KRISHNAMURTHY M.P v. S.N. VENKATASUBBAIAH

KRISHNAMURTHY M. P., SON OF SRI PUTTAIAH, AGED ABOUT 54 YEARS, RESIDING AT NO.188/4, 3RD CROSS, KAVERIPURA, KAMAKSHIPALYA, BANGALORE - 560 079 (BY SRI. PAVAN KUMAR G., ADVOCATE) AND: ...PETITIONER S.N. VENKATASUBBAIAH, SON OF SRI S.R. NARASAPPA, AGED ABOUT 59 YEARS, RESIDING AT NO.68, 3RD MAIN, 8TH CROSS, NEW MANJUNATHA LAYOUT, KOWDENAHALLI, BANGALORE - 560 016. (BY SRI. S.B. TOTAD, ADVOCATE) ...RESPONDENT THIS CRL.RP IS FILED U/S.397(1) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE DATED 23.02.2015, PASSED IN CRL.A.NO.1120/2014 IN THE COURT OF THE FTC-XIV, BANGALORE, NOW THE COURT OF THE LXVIII ADDL. CITY CIVIL AND S.J., BANGALORE, AND SET ASIDE THE JUDGMENT AND SENTENCE DATED 15.09.2014 IN C.C.NO.10330/2012 IN THE COURT OF THE XXII A.C.M.M., BANGALORE AND ACQUIT THE PETR. OF THE OFFENCE ALLEGED AGAINST HIM. THESE PETITIONS, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2024:KHC:41494 CRL.RP No. 523 of 2015 C/W CRL.RP No. 524 of 2015 CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL ORDER Heard Sri. Pavan Kumar G., and Sri.S.B.Totad, learned counsel for the parties.

#2. These two revision petitions are arising out of the conviction passed in C.C.No.11885/2012 C.C. No.10330/2012 on the file of XXII Additional CMM, Bengaluru.

#3. Facts in brief for disposal of these revision petitions are under: Two complaints under Section 200 Cr.P.C., came to be filed by the respondent herein against the revision petitioner C.C.No.11885/2012 C.C.No.10330/2012. According to the complaint averments, complainant contended that accused is known complainant since a long time and he was running a business concern under the name and style "M/s Achu Out Door Unit" to supply generator for production units for production of serials and films. Accused said to have approached the complainant - 4 - NC: 2024:KHC:41494 CRL.RP No. 523 of 2015 C/W CRL.RP No. 524 of 2015 for a financial assistance in a sum of Rs.2,50,000/- and sum of Rs.2,00,000/- in order to meet his expenses and business expansion. In that regard, complainant has lent the said sum of Rs.2,50,000/- and Rs.2,00,000/- in all Rs.4,50,000/- to the accused with a promise that accused would return the same within a period of three months. It is also contended that despite repeated demands, accused failed to repay the amount as agreed and towards the repayment of the said amount of Rs.4,50,000/- accused said to have issued two cheques bearing Nos.076068 and 076067 dated 10.09.2011 and 19.10.2011 respectively in a sum of Rs.2,50,000/- and a sum of Rs.2,00,000/- drawn on ICICI Bank, Vijayanagar Branch, Bengaluru.

#4. Both the cheques were dishonored with an endorsement that signature of the accused did not tally. Thereafter, legal notice came to be issued, but there was no compliance which necessitated the complainant to approach the jurisdictional Magistrate for taking action against the accused for the offence punishable under Section 138 of Negotiable Instrument Act (for short 'N.I.Act'). - 5 - NC: 2024:KHC:41494 CRL.RP No. 523 of 2015 C/W CRL.RP No. 524 of 2015

#5. The learned trial Judge after considering the necessary material on record, took cognizance of the offence and summoned the accused before the trial Court. Accused entered appearance and plea was recorded. Accused pleaded not guilty therefore, trial was held.

#6. In order to prove the case of the complainant, complainant in both the cases got examined himself as P.W.1 and placed on record dishonored cheques, bank endorsement, copy of the legal notice and postal receipt respectively. In the cross-examination of P.W.1 no useful materials are elicited so as to disbelieve the case of complainant or to dislodge the probabilities available to the complainant under Section 139 of N.I.Act. Accused statement as is contemplated under Section 313 Cr.P.C., was recorded and accused has denied all the incriminatory materials. No statement under Section 313 (4) Cr.P.C., was also filed on behalf of the accused.

#7. There was no rebuttal evidence placed on record by the accused either examining him orally or by placing any documentary evidence on record. - 6 - NC: 2024:KHC:41494 CRL.RP No. 523 of 2015 C/W CRL.RP No. 524 of 2015

#8. Thereafter, learned trial Magistrate on cumulative consideration of the oral and documentary evidence on record, convicted the accused in both the cases.

#9. Operative portion of the orders passed by the learned trial Magistrate reads as under: "In C.C.No.11885/2012 Acting u/s 255(2) of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs.2,55,000/- (Two lakhs Fifty five thousand only). If fine is realized, pay a sum of Rs.2,50,000/- (Two lakhs Fifty thousand only) to the complainant as compensation, the same shall be paid to him within the period of 30 dyas. The rest of the amount Rs.5,000/- (Five thousand only) is ordered to be adjusted to the State Exchequer. In default of payment of this compensation simple shall undergo amount, imprisonment for one year. the accused Office is directed to furnish the copy of this Judgment at free of cost to the accused. In C.C.No.10330/2012 Acting u/s 255(2) of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs.2,05,000/- (Two lakhs five thousand only). If fine is realized, pay a sum of Rs.2,00,000/- complainant as lakhs only) (Two - 7 - NC: 2024:KHC:41494 CRL.RP No. 523 of 2015 C/W CRL.RP No. 524 of 2015 compensation, the same shall be paid to him within the period of 30 dyas. The rest of the amount Rs.5,000/- (Five thousand only) is ordered to be adjusted to the State Exchequer. In default of payment of this compensation simple shall undergo the accused amount, imprisonment for one year. Office is directed to furnish the copy of this Judgment at free of cost to the accused."

#10. Being aggrieved by the same, accused preferred appeals before the First Appellate Court in Crl.A.No.1119/2014 and Crl.A.No.1120/2014 respectively.

#11. The learned Judge in the First Appellate Court in both the Courts, secured records and after hearing the parties in detail, dismissed the appeals filed by the accused and confirmed the order of conviction.

#12. Being further aggrieved by the same, accused is before this Court in this revision.

#13. Learned counsel revision petitioner Sri. Pavan Kumar G., vehemently contended that learned trial Magistrate failed to consider the effect of cross-examination of P.W.1 which was sufficient enough to revert the presumption - 8 - NC: 2024:KHC:41494 CRL.RP No. 523 of 2015 C/W CRL.RP No. 524 of 2015 available to the complainant under Section 139 Cr.P.C., and when material evidence on record is sufficient enough to dislodge the presumption, there is no rule that accused must be examined before the Court which has been not properly appreciated by the learned Magistrate and learned Judge in the I Appellate Court and sought for allowing the revision petitions.

#14. Per contra, Sri.S.B.Totad, learned counsel for the respondent supports the impugned judgment by contending that signature in cheques has not been denied by the accused and if it is the case of the accused that the cheques have been misused, positive action should have been taken by the accused. Non taking any such action exposes the hollowness in the case of the revision petitioner and sought for dismissal of the revision petitions.

#15. Having heard the parties, this Court perused the materials on records meticulously. On such perusal of the material on records, there is no dispute that cheques marked in both the cases at Ex.P.1 is not in dispute that it belongs to the accused. No doubt cheques have been dishonored with an endorsement that signature of the accused in the cheques do - 9 - NC: 2024:KHC:41494 CRL.RP No. 523 of 2015 C/W CRL.RP No. 524 of 2015 not tally with the specimen signature maintained by the banker of the accused.

#16. However, that would not by itself be enough to say that the accused has not issued the cheques. If the accused has disputed the signature before the Court, then the cheques should have been sent for examination by the hand writing expert.

#17. The trend of cross-examination which has been emphatically relied on by the learned counsel for revision petitioner would go to show that accused and the complainant are strangers. No doubt the complainant has admitted in his cross-examination that accused in not personally known to him but he is known to his brother. The case that has been sought to be made out by the accused in the cross-examination would go to show that there is a common friend by name Rudramurthy who was known to the brother of the complainant and the accused who has been instrumental in misuse of the cheques.

#18. Admittedly accused did not step into the witness box to establish the said aspect of the matter nor cited - 10 - NC: 2024:KHC:41494 CRL.RP No. 523 of 2015 C/W CRL.RP No. 524 of 2015 Sri. Rudramurthy as a witness on his behalf. Further, when there is issuance of cheques and there was no reply to the legal notice, the burden is always on the accused to establish as to the fact that how Ex.P.1 cheques has reached the hands of the complainant especially when accused has contended that complainant is a stranger.

#19. Further the conduct of the accused in this regard is also to be noted in as much as if the said cheques have been misused as per the contentions taken by the accused before the trial Magistrate, atleast after his appearance before the trial Magistrate when he had the services of an advocate, he would have taken some positive action in filing a private complaint before the very same Magistrate about the misuse of the cheques or atleast by issuing legal notice or taking such other action against the complainant. No such effort has been made by the accused till date.

#20. No normal prudent person would keep quiet if the valuable consideration in a sum of Rs.4,50,000/- in the form of cheque is misused. - 11 - NC: 2024:KHC:41494 CRL.RP No. 523 of 2015 C/W CRL.RP No. 524 of 2015

#21. Therefore, inaction on the part of the accused in this regard is a significant factor while appreciating the case in totality. No doubt the admission has been made in the cross- examination the accused is not liable to pay the amount and therefore, accused need not have to pay. But when the cross- examination in toto is read, except that the trial Magistrate has recorded full stop that there is no amount payable by the accused and therefore no amount was payable under the cheques, which is a typographical error, as there is a specific averment made in the examination-in-chief and the entire cross-examination, that accused is liable to pay the cheque amount. It is apparent that there is a clear demand by the complainant to pay the amount covered under the cheques. Such a typographical error cannot be taken as an advantage by the accused that too in the revisional Court. Therefore, revision grounds are merit less. In view of the forgoing discussion, I pass the following: - 12 - NC: 2024:KHC:41494 CRL.RP No. 523 of 2015 C/W CRL.RP No. 524 of 2015 ORDER Criminal Revision Petitions are merit less and hereby dismissed. No order as to cost. Sd/- (V SRISHANANDA) JUDGE GPG List No.: 1 Sl No.: 51 CT: BHK