THE COMMISSIONER OF INCOME TAX (EXE) vs. M/S. GAYATHRI NITHYA VIDYA TRUST

Facts of the case in brief which are utmost necessary for disposal of the present revision petition are as under:

Towards the repayment of the said loan amount, accused has issued a cheque bearing No.786275 drawn on State Bank of India, Mysuru, Ittige Goodu Branch on 16.05.2011. The said cheque, on presentation came to be dishonored with an endorsement ‘funds insufficient’ on 18.05.2011.

Legal notice was issued demanding the amount covered under the cheque. An untenable reply was received by the complainant and therefore, complainant sought for action against the accused.

Learned Trial Magistrate on completing the necessary formalities, summoned the accused and recorded the plea. Accused pleaded not guilty and therefore, trial was held.

In order to prove the case of the complainant, complainant got examined himself as P.W.1 and placed on record seven documents, exhibited and marked as Exs.P.1 to P.7, comprising of dishonored cheque, bank endorsement, copy of the legal notice, postal acknowledgement, account extract and reply notice.

Detailed cross-examination of the complainant did not yield any positive material so as to disbelieve the version of the complainant or to dislodge the presumption available to the complainant under Section 139 of Negotiable Instruments Act, 1881.

Financial capacity of the complainant was also questioned by the accused. Thereafter the complainant placed further evidence and marked account extract as per Ex.P.6.

Accused statement as is contemplated under Section 313 Cr.P.C., was recorded, wherein the accused has denied all the incriminating material.

To rebut the presumption available to the complainant, accused has got examined himself as D.W.1 and placed on record letter issued under the right to information Act, certified copy of deposition of Mohan Kumari in C.C.No.3/2012, certified copy of the other witnesses in the same case and copy of the complaint in C.C.No.53/2012 and copy of the charge sheet in Cr.No.108/2011 as Exs.D.1 to D.6.

In the cross-examination of D.W.1, accused has admitted that the signature found in Ex.P.1 cheque as his signature and he has maintained that the cheque was issued in favour of Mahadeva Naika which was misused by said Mahadeva Naika in active collusion with the complainant.

It was also elicited in the cross-examination of D.W.1 that he has not demanded in writing to return the cheque to Mahadeva Naika.

He admits that while replying to the notice, it has been mentioned in the reply notice that the cheque was issued to Mahadeva Naika. He also admits that he has not taken any action against Mahadeva Naika or the complainant for the alleged misuse. He further admits that, he had not issued any ‘stop payment’ direction to his banker. He further admits that there was a departmental enquiry against him and he has been held guilty in the said enquiry and he was also denied one increment and he was warned by the employer. He also admits that one Komala had also complained against his wife and one Lakshamma has also filed a case for dishonor of cheque against the accused.

Based on the above oral and documentary evidence on record, learned Trial Judge, after hearing the arguments of both sides, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and sentenced the accused as referred to supra.

Being aggrieved by the same, accused filed an appeal before the District Court in Crl.A.No.256/2015.

The learned Judge in the First Appellate Court after securing the records, heard the parties in detail and dismissed the appeal of the accused.

Being further aggrieved by the same, accused is before this Court in this revision petition on the following grounds:  The Hon'ble IV Addl. Sessions Judge at Mysuru ought to have allowed the Appeal filed by the petitioner in Crl.R.P.256/2015 as the facts and circumstances of the case prima facie shows that, the cheque was not issued towards any legally enforceable debt or liability.  The Hon'ble IV Addl. Sessions Judge at Mysuru failed in appreciating the evidence on record and ought to have allowed the Appeal filed by the petitioner.  Both the courts below have erred in coming to the conclusion that, the petitioner has committed the offence punishable under Section 138 of N.I.Act.  Though the respondent failed to produce all the relevant documents which are very much necessary as the documents evidence to prove that the petitioner committed the offence punishable under Sec. 138 of N.I.Act, but inspite of that the Hon'ble Judges in the courts below came to the conclusion that, the petitioner committed the offence punishable under Sec. 138 NI Act which is wrong and against to law.  The Hon'ble Judges in the courts below utterly failed to consider that, any transaction more than Rs.20,000/-

Learned counsel for the revision petitioner, reiterating the grounds urged in the revision petition, contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused and therefore, sought to allow the revision petition.

She further emphasized that the lending capacity of the complainant was questioned by the accused and in answer to the same, account extract of Pragathi Electricals is filed, which is marked as Ex.P.6 which has got nothing to do with the financial capacity of the complainant which is totally ignored by the learned Trial Judge and the learned Judge in the First Appellate Court and therefore, order of conviction is incorrect and sought to allow the revision petition.

Learned counsel for the respondent remained absent today.

Therefore, this Court perused the material on record meticulously in the light of the arguments put forth on behalf of the revision petitioner.

On such perusal of the material on record, the following points would arise for consideration: (i) Whether the revision petitioner establishes that the conviction order passed by the learned Trial Judge confirmed by the learned Judge in the First Appellate Court suffers from patent factual error or perversity so as to call for interference in the revisional jurisdiction?

REGARDING POINT No.1: In the case on hand, the accused has admitted in his cross-examination regarding issuance of cheque and signature found therein, is not in dispute. The complainant has stepped into the witness box and has stated that cheque is issued towards repayment of hand loan in a sum of Rs.3,00,000/-.

Accused having admitted the issuance of cheque, took up the contention that cheque was issued to one Mahadeva Naika when accused had borrowed Rs.10,000/- from him and said Mahadeva Naika instead of returning the cheque to the accused

Pertinently, reply notice marked at Ex.P.7 does not mention the issuance of cheque to Mahadeva Naika. Accused has admitted in his cross-examination that no action is taken by him against Mahadeva Naika or complainant for misuse of cheque. He also admits that no notice is issued to Mahadeva Naika after repayment of Rs.10,000/- obtained by accused from Mahadeva Naika.

All these factors, when taken into consideration, it is noticed that, accused at one breath has stated that the complainant is a stranger, but in the cross-examination and the contents of the reply runs contrary to the suggestion made by the accused.

These aspects of the matter have been rightly appreciated by the learned Trial Judge while convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, by raising presumption

The material on record was rightly re-appreciated by the learned Judge in the First Appellate Court while upholding the judgment of the learned Trial Judge.

This Court having regard to the limited revisional jurisdiction, cannot re-appreciate the factual aspects urged on behalf of the revision petitioner that complainant is a stranger, so as to hold that the impugned judgments are suffering from perversity.

Accordingly, in view of the foregoing discussion, point No.1 is answered in the negative.

REGARDING POINT No.2: The learned Trial Judge has imposed fine of Rs.3,11,000/- as against the cheque amount of Rs.3,10,000/-.

Since the lis is privy to the parties and no State machinery is involved, imposing Rs.1,000/- towards defraying expenses of the State needs interference by this Court. Accordingly, point No.2 is answered partly in the affirmative.

REGARDING POINT No.3: In view of the finding of this Court on point Nos.1 and 2 as above, the following: ORDER (i) Criminal Revision Petition is allowed in part.