HOGETHOPPALU VISHWANATH PRATHIBA vs. THE INCOME TAX OFFICER

CHETHAN OWNER OF BRS IRON AND STEELS NEW MANDLI, N.T.ROAD SHIVAMOGGA-577 202. …RESPONDENT

The factual matrix of the case of the respondent/complainant before the Trial Court while filing private complaint invoking Section 138 of N.I. Act contend that this petitioner had purchased steel worth of Rs.3,68,574/- on 23.02.2016 from the complainant and complainant issued bill No.916 to the accused. When the request was made to pay the amount, the accused issued cheque dated 11.08.2016 for the above amount and when the same was presented, returned with an endorsement ‘exceeds arrangement’ vide endorsement dated 12.08.2016 and the same was intimated to him through phone. When the payment was not made, legal notice was issued on 02.09.2016 and the accused was served on 13.09.2016. He did not comply with the demand and hence,

The complainant examined himself as P.W.1 and got marked the documents as Exs.P1 to P8. On the other hand, the accused did not choose to lead any defence evidence.

The Trial Court having considered the material on record, comes to the conclusion that cheque is not disputed and for having purchased the steel, document of Ex.P8-Bill Book is also produced before the Trial Court and also postal receipt, income tax returns acknowledgement and confirmation of accounts are marked as Exs.P5 to P7 respectively. The defence taken is that there was transaction between complainant’s brother and revision petitioner and suggestions are made to that effect. But, having considered the evidence available on record, except suggestion, nothing is elicited from the mouth of P.W.1 and defence evidence is also not led. Hence, the Trial Court comes to the conclusion that defence has not been proved and not placed any rebuttal evidence as against the evidence of P.W.1-complainant and only suggestion that Ex.P8 not belongs to the accused is made and the same was denied.

The First Appellate Court also having reassessed both oral and documentary evidence placed on record, comes to the conclusion that when presumption under Section 139 of N.I. Act has not been rebutted, question of reversing the finding does not arise and also discussed in paragraph No.22 of the judgment with regard to the defence that at the time of borrowing Rs.20,000/-, blank cheque has been issued and the same has been misused has not been established and also categorically observed that accused could have issued reply notice or he could have taken legal action against the complainant and he could have demanded back the cheque issued to him and the same has not been done and confirmed the judgment of the Trial Court.

Learned counsel appearing for the petitioner in his argument would vehemently contend that even in the absence of defence evidence also, the Court can consider the defence and P.W.1 during the course of cross-examination stated that there is a loan transaction between the petitioner and his brother, but denied the suggestion Ex.P1-cheque was issued while borrowing loan from his brother and the same is plausible evidence when there is a loan transaction and committed an error and it requires interference of this Court.

Having heard learned counsel appearing for the petitioner and having considered the grounds urged in the revision petition and also the material on record, the points that would arise for consideration of this Court are: (i) Whether the Trial Court committed an error in convicting and sentencing the petitioner and confirmation of the same by the First Appellate Court and whether it requires interference of this Court and order impugned suffers from its legality and correctness? (ii) What order

Having heard learned counsel appearing for the petitioner and also having perused the material on record, the case of the complainant is that the petitioner had purchased steel worth of Rs.3,68,574/- on 23.02.2016 in terms of bill No.916 and also produced Ex.P8 which is marked before the Trial Court for having supplied the same and also not disputes the cheque dated 11.08.2016 and bill was dated 23.02.2016 and cheque was given subsequently on 11.08.2016 and when the same was presented, endorsement was issued ‘exceeds arrangement’. It is also important to note that when the notice was issued and served, no reply was given. Even if it is a transaction for a sum of Rs.20,000/- as contended by learned counsel for the petitioner/accused, if claim is made to the tune of Rs.3,68,574/-, he would have given reply immediately and no such reply was given. But, during the course of cross- examination, afterthought, defence was set out that Cheque was given at the time of availing loan from the brother of the complainant and no complaint was given against the brother of the complainant for misusing the Cheque. Normally, when a notice is served claiming such a huge amount in a sum of

It is also important to note that in the 313 statement also, except total denial with regard to his defence, nothing is stated in his 313 statement. Having perused the material on record, I do not find any force in the contention of learned counsel for the petitioner. Accordingly, I answer the point No.(i) as ‘negative’.

In view of the discussion made above, I pass the following: