Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 509 (KAR)

E. K. Jagadeesh v. Y. Radhakrishna Shetty

2022-04-08

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - This revision petition is filed under Section 397 read with Section 401 of Cr.P.C., praying this Court to set aside the judgment and order dated 20.08.2013 passed in Crl.a.No.125/2011 on the file of II additional District and Sessions Judge, Davanagere and also the judgment and order of conviction and sentence dated 24.08.2011 passed in C.C.No.769/2009 by the III additional Senior Civil Judge & JMFC., Davanagere, and acquit the petitioner for an offence punishable under Section 138 of the N.I.act. 2. The factual matrix of the case of the complainant before the Trial Court is that accused Nos.1 to 4 being the partners of M/s. Itagi Medicals, Davanagere, due to the said acquaintance with the complainant in the month of January 2004, availed hand loan of Rs.1,00,000/- for their business purpose agreeing to repay the same within 2 to 3 months. On demand for re-payment, the accused has issued two post dated cheques. When the same were presented for encashment, they were returned with an endorsement as 'Insufficient Funds'. Hence, a legal notice was issued. Despite receipt of notice not paid the amount. Only accused No.4 gave an untenable reply and not complied with the demand. Hence, a complaint was filed and cognizance was taken. accused No.2 did not turn up. Hence, a split up case was registered against him. The complainant examined P.a. holder as P.W.1 and got marked the documents as Exs.P1 to P20(a and b). accused No.1 examined himself as D.W.1 and got marked the documents viz., Exs.D1 to D3. The learned Magistrate acquitted accused Nos.3 and 4 for the said offences and convicted accused No.1 to pay a sum of Rs.1,50,000/-. aggrieved by the judgment of conviction, accused No.1 filed Crl.a.No.53/2006, wherein, the judgment of conviction was set aside and the matter was remanded to the Trial Court with a direction to give an opportunity to the complainant to depose in the case as witness to prove his complaint-Ex.P18 and to adduce further evidence if any by both the sides and to dispose of the matter on merits. The said order again was challenged by the petitioner in Criminal Revision petition No.86/2007 before this Court and the same was also dismissed. In terms of the order passed by the appellate Court, the complainant was further examined as P.W.2 and got marked the documents as Exs.P1 to P20(a)(b). 313 statement was recorded. The said order again was challenged by the petitioner in Criminal Revision petition No.86/2007 before this Court and the same was also dismissed. In terms of the order passed by the appellate Court, the complainant was further examined as P.W.2 and got marked the documents as Exs.P1 to P20(a)(b). 313 statement was recorded. again the accused, the present petitioner stepped into the witness box and further examined. The Trial Court having considered the material on record afresh on merits, convicted the present petitioner. Being aggrieved by the judgment of conviction and order on sentence, an appeal is filed in Crl.a.No.125/2011 before the appellate Court. The appellate Court on re-appreciation of the material available on record dismissed the appeal. Hence, the present revision petition is filed before this Court. 3. The learned counsel appearing for the petitioner would vehemently contend that the very presumption is rebutted before the Trial Court by examining the petitioner as D.W.1 and also got marked the documents. In spite of rebuttal evidence was led, both the Courts have committed an error. The other contention is that under Section 141 of the N.I.act, Firm ought to have been made as parties to the proceedings and the same has not been done. The learned counsel also would submit that for having paid the amount, the same is not shown in the IT returns. The complainant has not relied upon any documents except the cheque amount to show that the transaction was taken place in the year 2004. The learned counsel would vehemently contend that the cheque was issued in the year 1993 and there was no any transaction in the year 2004 and the said cheque has been mis-used. 4. In support of his contentions, the learned counsel appearing for the revision petitioner relied upon the judgment of the apex Court regarding presumption is rebutted in the case of Vijay v. Laxman and another reported in 2013(3) Crimes 246 (SC), wherein, the apex Court held that, presumption raised in favour of holder of cheque does not extend to the extent that cheque was not issued for discharge of any debt or liability which is not required to be proved by complainant as this is essentially a question of fact and it is defence which has to prove that cheque was not issued towards discharge of a lawful debt. Rebuttal of presumption of debt or legally enforceable liability and the cheque must be confined to matters covered. 5. The learned counsel also relied upon the judgment of the apex Court in the case of N. Harihara Krishnan v. J. Thomas reported in aIR 2017 SC 4125 , wherein, the apex held that, offence by company, arraigning company as accused is condition precedent for their prosecution. 6. Per Contra, the learned counsel appearing for the respondent-complainant would submit that the issuance of cheque is not disputed. The documents - Exs.D1, D2 and D3, pertaining to the earlier transaction and those documents not helped to the case of the petitioner. The learned counsel would submit that both PWs.1 and 2 have categorically deposed with regard to the transaction between the petitioner and the respondent. In the cross-examination of D.W.1, he categorically admitted the capacity to lend the amount of Rs.1 Lakh by the complainant and now cannot contend that the complainant was not having capacity to lend the amount and contend that the same is not shown in the IT returns. The learned counsel also would submit that in Ex.D3, the ink used in the said document is different and there is an insertion. The petitioner categorically admitted that in the partnership firm-Itagi Medicals, he is one of the partner and admits that the case is filed against all the partners. It is also contended that the Trial Court acquitted the other accused and sentenced against him. Hence, the very contention of the learned counsel for the petitioner cannot be accepted. 7. Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent and on perusal of the material available on record, the points that would arise for consideration of this Court are: (i) Whether the Trial Court has committed an error in accepting the evidence of PWs.1 and 2 and comes to the conclusion that the petitioner has not rebutted the case of the complainant? (ii) Whether the appellate Court also committed an error in confirming the judgment of conviction and order on sentence of the Trial Court? (iii) Whether the complaint is not maintainable for not making the Firm as party to the proceedings. (iv) Whether this Court can exercise the revisional jurisdiction? (v) What order? POINT NOS.(I) TO (IV): 8. (ii) Whether the appellate Court also committed an error in confirming the judgment of conviction and order on sentence of the Trial Court? (iii) Whether the complaint is not maintainable for not making the Firm as party to the proceedings. (iv) Whether this Court can exercise the revisional jurisdiction? (v) What order? POINT NOS.(I) TO (IV): 8. Having heard the respective counsel and also the contentions raised by both the parties in the revision, this Court has to consider the material available on record. On perusal of the complaint, it discloses that the complainant has filed the complaint against the petitioner and others in their individual capacity, wherein, it is stated that the accused Nos.1 to 4 are the partners of Itagi Medicals. The complainant and accused No.1 are known to each other and specifically stated that accused No.1 was in need of money, requested the complainant to pay the amount in 2004. accused No.1 and other accused pleaded their inability and sought time and ultimately accused No.1 gave the cheque. It is not in dispute that at the first instance, the Trial Court acquitted accused Nos.3 and 4 and also a case was split up against accused No.2 and no details with regard to the status of split up case of accused No.2. The matter was also challenged in the appellate Court and remanded to the Trial Court for fresh consideration. against the said order, the revision petition was filed by the petitioner and the same was also dismissed. Thereafter, both the parties have led their evidence and the Trial Court convicted the petitioner herein. 9. The first and foremost contention of the petitioner before this Court is that the petitioner has rebutted the case of the complainant. In support of his contentions he also relied upon the judgment in Vijay's case (supra), regarding presumption is concerned; when evidence has been adduced, the cheque was not issued for discharge of any debt or liability. In the case on hand, issuance of cheque is not disputed. The only contention is that there was no any transaction in the year 2004 and the cheque was given in the year 1993 itself. No doubt, these two cheques are bearing No.40350 dated 15.10.2004 and No.40349 dated 05.10.2004, respectively, which are marked as Exs.P1 and P2. The petitioner also relies upon the document of cheque, which is marked as Ex.D1. The only contention is that there was no any transaction in the year 2004 and the cheque was given in the year 1993 itself. No doubt, these two cheques are bearing No.40350 dated 15.10.2004 and No.40349 dated 05.10.2004, respectively, which are marked as Exs.P1 and P2. The petitioner also relies upon the document of cheque, which is marked as Ex.D1. On perusal of Ex.D1 dated 20.04.1993, the same is for an amount of Rs.50,000/- and the said cheque No.40347. The learned counsel relying upon the document - Ex.D1, would vehemently contend that when Cheque No.40347 was given in the year 1993, question of issuing other two cheques bearing No.40349, 40350 in the year 2004 does not arise and also produced Ex.D3 for having received the amount. The very said contention cannot be accepted for the reason that for the entire transaction in respect of the accused is concerned, no bank statement was produced. There is nothing on record to show that whether other cheques are issued subsequent to the said date. 10. The contention of the learned counsel for the petitioner is that the cheque was given in the year 1993. No doubt, Ex.D1 is dated 20.04.1993 i.e., issued in favour of the present petitioner. But contention is that no transaction was taken place in the year 2004. But in the cross-examination, he categorically admits that the partnership Firm is having the bank account and also he relies upon the document - Ex.D3 for having paid the amount. He categorically admits that what has been mentioned in Ex.D3, not discloses from whom the amount has been received and to whom the amount was given and also he admits that the same is in different ink and there was an insertion. Though in the additional affidavit, it is contended that the complainant was not having any capacity to lend the money. But in the cross-examination, it is categorically admitted that the complainant was having capacity to lend the money. When this admission was given by D.W.1 regarding capacity is concerned, it is clear that the document - Ex.D3, placed before the Court cannot be relied upon in view of the answers elicited from the mouth of D.W.1 regarding rebuttal evidence is concerned. Only it is the contention that the cheque was given in the year 1993 and there was no any transaction. Only it is the contention that the cheque was given in the year 1993 and there was no any transaction. To substantiate this contention also, no material has been produced. No doubt, the cheque was given in the year 1993 in favour of the complainant and the same is marked as Ex.D1. What made him to issue the cheques in the year 2004, there was no explanation. When the cheques are admitted the petitioner has to rebut the same. Except the self statement that the transaction of the year 1993, not in the year 2004, nothing is rebutted. Hence, the judgment relied upon by the learned counsel for the petitioner in Vijay's case (supra), is not applicable to the case on hand. No doubt, there cannot be any presumption, if the cheque was not issued for discharge of any debt or liability. But in the case on hand, it is the specific case of the petitioner that the cheque was issued when he did not repay the amount. Hence, in order to come to the conclusion that the preponderance of probability and probable defense has been raised by the petitioner is concerned, nothing is available on record. The very contention of the learned counsel for the petitioner cannot be accepted. The other contention is that in the Income Tax returns not shown for having made the judgment also cannot be a ground when the petitioner himself admitted the capacity of the complainant in lending the money. 11. The other contention with regard to the Firm has not been arraigned as accused and the said defense is taken for the first time in the revision petition. No where in the cross-examination of P.W.1 and also in his evidence produced before the Trial Court, took up the said defense. In order to meet the said contention also, no opportunity was given to the complainant for the first time in revision, the said contention is raised. No doubt, Ex.P1, is signed by accused No.1 as Partner. But the complaint is very specific that this petitioner only approached him for financial assistance and the complainant has not stated that all of them have approached him. In paragraph No.2, it is specifically stated that accused No.1 for their business, he requested to lend the money in the year 2004. But the complaint is very specific that this petitioner only approached him for financial assistance and the complainant has not stated that all of them have approached him. In paragraph No.2, it is specifically stated that accused No.1 for their business, he requested to lend the money in the year 2004. No doubt, other averments are that they did not repay the amount and took time and already accused Nos.3 and 4 have been acquitted and the same has not been questioned. It is also admitted in the cross-examination of D.W.1 that the complainant is one of the partner of the said Firm. The complaint is also filed in the individual capacity of all the partners. When such being the case when the defense has not raised at the initial stage as well as the contents of the complaint, it is clear that this petitioner only requested the complainant to lend the money. The very contention of the petitioner cannot be accepted. The judgments of the apex Court relied upon by the learned counsel for the petitioner, are also not applicable to the facts of the case on hand in view of the specific averment made in the complaint. No doubt, while filing the complaint arraigned all the partners in their individual capacity. But it is specific that this petitioner only approached the complainant for financial assistance. Hence, the said contention also cannot be accepted. 12. The scope of revision is also very limited. I have already pointed out that both the Courts have taken note of the subject matter of the cheques, which contain the signature of the petitioner herein and even while invoking Section 141 of the N.I.act also, there must be a clear averment while making the Company as a party that the accused persons are in-charge of the affairs of the Company and the same is also not missing and the question of arraigning the partners of the Firm as parties does not arise in view of specific averments to that effect. 13. apart from that, when the cheques were admitted by this petitioner and only his defense that the cheques were given in 1993 and not in the year 2004 and the same has not been established. Hence, presumption has to be drawn in respect of the transaction is concerned. 13. apart from that, when the cheques were admitted by this petitioner and only his defense that the cheques were given in 1993 and not in the year 2004 and the same has not been established. Hence, presumption has to be drawn in respect of the transaction is concerned. The Trial Court also in paragraph No.17 taken note of the said fact into consideration and the appellate Court in the appeal in paragraph No.18 discussed that the accused has not disputed the issuance of cheque and the signature thereon. It is also the specific case of the accused that in order to discharge the liability, he had issued the cheque in question to the complainant. The appellate Court in paragraph No.15 also taken note of the admission of D.W.1, that the complainant had the capacity to advance the amount of Rs.1 Lakh and also taken note of Ex.D3, it does not disclose about the fact that from whom the loan was availed and to whom it was advanced and also there were over writings. Hence, the defense theory has not been accepted and comes to the conclusion that the case of the complainant has not been rebutted. When both the Courts have given the reasoning while convicting the petitioner based on both oral and documentary evidence placed on record, I do not find any error committed by both the courts and only this Court can exercise the revisional jurisdiction if the judgment of the Trial Court and the appellate Court contrary to the evidence available on record. If any such perverse finding is given or otherwise, the revisional jurisdiction cannot be exercised. Hence, I do not find any circumstances to interfere with the findings of both the Courts. Hence, I answer Point Nos.(i) to (iv) as 'negative'. 14. It is also the contention in the revision petition that there is an order to pay an amount of Rs.2 Lakhs and to undergo six months simple imprisonment, is unjust and no case was made out for ordering for payment of double the cheque amount. The petitioner had suffered loss in business, which lead to close the medicals in the year 1993 and the petitioner is in financial difficulty and unable to pay such huge compensation. The petitioner had suffered loss in business, which lead to close the medicals in the year 1993 and the petitioner is in financial difficulty and unable to pay such huge compensation. It has to be noted that the impugned order of conviction made by the Trial Court was passed on 24.08.2011 and it was the transaction of the year 2004, according to the complainant. Earlier also the matter was challenged and remanded to the Trial Court; against that order, the revision also filed before this Court and the same was dismissed and again Criminal appeal was filed in the second round in 2011, the same was disposed of in 2013 and almost a decade has been elapsed before this Court. 15. Having taken note of such factual aspects is concerned; it is the matter of almost two decades and question of interfering with regard to the sentence also not warranted. The very contention is that both sentence as well as fine has been imposed and the said contention also cannot be accepted and both can be imposed. Here is an order to undergo six months simple imprisonment and now it is made it as two years and taking into note of the same, the same is not harsh as contended by the learned counsel for the petitioner. But, he claims that Firm was closed in the year 1993 and he is having the financial capacity and the said ground also cannot be accepted. I have already pointed out that almost two decades have been elapsed. Regarding sentence also, I do not find any ground to interfere with the sentence. POINT NO.(V): 16. In view of the discussions made above, I pass the following: ORDER The revision petition is dismissed.