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2023 DIGILAW 180 (KAR)

M Jayanna v. H E Kumar

2023-02-01

R.NATARAJ

body2023
JUDGMENT/ORDER 1. There is no representation for the petitioner, though it was called thrice. This Court had given adequate time to either report settlement or to proceed with the matter, failing which, the petition would be taken up for disposal based on the material available on record. 2. This revision petition is filed challenging the judgment of conviction dtd. 3/11/2014 passed by the Additional Civil Judge and JMFC, Holenarasipura in C.C.No.215/2011 convicting him for the offence punishable under Sec. 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act, 1881' for short) and the consequent sentence to pay a fine of Rs.3, 50, 000.00. The gravamen of the case of the respondent was that the petitioner availed a hand loan of Rs.1, 75, 000.00 from the respondent and promised to repay the same within two months. The petitioner passed on a cheque for the said sum on the same day and assured to repay the same by the day marked on the cheque. However, the cheque when presented on the day marked on it, was dishonoured due to insufficient funds in the account of the petitioner. The respondent therefore issued a notice of demand, which was not claimed by the petitioner. The petitioner made no attempt to repay the amount payable under the cheque, which prompted the respondent to initiate prosecution of the petitioner for the offence punishable under Sec. 138 of NI Act, 1881. 3. The trial Court recorded the sworn statement of the respondent and registered C.C.No.215/2011 and issued process to the petitioner. The petitioner entered appearance and was released on bail. The plea of the petitioner was recorded and he pleaded not guilty and claimed to be tried. The respondent was examined as PW.1 and he marked Exs.P1 to P7. The statement of the petitioner was recorded under Sec. 313 of Cr.P.C. and he denied the incriminating evidence against him. He led his evidence as DW.1 but did not mark any document in defence. Based on the oral and documentary evidence, the trial Court held that the petitioner admitted his signature found on the cheque and also the fact that the cheque was drawn from his account and therefore, the presumption under Sec. 139 of the NI Act, 1881 deserved to be drawn against the petitioner. It held that the petitioner did not raise any probable defence to rebut such presumption. It held that the petitioner did not raise any probable defence to rebut such presumption. It considered the defence of the petitioner that he had availed a loan from State Bank of India, Holenarasipura Branch and that the respondent stood surety for the said loan and that the petitioner had issued the cheque in question for that transaction. Since the petitioner did not produce any material in that regard, the trial Court held that the defence set up by the petitioner was improbable and farfetched and thus, held that the respondent had proved the guilt of the petitioner. Consequently, it convicted him for the said offence and sentenced him to pay fine of Rs.3, 50, 000.00. An appeal preferred by the petitioner before the Sessions Court in Crl.A.No.167/2014 was dismissed in terms of the judgment dtd. 1/8/2016. 4. Being aggrieved by the same, the present revision petition is filed. 5. One of the grounds urged in the revision petition is that the financial ability of the respondent was doubtful as he was only a primary school teacher. It is also claimed that the cheque in question was given as surety at the time of raising a loan from State Bank of India, Holenarasipura Branch. It was also claimed that the respondent had availed a loan of Rs.11, 000.00 from the petitioner and that the respondent had passed on a cheque for Rs.11, 000.00, which was dishonoured and resulted in a case which ended in a compromise. It is contended that the respondent has now taken advantage of the blank cheque given to him, when he stood surety for a loan availed by the petitioner from State Bank of India, to launch the present prosecution. It is therefore contended that the respondent did not make out a legally enforceable debt and that the cheque in question was drawn towards discharge of such debt. 6. The contentions urged by the petitioner in this revision petition deserves to be dismissed on more grounds than one. First of all, the petitioner did not choose to reply to the notice of demand issued by the respondent. The petitioner being a prudent man, ought to have set out his defence immediately on being notified about the dishonour of the cheque. First of all, the petitioner did not choose to reply to the notice of demand issued by the respondent. The petitioner being a prudent man, ought to have set out his defence immediately on being notified about the dishonour of the cheque. Secondly, he did not place on record any material to establish that he had raised a loan from State Bank of India, Holenarasipura Branch and that the cheque in question was one the cheques given to respondent who stood surety. Thirdly, the petitioner has not explained the circumstances under which the cheque in question reached the hands of the respondent. Fourthly, if there was a transaction between the petitioner and the respondent relating to a sum of Rs.11, 000.00, then it is improbable as to how the cheque in question reached the respondent. Fifthly, he did not place on record any material to establish the contention that the cheque handed over by the respondent for a sum of Rs.11, 000.00 was dishonoured and was ultimately settled. Except the self serving statement of the petitioner that this cheque was given as security at the time of availing a loan from State Bank of India, the petitioner did nothing to establish that fact. 7. Having regard to the fact that the petitioner did admit his signature on the cheque in question and also the fact that the cheque was drawn from his account, the trial Court and the Appellate Court were justified in holding that the respondent had proved that the petitioner had committed an offence punishable under Sec. 138 of NI Act, 1881. 8. There is no error apparent on the face of the record warranting interference by this Court. Hence, the revision petition lacks merit and is dismissed.