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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER 2022
BEFORE
THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.494 OF 2013
BETWEEN:
Sri T.Lokesh, Aged about 38 years, Son of Late Sri Thirumalappa, R/at No.38, Narayanamma Lane, Kodihalli, Bangalore-560 008.
.. Petitioner
( By Sri S.M.Shivabeeraiah, Advocate )
AND:
Sri M.Jayanna, Aged about 40 years, Son of Late Sri Malle Gowda, R/at No.647, 2nd `A' Cross, Old Airport Road, LBS Nagar, Bangalore-560 017.
.. Respondent
( By Smt.S.B.Lakshmi, Advocate )
This Criminal Revision Petition is filed under Section 397 read with Section 401 of Cr.P.C. praying to call for entire record/s in Crl.Appeal No.25111/2012, the order and judgment dated 1st March 2013 by the Hon'ble FTC-III at Mayohall Unit, Bangalore and also in C.C.No.35850/2010 passed by the Hon'ble XIV Addl.ACMM Court at Mayohall, Bangalore for reviewing the judgments in the above cases and further be pleased to set aside the judgment and order dated 1st March
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2013 passed by the Hon'ble Addl.S.J. & P.O., FTC-III at Mayohall Unit, Bangalore, in Crl.Appl.No.25111/2012 and further be pleased to acquit the petitioner by setting aside the trial Court judgment and order dated 18th July 2012 passed in C.C.No.35850/2010 on the file of Hon'ble XIV Addl.ACMM Court at Bangalore, under Section 138 of Negotiable Instruments Act, 1881 Act and grant such other relief including the cost of this in the above circumstances and pass such other order thereon necessary in accordance with law in the interest of justice and equity.
This Criminal Revision Petition having been heard through Physical Hearing/Video Conferencing Hearing, reserved for orders on 04.11.2022 and coming on for pronouncement this day, the Court made the following:
ORDER
The present petitioner was accused in C.C.No.35850/2010, in the Court of the learned XIV Addl.Chief Metropolitan Magistrate, Bengaluru, (hereinafter for brevity referred to as the “trial Court”). By its judgment dated 18.07.2012, the trial Court convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as `N.I.Act’) and was sentenced accordingly.
The summary of the case of the complainant in the trial Court was that the accused issued a cheque bearing No.194175, dated 13.08.2010, for a sum of `18 lakhs,
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drawn on Dena Bank, Kodihalli Branch, Bengaluru, in favour of the complainant towards dischargal of his liability. The accused had borrowed an amount of `18 lakhs from the complainant for his finance business and also had executed an on demand Promissory Note with consideration receipt.
The cheque issued towards repayment of the loan was presented for its realisation by the complainant through his Banker, however, the said cheque came to be returned unpaid for the reason of insufficiency of funds in the account of the drawer. Thereafter, the complainant got issued a legal notice to the accused demanding the payment of the cheque amount. The accused has not paid the cheque amount which constrained the complainant to institute a criminal case against the accused in the trial Court for the offence punishable under Section 138 of N.I.Act.
Since the accused pleaded not guilty, charges were framed against the accused for the alleged offences.
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The complainant in order to prove his case, got himself examined as PW-1 and got marked documents from Exs.P-1 to P-8. On behalf of the accused, the accused got himself examined as DW-1 and one Sri Faziulla Khan as DW-2 and got marked documents from Exs.D-1 to D-5.
After hearing both side, the trial Court by its impugned judgment dated 18.07.2012, convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced him accordingly.
Challenging the said order, the accused has preferred an appeal in Criminal Appeal No.25111/2012 before the learned Addl.Sessions Judge and Presiding Officer, Fast Track Court-III, Mayo Hall Unit, Bengaluru, (hereinafter for brevity referred to as `Sessions Judge's Court), which by its judgment dated 01.03.2013, dismissed the appeal by confirming the judgment of conviction passed by the trial Court. It is against these judgments of conviction, the accused has preferred this revision petition.
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The respondent is being represented by his learned counsel.
Records from the trial Court and Sessions Judge’s Court pertaining to the matter were called for and the same are placed before the Court.
Heard the arguments of learned counsel from both side. Perused the materials placed before this Court.
For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court.
After hearing the learned counsel from both side, he only point that arises for my consideration is,- “Whether the impugned judgments suffer from perversity, illegality, impropriety warranting any interference at the hands of this Court”.
The learned counsel for the petitioner in his argument submitted that the date of loan and the alleged
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date of demand of loan has not been stated in the complaint and even in his evidence as PW-1. Further it is not stated by the complainant as to when the cheque was issued. Therefore, it creates a doubt about the alleged loan transaction. He further submitted that the complainant had no capacity to lend such a huge amount of `18 lakhs since he was only a vegetable vendor. As such also, a serious doubt creates with respect to the alleged loan transaction. However, the trial Court and the Sessions Judge's Court have not analysed these aspects.
Per contra, learned counsel for the respondent in her argument submitted that the date of loan and issuance of cheque has been elicited in the cross-examination of PW- 1. Further, admittedly the complainant was a wholesale dealer in vegetables having lakhs of income per month. As such, the contention taken up by the learned counsel for the petitioner in his argument would not sustain and the impugned judgments does not warrant any interference at the hands of this Court.
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The complainant who got himself examined as PW-1 reiterated the contentions taken up by him in his complaint even in his examination-in-chief as PW-1 which evidence was filed in the form of affidavit evidence. In support of his contention, he got marked the alleged dishonoured cheque at Ex.P-1, the Banker's endorsement at Ex.P-2, the postal receipts at Exs.P-3 and P-4, copy of the legal notice at Ex.P-5, reply to the said notice at Ex.P-6, on demand Promissory Note with consideration receipt at Ex.P-7 and certified copy of the simple Mortgage Deed at Ex.P-8.
Though this witness was subjected to cross- examination from the accused side, however, except making denial suggestions, nothing could be elicited in favour of the accused, on the other hand, some more details have been elicited in the cross-examination of PW-1. Thus, the issuance of cheque by the accused to the complainant as per Ex.P-1 and the same getting dishonoured for the reason of insufficiency of funds as per
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Ex.P-2 and the complainant issuing a legal notice demanding the payment of the cheque amount from the accused as per Ex.P-5, stands established. This forms a presumption as to the existence of legally enforceable debt in favour of the complainant under Section 139 of N.I.Act. However, the said presumption is rebuttable.
In order to rebut the presumption formed in favour of the complainant, the accused took a defence in the form of making suggestions to PW-1 in his cross- examination and also leading his evidence by examining himself as DW-1 and examining one Sri Faziulla Khan as DW-2. The specific defence taken up by the accused was that the complainant was running a chit business. It is in that connection, the complainant had collected on demand Promissory Note and cheques from the accused and various other people and that those cheques were being misused by the complainant. However, PW-1 has denied those suggestions as true. Further, in the cross-examination of DW-1 and DW-2 also, the complainant had denied those
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defences taken up by the accused. Even though the accused got produced cheque record slip at Ex.D-1, his bank passbook at Ex.D-2, copy of his reply to the notice at Ex.D-3 and two postal receipts at Ex.D-4 and D-5, the same would not help the accused in creating a doubt in the case of the complainant about the existence of legally enforceable debt in favour of the complainant.
The evidence of DW-2 that the complainant was running a chit, which was for a sum of `5 lakhs for the period of 25 months at the rate of `20,000/- per month, also has remained to be his self-serving statement. Since the complainant has denied categorically that he was running any such chit business and made suggestions to that effect to DW-1 and DW-2 in their cross-examination, it was required of the witnesses from the accused side to place some more material in corroboration of their defence. If at all the complainant was running a chit business and that accused and DW-2 were members to the same and were subscribing every month a sum of `20,000/-, then
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definitely they were required to possess some documents in that regard. It is not believable that without any documents or receipts, one would continue to pay an alleged subscription of a huge amount of `20,000/- per month for 25 months continuously. As such, the defence of the accused that the cheque in question was collected by the complainant during his chit business would not succeed in rebutting the presumption formed in favour of the complainant about the existence of legally enforceable debt.
In addition to the above, the complainant has also got produced on demand Promissory Note with consideration receipt at Ex.P-7 and got marked the signatures of the accused therein as Executant at Exs.P- 7(a) and P-7(b) respectively. He has further produced a certified copy of the simple Mortgage Deed entered into between DW-2 and himself with respect to a mortgaged transaction. It was suggested to DW-2 (mortgagor) in his cross-examination that the wife of DW-2 had a mortgaged
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transaction with the complainant, the witness has admitted the same as true. Further, DW-2 has also admitted a suggestion as true that he was not aware of the financial matters of his customers, which includes parties to the petition. He has also admitted a suggestion as true that he was unaware of the loan transaction said to have been taken place between the accused and the complainant and any financial transaction that has been taken place between them. Thus, the evidence of DW-2 itself go to show that he was not aware of the loan transaction between the accused and the complainant and that it is only to favour the accused, he deposed in favour of the accused as DW-2.
Further the evidence of DW-1 also could not able to imbibe any doubt in the case of the complainant about the loan transaction. Moreover, the on demand Promissory Note with consideration receipt at Ex.P-7 shown to have been executed by the accused also further strengthens the case of the complainant about the loan transaction between
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himself and the accused. This also makes the case of complainant more believable.
It was also the contention of the learned counsel for the petitioner that the date of loan and date of demand for loan have not been stated in the complaint and by PW- 1, so also, it is not even stated when the cheque was issued to him, as such, the case of the complainant is doubtful.
No doubt, the complainant in his complaint has not specifically stated the exact date of alleged loan transaction and also the exact date when the cheque in question was said to have been issued to him, however, in his cross- examination as PW-1, the witness has given both these details specifically. He has stated that the loan was given by him to the accused in cash on the date 12.03.2010 and that the accused issued the cheque in question to him on the date 13.08.2010. As such, the said argument of learned counsel for the petitioner about the alleged non-mentioning of date of loan and date of issuance of cheque is also not acceptable.
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Lastly, the accused had taken a contention of alleged financial incapacity of the complainant to lend such a huge amount of `18 lakhs as loan to him. The contention of the learned counsel for the petitioner/accused was that the complainant was a vegetable vendor, as such, he cannot have such a huge income.
The alleged financial incapacity to lend the alleged loan of `18 lakhs by the complainant to the accused was not suggested to PW-1 in his cross-examination. On the contrary, it was elicited in the cross-examination of PW-1 that he used to supply vegetables to Saffola market and had been doing the vegetable business since seven years. The witness has specifically stated that he was getting an income of `4,000/- to `5,000/-per day from the business. He admitted a suggestion as true that his monthly income was from `1,25,000/- to `1,50,000/-. The witness has also stated that he was getting income from the land of 3 acres and that he is an Income-tax assessee.
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He further stated that he has mentioned in his Income-tax returns about the loan of `18 lakhs given to the accused. These statements were elicited in the cross- examination of PW-1 by none else than the accused himself and those statements made by PW-1 in response to the questions put to him by the accused have remained undenied and undisputed.
Thus, it go to show that the complainant was earning a sum of `1,50,000/- as income per month from doing business in vegetables and that he is an Income-tax assessee. It has also remained undenied that a mention about the loan transaction in question has been shown by the complainant in his Income-tax returns too.
Furthermore, in the cross-examination of DW-1, the witness has admitted a suggestion as true that the complainant is a wholesale seller of vegetables to Saffola market. The witness pleaded his ignorance to the suggestion that the complainant was getting an income of
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`10,000/- per day. Thus, the alleged income at `10,000/- per day of the complainant has not been specifically denied by the accused in his cross-examination, rather, the accused himself has admitted that the complainant was a wholesale dealer in vegetables to Saffola market.
These details about the income elicited by none else than the accused in the cross-examination of PW-1 and the suggestions made to DW-1 in his cross-examination and the response of DW-1, would clearly go to show that the complainant was financially capable to lend the alleged amount to the accused. As such, the last point of argument of learned counsel for the petitioner that the complainant had no financial capacity to lend the loan amount to the accused is also not acceptable.
Thus, the accused could not be able to rebut the presumption formed in favour of the complainant about the existence of legally enforceable debt. It is appreciating these aspects and analysing the evidence placed before
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them in their proper perspective, since both the trial Court, as well as the Sessions Judge’s Court have given their finding holding the accused guilty of the alleged offence, I do not find any reason to interfere in it.
It is the sentencing policy that the sentence ordered should not be either exorbitant nor for name sake for the proven guilt. It must be proportionate to the gravity of the proven guilt for which the accused is found guilty of.
In the instant case, the petitioner/accused is convicted for the offence punishable under Section 138 of N.I.Act and is sentenced to pay fine of `18,50,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one year. Since in the light of the facts and circumstances of the case, the sentence ordered by the trial Court and confirmed by the Sessions Judge’s Court being proportionate to the gravity of the
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proven guilt against the accused, I do not find any infirmity to interfere in the impugned judgments.
Accordingly, I proceed to pass the following order: ORDER The Criminal Revision Petition is dismissed as devoid of merits.
Registry to transmit a copy of this order to both the trial Court and also to the Sessions Judge’s Court along with their respective records forthwith.
Sd/-
JUDGE
bk/