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NC: 2023:KHC:28088 CRL.RP No. 442 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. 442 OF 2015
BETWEEN:
SRI. D. B. JATTI S/O LATE B. D. JATTI, AGED 70 YEARS, R/AT DWARAKAMAI, SURVEY NO. 51, ECC ROAD, WHITEFIELD, BENGALURU-560 066, (WRONGLY MENTIONED IN THE COMPLAINT AS RESIDENT OF NO.73, MILLERS ROAD, BENGALURU)
M/S. JATTI AUTOMOBILES, (WOUND UP WAY BACK IN THE YEAR 2007 BUT WRONGLY SHOWN BY THE COMPLAINANT AS FUNCTIONING FROM THE BELOW MENTIONED ADDRESS) NO.225, RAMANA MAHARISHI ROAD, BENGALURU-560 094, REP. BY ITS PROPRIETOR, SRI. D. B. JATTI. …PETITIONERS (BY SRI. MAHABALESH K. PATIL, ADVOCATE FOR SMT. VIJETHA R. NAIK, ADVOCATE)
AND:
SRI. CHANDAN S. NAIK, S/O. S. P. NAIK, AGED ABOUT 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. 442 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.549/2014 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.260/2010.
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.260/2010 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.549/2014. 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. 442 of 2015
The brief factual matrix leading to the case are that accused No.1 is the proprietor of accused No.2-Firm. It is asserted that the complainant has invested Rs.3,00,000/- with the accused and accused No.1 has agreed to pay the interest at the rate of 18% p.a., on the said amount. He has issued a receipt for having received the amount of Rs.3,00,000/- and when the complainant has requested the accused to repay the said amount, accused No.1 has issued a cheque for Rs.3,00,000/- and when the complainant presented the said cheque on 01.09.2009, same was dishonored for insufficient funds. 4. The complainant has got issued a legal notice, but the accused did not respond to the same and hence, a complaint came to be lodged. On the basis of the complaint and after recording the sworn statement, the learned Magistrate has taken cognizance of the offence and issued process against the accused. Accused have appeared and enlarged on bail. The accusation under Section 138 of the NI Act is denied by the accused. The
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NC: 2023:KHC:28088 CRL.RP No. 442 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.549/2014 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. 442 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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NC: 2023:KHC:28088 CRL.RP No. 442 of 2015
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.P1 and further, he has admitted that cheque belongs to
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NC: 2023:KHC:28088 CRL.RP No. 442 of 2015
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.P13 is a material document which is a receipt for having deposited the amount and Ex.P12 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.P12 & P13 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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NC: 2023:KHC:28088 CRL.RP No. 442 of 2015
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.P12 and P13 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. 442 of 2015
Looking to these facts and circumstances, the point under consideration is answered in the negative. As such, petition being devoid of any merits does not survive for consideration. Accordingly, I proceed to pass the following: ORDER The revision petition is dismissed.
Sd/- JUDGE
DS List No.: 1 Sl No.: 31