The High Court
Case Details
- 1 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 225 OF 2021 BETWEEN: 1. SRI. DR. A.G. BANDI, S./O LATE GURUMURTHAPPA, AGED ABOUT 69 YEARS, RETIRED PROFESSOR, R/AT NO.656, INFRONT OF KALWARI BETTA, BESIDE COFFEE BOARD LAYOUT, KEMPAPURA HEBBAL, BENGALURU-560 024. (BY SRI. K.S.MALLIKARJUNAIAH, ADVOCATE) …PETITIONER Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA AND: 1. SRI. ADINARAYANA SETTY, S/O V.M. RAJAGOPAL SETTY, AGED ABOUT 54 YEARS, R/AT NO.1143, 5TH CROSS, 4TH MAIN, K.N.EXTENSION, YESHWANTHAPURA, BENGALURU-560 022. …RESPONDENT (BY SRI. VIRUPAKSHAIAH P.H., ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 06.01.2020 IN CRL.A.NO.1264/2019 ON THE FILE OF LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT - 2 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 BENGALURU (CCH-66) AND THE JUDGMENT DATED 12.04.2019 IN CC.NO.22472/2017 ON THE FILE OF XII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BENGALURU. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL ORDER 1. Heard the learned counsel for revision petitioner and also the learned counsel for the respondent. 2. This revision petition is filed against the concurrent of Trial Court and First Appellate Court for the offences punishable under Section 138 of N.I Act for conviction and sentence. 3. The factual matrix of case of complainant
Facts
before the Trial Court is that the accused has borrowed an amount of Rs.4,00,000/- from him in the month of September 2016 second week to meet his urgent requirement and legal necessities and promise to repay the said amount within six months considering the needs of the accused, he paid sum of Rs.4,00,000/- to the - 3 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 accused and further contend that after lapse of six months, he approached and demanded the accused for repayment of the money which is subject matter of two Cheques. When the said Cheques are presented, both Cheques are dishonored with an endorsement ‘Funds insufficient’. Immediately he informed the accused about dishonor of the Cheques and he failed to pay the loan amount and the complainant left with no other option, he has issued legal notice through certificate of posting and also RPAD and notice was duly served and accused on 19.07.2017 and despite of service of notice, no reply was given and not complied with the demand and hence filed the complaint and the Trial Court has taken the cognizance and secured the accused and he did not plead guilty and hence trial was commenced. 4. It is also the case the complainant has been examined as PW1 and got marked Ex.P1 to Ex.P7(a) and he was subjected to 313 statement and thereafter accused also examined himself as DW1 and got marked the - 4 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 documents as Ex.D1 and Ex.D2(c). The Trial Court having considered the material accepted the case of the complainant and not accepted the defense theory of the accused, since he has set up the defence that earlier also he used to avail the money and he had received an amount of Rs.1,00,000/- and the same was repaid. The Cheques obtained earlier were misused and filed the false case. 5. Being aggrieved the conviction and sentence an appeal is filed in Crl.A.No.1264/2019 and First Appellate Court having considered the material on record, both oral and documentary evidence placed on record and relying upon the documentary evidence, comes to the conclusion that burden is on the accused to rebut the presumption and no doubt he has been examined as PW1. Though he contend that these two Cheques are misused by the complainant and in order to substantiate the said contention nothing is placed on record. He has stated in his evidence that complainant has filed false case and he - 5 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 has not borrowed the money and only borrowed Rs.1,00,000/- and the same was repaid. Though such defense was taken, he did not dispute the signature but only disputes the contention that the Cheques were misused. The First Appellate Court taken note of the judgment of the Apex Court in Rangappa V/s Mohan wherein presumption was drawn and also in paragraph No.21 comes to the conclusion that in the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive
Legal Reasoning
burden. It is settled law that the accused has to rebut the presumption under Section 139 and not rebutted the same by adducing any cogent evidence. 6. The contention that there was no any source of income is concerned is also discussed in paragraph No.22 that he categorically says that he is running a petty shop on which he has earning Rs.10,000/- per month and he used to deposit savings in Shamrao Vital Co-operative - 6 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 Bank Ltd., and amount paid to the accused was withdrawn from his account and hence, dismissed the appeal. 7. The counsel appearing for the revision petitioner would vehemently contend that though he says that he withdrew the money from the bank, but no document is placed before the Trial Court to accept the said contention. The counsel also would vehemently contend that it is the case of the complainant that in the 2nd week of September amount was paid but no date was mentioned in the complaint as well as in his evidence. The counsel also would contend that no notice was served and no source of income and not produced any bank details to show that he was having money in the bank. It is the specific case of the revision petitioner earlier Cheques are misused and hence, both the Courts have not appreciated the material on record in a proper prospective and the reasoning given by both Courts are not legal and hence revision jurisdiction can be invoked. - 7 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 8. Per Contra, the counsel for respondent would vehemently contend that accused took several defense and one of the defense is that he has received only Rs.1,00,000/- in the year 2009 and the same was paid. In order to prove the factum that he had paid the Rs.1,00,000/ also nothing is placed on record. The counsel also would contend that other defense was taken that subject matter that is Cheques were given in earlier transaction as security and the same have been misused. In order to prove the fact that the same has been misused no cogent evidence has been placed by the revision petitioner. The counsel also would vehemently contend that no dispute with regard to the issuance of Cheque and also signature is not disputed. When such being the case, the Court has to draw the presumption under Section 139 of N.I Act and accordingly, both the Trial Court and First Appellate Court drawn the presumption since there is no any plausible evidence on the part of the revision petitioner with regard to the defense is concerned. The counsel would vehemently contend that notice address is - 8 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 admitted stating that if any notice sent to the particular address which is mentioned in the complaint and also in the notice would be served. When such admission is given when the address mentioned in the notice as well as in the complaint is that of the address of the revision petitioner cannot deny the same. The notice has been sent through registered post as well as certificate of posting. When the address is admitted cannot contend that no notice was served. The counsel also would vehemently contend that in respect of very same address only summons was also served. The counsel would vehemently contend that very contention of the revision petitioner’s counsel that his income was Rs.10,000/- per annum cannot be accepted and he specifically deposed that his income was Rs.10,000/- per month. Hence, the said contention cannot be accepted. 9. The counsel appearing for the revision petitioner in support of his argument he relies upon the judgment reported in (2015) 1 Supreme Court Cases - 9 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 99 in case of K.Subramani V/s K.Damodara Naidu and counsel would vehemently contend that legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant– accused, presumption in favour of holder of Cheque, hence, held, stood rebutted, acquittal restored and counsel referring this judgment also would vehemently contend that this judgment is aptly applicable to the case on hand since source has not been proved. 10. The counsel appearing for the revision petitioner also relied upon the judgment AIR 2008 Supreme Court 278 in case of John.K.John V/s Tom Varghese and Anr and referring this judgment also counsel would contend that respondent alleged to have borrowed huge sum from appellant-complainant despite suits for recovery of defaulted amount filed against him by appellant-no document is executed except the Cheque which was given earlier and observing this judgment finding of fact by High Court that respondent did not issue - 10 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 Cheques in discharge of any debt and discharged burden of proof cast on him under Section 139, being not perverse cannot be interfered with under Art.136. 11. The counsel appearing for respondent/complainant also as against the judgments referred by the revision petitioner relied upon the judgment reported in LAWS(SC) 2015 4 79 in case of T.Vasanthakumar V/s Vijayakumari wherein held that where issuance of Cheque and signature of accused thereon has been accepted by him presumption under Section 139 would operate. 12. The counsel relied upon the judgment of Rangappa V/s Mohan wherein also the counsel brought to notice of this Court the discussion made with regard to accused had made regular payments to complainant in relation to construction of his house does not preclude the possibility of complainant having spent his own money for same purpose, very fact that accused had failed to - 11 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 statutory notice under Section 138 of Act, leads to interfere that there was no merit in complainant’s version of spending his own money, can be said that accused failed to rebut presumption by raising probate defence. 13. Having considered the submission of petitioner’s counsel and also the counsel appearing for the respondent and also the material on record, since this Court secured the records and having considered the considering both oral and documentary evidence placed on record that point that would arise for consideration of this Court are: 1) Whether the Trial Court and First Appellate Court committed an error in convicting and sentencing and whether this Court can invoke revisional jurisdiction in coming to the conclusion that finding is perverse and not legal and it requires interference? 2) What Order? - 12 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 14. Having heard the respective counsel, it is the specific case of the complainant that he had lend the money of Rs.4,00,000/- in the 2nd week of September- 2016. No doubt as contended by the counsel appearing for the petitioner that specific date of advance is not mentioned, but categorically stated that the accused had given assurance to repay the amount within six months and when he did not repay the amount, he gave two Cheques and those two Cheques are marked and counsel for the petitioner also not disputes the fact that Cheque belongs to his account and also signature belongs to his account. 15. The defence raised by the petitioner that earlier there was transaction between both of them and also borrowed an amount of Rs.4,00,000/- and the same was repaid and admission also given by PW1 that earlier there was a transaction between both of them and also contend that no source of income to make such payment of Rs.4,00,000/- and not produced bank details also even - 13 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 though submits that amount was drawn and paid the same. In order to substantiate the contention that earlier two Cheques were given, nothing is placed on record. But, the PW1 categorically admits that earlier there was transaction between them and also he categorically says that he clear the money by way of cash in his house and at that he and his wife and also accused were there in the house and also categorically says that he was drawn the money from the bank and gave the money but no document is placed for having drawn the money. But the fact is that DW1 himself admits that he was transacting with the complainant and also he used to say that he used to collect the amount of Rs.25,000/- and Rs.30,000/- in the year 2002-03 and he repaid the amount within 2 or 3 years and also categorically admits that he used to collect the money whenever he need of money and only he says that one or two times he has taken the money. Hence, it is very clear that when he was in need of money, he used to borrow the money from the complainant. - 14 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 16. It is also important to note that he categorically says that he availed the money in the year 2009, but he repaid the amount in the year 2015 and also he does not remember on what date he paid the interest and also he categorically admits that when the two Cheques which have been received by him and when he did not return the same, he has not given any notice. There was no any difficulty to issue such notice. He also categorically admits that he is having the acquaintance with the knowledge of bank transaction and he has not given any stop payment. When these admissions are elicited from the mouth of DW1, though he contend that earlier he availed the money and returned the same and in order to returning the money, either Rs.25,000/- to Rs.30,000/- or an amount of Rs.1,00,000/- also no such document is placed. It is the contention of the petitioner’s counsel that his admission is very clear that he is getting sum of Rs.10,000/- per year and the said contention cannot be accepted having read the evidence, income of Rs.10,000/- per month not per annum and also when he did not dispute the fact that he - 15 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 was availing the money from the complainant as and when he required the money cannot contend that there was no any source of income for him and rightly drawn the presumption under Section 139 of N.I Act since there was no any rebuttal presumption by the revision petitioner placed any cogent evidence and there is no any plausible defence by the petitioner that he repaid the money and in the absence of any repayment of money and having admitted the Cheques to the tune of Rs.2,00,000/- each which are the subject matter and also categorically admits that if any notice is sent to him in respect of the very same address and the address is correct and the same will be served. The fact that the notice was sent through RPAD and certificate of posting receipt is also not in dispute and certificate of posting is also produced and RPAD cover was returned and when he categorically admits that the address is correct and if any notice is sent and the same will be served. - 16 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 17. The very contention that notice has not been served cannot be accepted and not disputes the address mentioned. No doubt he has produced the document of exhibit D-series and the same is with respect to having made the payment. No dispute that there were transaction between the complainant and accused. The production of passport will not rebut the evidence of complainant and there is no such cogent evidence for having repaid the amount as contended and also there were a transaction between both of them and the grounds which have been urged cannot be accepted and it is settled law that only revision Court can interfere if reasoning given by both the Courts are not legal and if any perversity is found in giving such reasoning and finding, then only Court can exercise this revisional jurisdiction. No doubt counsel appearing for the petitioner relied upon the judgment of AIR 2008 SC 278 and Court has to take note of each factual aspects of the case while considering the material on record, the very rebuttal presumption - 17 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 under Section 139 of N.I Act then Court can take notice of conduct of the parties. 18. In the case on hand, no reply was given and also Cheque was not disputed and when such being the case, there is no any rebuttal and hence, the judgment relied upon by the petitioner’s counsel will not comes to the aid of petitioner. No doubt the other judgment in case of Subramani which is referred supra also with regard to the legally recoverable debt is concerned and in the present case on hand, admittedly he used to avail loan from the complainant and presumption also in favor of holder of Cheque. Though counsel contend that no source of income is concerned, if no source of income to the accused, what made him to avail the loan earlier also even to an extent of Rs.25,000/- to Rs.30,000/- and also as admittedly he availed the loan of Rs.1,00,000/- and repaid the same. No such material is placed and hence this judgment also not comes to the aid of the petitioner’s counsel. On the other hand, the counsel relied upon the - 18 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 judgment of Rangappa case as well as the judgment of Vasanthkumar case wherein discussed with regard to the presumption as well as the non-issuance of reply notice when the demand was made. Hence, these judgment are applicable to the case on hand as there is a presumption in favour of the complainant since the accused admitted the signature as well as the Cheque and though contend that the same was given in respect of earlier transaction is concerned, but no steps was taken when the Cheque was not returned and did not given any stop payment or also cause any notice to return those Cheques with regard to the earlier transaction is concerned. When such material available on record, I do not find any ground to reverse the finding of both the Courts in the absence of perversity and question of reversing the same does not arise. The order not suffers from any legality and correctness. Hence, I answer the point as Negative. - 19 - NC: 2025:KHC:3414 CRL.RP No. 225 of 2021 19. In view of the discussions made above, I pass the following:
Decision
ORDER The Revision Petition is dismissed. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 37