The High Court
Case Details
- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.999 OF 2016 BETWEEN: SRI KAYAMADA.N.KARIYAPPA S/O LATE NANJAPPA, AGED ABOUT 42 YEARS, R/OF THINDLU MAIN ROAD, K.V.K.TIMBER, VIDYARANYAPURA, BANGALORE-560090 (BY SMT.ARCHANA.K.M, AMICUS CURIAE) ...PETITIONER AND: SRI.M.A.UTHAPPA S/O LATE ACHAPPA AGED ABOUT 67 YEARS, R/OF M.B.HOUSE, NALVATHOKALU VILLAGE, VIRAJPET TALUK KODAGU DISTRICT-571218 …RESPONDENT (BY SRI.K.S.BHEEMAIAH, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 19.10.2015 IN C.C.NO.767/2012 PASSED BY THE CIVIL JUDGE AND J.M.F.C., VIRAJPET, CONVICTING AND SENTENCING THE PETITITONER TO UNDERGO SIMPLE IMPRISONMENT FOR A TERM OF SIX MONTHS AND TO PAY A FINE OF RS.5,000/- AND IN DEFAULT TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 3 MONTHS AND TO PAY COMPENSATION OF RS.4,50,000/- AND - 2 -
Legal Reasoning
THE JUDGMENT DATED 7.06.2016 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, KODAGU-MADIKERI, SITTING AT VIRAJPET IN CRL.A.NO.39/2015 CONFIRMING THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE CIVIL JUDGE AND J.M.F.C., VIRAJPET THEREBY ALLOWING THIS THE C.C.NO.767/2012 FILED BY THE RESPONDENT WITH COSTS. CONSEQUENTLY DISMISSING PETITION THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 24.04.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI CAV ORDER In this petition filed under Section 397 r/w 401 Cr.P.C, accused has challenged his conviction and sentence for the offence punishable under Section 138 of Negotiable Instruments Act ('N.I Act' for short). 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. Complainant filed the complaint under Section 200 Cr.P.C against the accused alleging that he and accused are known to each other since many years. During the first week of April 2009, accused requested for financial help of ₹4,25,000/-, to meet his financial emergency and promised to repay the same within short time. Accordingly, - 3 - complainant paid a sum of ₹2,50,000/- through cheque and balance of ₹1,75,000 by way of cash. Though initially accused went on postponing repayment, on 30.12.2011, he issued cheque for ₹4,25,000/- with an assurance of payment on presentation. However, when complainant presented the cheque to the bank through his account, it was dishonoured for want of sufficient funds. In this regard complainant got issued legal notice dated 11.01.2012. It was returned for 'Want of correct address'. Therefore, complainant served the legal notice to the accused personally on 28.01.2012. Accused has neither paid the amount due nor sent any reply and hence, the complaint. 4. After due service of summons, accused appeared and contested the case. He pleaded not guilty and claimed trial. 5. In order to prove the allegations against accused, complainant examined himself as PW-1 and got marked Exs.P1 to 6. - 4 - 6. During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence led by the complainant. 7. Accused has also given evidence as DW-1. He also examined one witness as DW-2. However, since he is not tendered for cross-examination, his evidence came to be discarded by the trial Court. 8. The trial Court on appreciation of oral and documentary evidence led by both parties, accepted the case of the complainant and convicted the accused and sentenced to pay fine of ₹5,000/- and compensation in a sum of ₹4,50,000/- with the default sentence. 9. Aggrieved by the same, accused approached the Sessions Court in Crl.A.No.39/2015. It also came to be dismissed by confirming the judgment and order of the trial Court. 10. Aggrieved by the concurrent findings of the trial Court and Session Court, accused has filed this revision petition, contending that the judgment and order of the trial - 5 - Court and Sessions Court are illegal, arbitrary and capricious. They are liable to be set aside. Both Courts have failed to appreciate that accused has borrowed only a sum of ₹2,50,000/- which was paid to him through cheque. Out of this, he has repaid ₹1,40,000/- and due to pay was only ₹1,10,000/-. At the time of borrowing loan of ₹2,50,000/-, accused had given three blank cheques by way of security. Misusing one of them, complainant has filed this complaint. 10.1 Complainant has not proved the existence of a legally enforceable debt or liability. Unless and until he prove the same, presumption under Section 118 and 139 of the N.I Act is not attracted. The Courts below have not assessed the evidence placed on record in right perspective and therefore their findings are perverse. During the dependency of proceedings before the trial Court, the parties arrived at a settlement for ₹3 lakhs and before the settlement, accused has paid ₹50,000/- in cash to the complainant. 11. On the other hand supporting the impugned judgment and order passed by the Courts below, the - 6 - learned counsel for complainant would submit that having regard to the fact that the cheque in question is drawn on the account of the accused and it bears his signature and on presentation, it was dishonoured for want of sufficient funds, the presumption under Section 139 of N.I Act is operating in favour of the complainant, placing the initial burden on the accused to rebut the same by establishing that the cheque was not issued towards repayment of any legally recoverable debt or liability. Only after that the burden would shift on the complainant to prove his case. He would further submit that complainant has proved the basic facts to enable the shifting of burden on the accused, but accused has failed to rebut the presumption and therefore both trial Court and Sessions Court are justified in convicting and sentencing in him and pray to dismiss the petition. 12. Heard arguments and perused the record.
Legal Reasoning
13. As rightly submitted by the learned counsel for accused, having regard to the fact that the cheque is drawn on the account of accused and it bears his signature and on - 7 - presentation, it is dishonoured for want of sufficient funds and legal notice is duly served on the accused, presumption under Section 139 of N.I Act is operating in favour of the complainant, placing the initial burden on the accused to rebut the same. The defence taken by the accused is that he has borrowed only a sum of ₹2,50,000/- which was paid to him by the complainant through cheque and at that time he had taken three blank signed cheques. The accused has also claimed that complainant is running a finance business and he has repaid a total sum of ₹1,40,000/- to the complainant in cash in 14 instalments of ₹10,000/- each. Admittedly, accused has not received any receipts for having paid 14 instalments of ₹10,000/- each. In fact, he has claimed that complainant is having a finance office opposite to Chandrika hotel, Vasanthnagar and some of the payments were made to an employee working there. If at all complainant is running a finance and also employed persons to manage the same, it would be reasonable to expect the accused to collect receipts for having made the payment. If the complainant was not issuing receipts for having received the payments, there was no impediment for - 8 - the accused to pay the said amount through cheques or account transfer to the account of complainant. 14. In fact, accused choose examine one C Umesh as DW-2 and he has stated that the complainant is running a finance business, opposite to Chandrika Hotel, Vasanthnagar and loan taken by complainant was only ₹2,50,000/- and out of it he has repaid ₹1,40,000/- by way of cash in instalments at ₹10,000 each/-. However, accused has not chosen to tender him for cross-examination. As a result, the testimony of DW-2 is discarded. Consequently, except the interested testimony of accused, there is nothing on record to prove that the loan borrowed by accused was only ₹2,50,000/- and out of it he has already repaid ₹1,40,000/. Admittedly, accused has also not instructed the bank to stop payment of the cheques issued to the complainant. 15. In the light of the same, the trial Court as well as the Sessions Court are justified in not accepting the defence of the accused and on the other hand, accepting the case of the complainant and convicting and sentencing - 9 - him. There is no perversity in the conclusions arrived at and findings given by them, calling for interference by this Court. In the result, petition fails and accordingly the following:
Decision
ORDER (i) Petition filed by the accused under Section 397 r/w 401 Cr.P.C is hereby dismissed. (ii) The impugned judgment and order dated 19.10.2015 in C.C.No.767/2012 on the file of Civil Judge and JMFC, Virajpet and judgment and order dated 07.06.2016 in Crl.A.No.39/2015 on the file of II Addl. District and Sessions Judge, Kodagu- Madikeri, sitting at Virajpet are confirmed. (iii) The Registry is directed to send back the trial court and Sessions Court records along with copy of this order forthwith. In view of disposal of the petition, pending application/s, if any, stands disposed off, as no separate order is required. - 10 - Appreciation is placed on record for the valuable assistance rendered by the learned Amicus Curiae representing the respondents/accused. The fees of learned Amicus Curiae is fixed at Rs.5,000/-. The High Court Legal Services Committee is directed to pay the same. SD/- (J.M.KHAZI) JUDGE RR