income tax returns for the year assessment year 2007- 2008. These documents were controverted by the counsel for the accused in the cross-examination. On perusal of these documents, no doubt, the complainant having land property and the house property in Mandya Town, paid taxes for the year 2006-2007 onwards. Ex.P17 is the IT return extract (acknowledgment) goes to show that the gross total income of the complainant for the assessment year 2007-2008 was about Rs.1,67,810/-. If calculated for a month, it comes for only Rs.14,000/- and odd per month. As contended by the learned counsel for the accused-petitioner, the complainant has not disclosed the amount lent to both the accused to the tune of Rs.2,40,000/- and Rs.2,19,000/- by hand loan. Admittedly, the income tax return does not reflect regarding declaring of the loan lent to the accused persons. That apart, the complainant except producing the house property tax
15 receipt which was paid in the year 2006 onwards also does not reveals that what was his income per month or per annum. Ex.P18-RTC extract though it is in the name of the complainant for two acres of land, but at column No.12, it does not reveals that any crops were cultivated or grown and any income other than these documents. The complainant has not produced his passbook or bank statement to show that as on the date of 22.05.2005, he had more than Rs.3,00,000/- in his possession in order to lend Rs.3,40,000/- to the accused-Puttaswamy and also lent Rs.2,90,000/- to the accused-Kiran Kumar as on 29.05.2005. Absolutely, there are no documents to show that the complainant had so much amount in his possession or in his account in order to pay to accused persons.
Mere production of the VAT tax registration certificate, the land at RTC records and the sole assessment property tax receipt is not sufficient. No doubt, to show that he has paid huge amount to accused, the
16 relationship between the accused and the complainant is not proved. Since, the accused is residing at Ontikoppalu, Mysuru whereas the complainant staying at Mandya town. Though the complainant has stated that the accused is having business contact but no account to show that he has lent more than Rs.6,00,000/- to the accused without any documents is not acceptable one. Therefore, the arguments addressed by the learned counsel for the complainant cannot be acceptable. The complainant has no capacity to pay more than Rs.6,00,000/- to the accused on the alleged date other than cheque in order to show that he has lent money for the purpose of either business or family necessity of the accused persons.
Per contra, the accused is able to show that these two cheques were issued to the advocate Somashekar while facing trial at Mandya in the special case and these cheques were not returned by the said Somashekar. On the other hand two cheques were given and another cheque given to Ramakrishna and chosen to
17 file four different criminal cases against these accused persons. The accused has also produced and marked Ex.D1 as a reply notice where he has categorically stated that these cheques were issued to the advocate. Even Ex.D2 is the notice sent by the accused to the complainant for returning the said cheque. Ex.D3 shows the acknowledgement for having lodged the complaint by the accused against the advocate Somashekar for mis- conduct. Ex.D4-copy of the complaint filed by the accused before JMFC, Mandya against the advocate as well as this complainant-Mohanraj Purohith and another person Ramakrishna for mis-using the cheques issued by the accused. That apart Ex.D5 memo of appearance filed by the said advocate in favour of the accused persons for defending their case before Special Judge, Mandya in Special case No.48/2000. These documents were able to show that the contention of the accused is believable and the accused persons were able to rebut the presumption available to the complainant under Section 139 of N.I.Act. It is well settled by the Hon’ble Supreme Court in the case
18 of M. Manohar Reddy and another vs. Union of India and others reported in (2013) 3 SCC 99 and also in the case of Vijay vs. Laxman and another reported in (2013) 3 SCC 86 has held that the when a cheque is issued by a person who has signed on the cheque and the complainant reasonably discharges the burden that the cheque had been issued towards a lawful payment, it is for the accused to discharge the burden under Sections 118 and 139 of the N.I.Act and not required to prove beyond reasonable doubt as required in the case of other criminal proceedings. In the said case, the Hon’ble Supreme Court also held that the complainant has not able to show actual payment of the date on which he paid the amount without any other documents other than the cheque. The contention of the complainant cannot be acceptable. Here, in this case also the complainant has not produced any documents to show his relationship or amount actually paid to the accused persons on the said date either 22.05.2005 or 29.05.2005 to both the accused persons. The accused persons were able to rebut the presumption
19 available to the complainant by producing Exs.D1 and D5 and led evidence before the trial Court. That apart, the learned counsel also produced the certified copy of the judgment in C.C.Nos.896/2006 and 913/2006 in two cases. One Ramakrishna filed a similar complaint under Section 138 of N.I.Act against the same accused persons for the cheque amount of Rs.3,00,000/- and Rs.2,50,000/-.
Though, these documents are not required, but it is also relevant to the present case for taking defence by the accused. The cheque numbers in those two cases was shown as 923166 and 111582. If these two cheque were compared with the cheque in question, it clearly goes to show that these two cheques were issued by the accused-Puttaswamy and another two cheques were issued by the accused-Kiran Kumar and those numbers are adjacent numbers to each other.
The first case in C.C.No.756/2007 pertains to cheque No.111518 and in another case in C.C.No.761/2007 pertains to cheque No.923165. The
20 other two cases were filed by Ramakrishna which criminal offences taken by the accused shows that there is an argument addressed by the counsel for the accused. Therefore, in my considered opinion, the trial Court and the First Appellate Court has committed error in convicting the accused holding that the complainant has established his case for having paid the loan to the accused. Accused gave cheque to the complainant in order to discharge their liability which is legally enforceable. The findings of the trial Court and the First Appellate Court are required to be set aside. Accordingly, I pass the following order: Criminal revision petition filed by both the accused- persons are allowed and the judgment of conviction and sentence passed by the trial Court and upheld by the First Appellate Court are hereby set aside. The accused persons are acquitted for the offence punishable under Section 138 of N.I.Act and their bail bond shall stand cancelled.
21 The amount, if any, deposited by the accused is ordered to be refunded to them after due identification.
Sd/- JUDGE
GBB