Loading judgment…
No AI summary yet for this case.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 09TH DAY OF JULY 2013
BEFORE:
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.728 OF 2012
BETWEEN:
B.K.Narayana Gowda, Son of Late B.R. Krishnappa, Aged about 30 years, Residing at Bandikodigenahalli, Jala Hobli, Bangalore North Taluk – 562 149.
…PETITIONER
(By Shri. T.K. Rajagopala, Advocate )
AND:
M/s. Nandi Enterprises, Represented by its Proprietor, B.K. Manjunath, Aged about 35 years, Residing at 1st Floor, 15th Cross, 6th Main, Mahalakshmi Layout, Bangalore – 560 086. …RESPONDENT
(By Shri. M. Ashwathanarayana Reddy, Advocate)
*****
2 This Criminal Revision Petition is filed under Section 397 read with Section 401 Code of Criminal Procedure, 1973 , praying to set aside the impugned judgment of conviction dated 14.06.2012 passed by the Presiding Officer, Fast Track Court- XVII, Bangalore City in Criminal Appeal No.487 of 2011 and judgment passed dated 02.05.2011 passed by XVI Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.9055 of 2008 and to dismiss the same.
This petition, having been heard and reserved on 20.06.2013 and coming on for Pronouncement of Orders this day, the Court delivered the following:-
ORDER
The petitioner herein was accused of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the ‘NI Act’, for brevity).
The petitioner had entered into an agreement of sale with the complainant to sell land. Substantial payments were made pursuant to the agreement, in favour of the accused. However, it was found that the lands identified were subject matter of acquisition proceedings and therefore, the contract had failed. The complainant having demanded repayment of the advance amounts paid, the accused had returned the amounts – it was in respect of
3 one such repayment, that the cheque in question had been issued. The same when presented for encashment, had been dishonoured for want of sufficient funds. Hence, the complaint had been filed after complying with the statutory requirements. The petitioner had contested the complaint. It was the defence of the petitioner that the cheque in question had been issued as security for the due performance of the contract. The sum mentioned in the cheque in question was towards payment of services rendered in the course of facilitating the purchase of the lands agreed to be purchased and was a sum apart from the agreed price. The cheque was hence misused by the complainant purportedly claiming that it had been issued in repayment of any money. All the advance amounts received had been repaid and hence the complaint was false. It was also sought to be contended that the amount if really due to the complainant would have been reflected in the income tax returns of the complainant and the books of account. The same not having been produced and established an adverse inference ought to have been drawn, as the burden had thus shifted on the
4 complainant to prove the same. Both the courts below having negated these defences, the present petition is filed.
The learned counsel for the petitioner contends thus :
The cheque amount was Rs.12,00,000. In Exhibit P.8, reply dated 7.2.2008 to the legal notice dated 24.1.2008, the purpose for which the said sum of Rs.12,00,000/- was paid to the petitioner is stated, which reads thus: “It was agreed that a sum of Rs.12,00,000/- would be paid to our client which will be used as facilitation fee expenses for providing various revenue documents to your client, getting surveys done, advancing total amounts to various villages for farmers in order to make them commit to sell the lands etc.,”
However, the fact that the said sum of Rs.12,00,000/- was adjusted is stated by the petitioner, in his reply at Page 3 of Exhibit P.8, which reads thus:
“At the time of returning Rs.78,00,000/- by issuing a cheque and after the agreement that the amount of Rs.12,00,000/- would stand adjusted in view of the fact that
5 they could not be retrieved from various farmers to whom token advances had been given and in respect of various expenditure incurred by our client for providing revenue documents etc., our client forgot to take back the cheque that had been given and offered as security to your client.”
PW.1, in his cross-examination recorded on 9.2.2010 as to the maintenance of the accounts, has stated as follows:- “It is true that the complainant firm has business transactions in crores of rupees every year. Therefore, there is an efficient Accounts Department. It is true that there is proper accounting of receipt and payment of monies. It is true that there will be auditing every year in the complainant-firm. “
The said deposition constitutes an admission of the regular books of account maintained by the respondent, a well staffed accounts division in the company of the respondent, annual auditing of the books of account and all receipts and payments duly accounted.
6 As to the entry of the bounced cheque amount of Rs.12,00,000/- in the books of account, the deposition of PW.1 recorded on 15.6.2010 reads as follows:- “In the records of the complainant – firm, there is an entry of the accused having been granted a loan.”
The said admission constitutes admission by PW.1 of existence of the documents with the respondent for accounting the said sum of Rs.12,00,000/-. As to the closure of the transaction relating to Rs.12,00,000/-, the deposition of PW.1 in his cross-examination recorded on 15.6.2010, is as follows:- “It is true that any outstanding loan amount is recorded in the Balance Sheet at the end of the financial year. There is no entry of such transaction either in the Balance sheets of the year 2007 and 2009-2010 or in the income-tax returns. The transaction ends in 2007-2008. The account can only be closed if there is receipt of money. “
The said deposition bears testimony to the fact that the said amount of Rs.12,00,000/- has not been shown in income tax
7 returns for the year 2007-2008 as it was cleared and according to PW.1, only if the amount was received, then only the account of Rs.12,00,000/- would be closed.
The said evidence of PW.1 is virtually an admission of respondent’s version at Exhibit P.8, as extracted above, as to the adjustment of Rs.12,00,000/-.
In view of the above, the bounced cheque amount has been adjusted in the books of accounts of the respondent, as the amount paid by the respondent to the petitioner has been duly adjusted in the books of account, thereby wiping out the said amount and as such, in the books of account of the respondent, no outstanding amount is shown.
The said facts have been stated in the written arguments before the trial court filed on 17.9.2010, but the trial court has not referred to the same in its judgment and the appellate court also has not referred to the same.
8 The learned counsel for the petitioner would, therefore, submit that the petition be allowed.
The argument of the counsel may have been relevant if the present proceeding arose out of a suit for recovery of money based on accounts. The law in so far as the presumption under Section 139 of the NI Act being in favour of the holder of a cheque and though a rebuttable presumption – it could not be held that the absence of entries in the books of account or elsewhere would be relevant. The petitioner was required to establish the positive, admitted absence of a legal liability or debt, by the complainant. In the absence of any such circumstance the petition is without merit and is dismissed.
Sd/-
JUDGE
nv*