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2023 DIGILAW 186 (KAR)

Umesh B C v. N Bojaraju

2023-02-01

R.NATARAJ

body2023
JUDGMENT/ORDER 1. The petitioner has challenged the judgment of conviction dtd. 12/3/2015 passed by the XXI Addl. Chief Metropolitan Magistrate, Bengaluru, (henceforth referred to as 'Trial Court' for short) in C.C.No.8700/2013 for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 and consequent sentence to pay fine of Rs.8, 10, 000.00. The petitioner has also called in question the judgment dtd. 4/12/2015 passed by the LIX Addl. City Civil and Sessions Judge, Bengaluru (henceforth referred to as 'Appellate Court' for short) in Crl.A.No.595/2015 by which, the judgment of conviction passed by the Trial Court was upheld. 2. The parties shall henceforth be referred to as they were arraigned before the Trial Court. The petitioner was the accused and the respondent was the complainant. 3. The records disclose that the complainant and the accused were known to each other and out of such acquaintance, the accused requested the complainant for a hand loan of Rs.8, 00, 000.00 on 15/7/2012. The complainant sensing the request of the accused to be just, agreed to pay and accordingly, paid a sum of Rs.8, 00, 000.00 on 18/7/2012. The accused had executed an on demand promissory note and consideration receipt in favour of the complainant and passed on a post dated cheque bearing No.120349 dtd. 18/10/2012 for a sum of Rs.8, 00, 000.00 drawn on Corporation Bank, Bengaluru. The said cheque was presented as instructed by the accused. However, it was dishonoured due to insufficient funds on 5/11/2012. The complainant approached the accused and demanded the payment. However, the accused did not pay the amount, which compelled the complainant to cause a notice of demand on 15/11/2012. The notice was served on 17/11/2012, but the accused did not reply nor repay the amount payable under the cheque. The complainant therefore, initiated steps to prosecute the accused for the offence punishable under Sec. 138 of the Negotiable Instruments Act. 4. The Trial Court recorded the pre-summons evidence of the complainant and registered C.C.No.8700/2013 and issued process to the accused and secured his presence. He was released on bail. The substance of the accusation was read over to the accused, who pleaded not guilty and claimed to be tried. 4. The Trial Court recorded the pre-summons evidence of the complainant and registered C.C.No.8700/2013 and issued process to the accused and secured his presence. He was released on bail. The substance of the accusation was read over to the accused, who pleaded not guilty and claimed to be tried. The complainant was examined as PW.1 and he examined the Manager of Corporation Bank as PW.2 and a witness, in whose presence he paid Rs.8, 00, 000.00 to the accused as PW.3 and the Chief Manager of Corporation Bank as PW.4. The complainant marked Exs.P1 to P7. The statement of the accused under Sec. 313 of Cr.P.C. was recorded and he denied the incriminating evidence against him. He was examined as DW.1. 5. Based on the oral and documentary evidence, the Trial Court held that the accused was unable to establish his defence that he did not know the complainant and that his brother-in-law had raised a loan from the complainant and that he had given the cheque in question as security for the loan raised by his brother-in-law. He also failed to establish his defence that he used to affix the signatures on the cheque leafs in Kannada and not in English. In order to discredit the testimony of the accused, the complainant examined PW.2 and PW.4, who were the Manager and Chief Manager of Corporation Bank, from where the cheque in question was issued and both of them deposed that the signature on the cheque in question belonged to the accused. The Trial Court held that since the accused claimed that the cheque in question was given as security for a loan raised by his brother-in-law from the complainant, the signature found thereon was indeed the signature of the accused. In view of the above, the Trial Court held that the accused had failed to rebut the presumption under Sec. 139 of the Negotiable Instruments Act and since the cheque in question was dishonoured due to insufficient funds, the accused had committed an offence punishable under Sec. 138 of the Negotiable Instruments Act and consequently, convicted him for the said offence and sentenced him to pay fine of Rs.8, 10, 000.00. 6. Being aggrieved by the said judgment, the accused filed Crl.A.No.595/2015, which too was dismissed. 7. Being aggrieved by the judgments of both the Courts, the present revision petition is filed. 8. 6. Being aggrieved by the said judgment, the accused filed Crl.A.No.595/2015, which too was dismissed. 7. Being aggrieved by the judgments of both the Courts, the present revision petition is filed. 8. Learned counsel for the petitioner/accused submitted that the complainant had claimed that the accused had executed an on demand promissory note and therefore, the cheque in question, even if it is drawn by the accused, could be considered as given for the purpose of security and therefore, could not be encashed. Consequently, the dishonour of the said cheque cannot be construed as constituting an offence under Sec. 138 of the Negotiable Instruments Act. He submitted that except the self-serving statement of the complainant that he had advanced a hand loan of Rs.8, 00, 000.00, he did not produce any documents to establish his financial capacity. 9. Per contra, the learned counsel for the respondent/complainant submitted that the cheque in question was drawn from the account of the accused and the signature thereon was affixed by the accused, which was evident from his defence that the cheque was given as security for loan raised by his brother-in-law from the complainant. He submitted that the defence of the accused that the signature on the cheque was not affixed by him, was frivolous in view of the evidence of PW.2 and PW.4, who were the Manager and Chief Manager of the Corporation Bank, who admitted that the signature found on the cheque belonged to the accused. The learned counsel invited the attention of the Court to Ex.P7, which contained the specimen signature of the accused in the account opening form and contended that the accused had taken a false defence. Learned counsel therefore, contended that the Trial Court and the Appellate Court have rightly appreciated the evidence on record and had rightly convicted the accused for the offence punishable under Sec. 138 of the Negotiable Instruments Act. 10. I have considered the submissions made by the learned counsel for the petitioner/accused as well as the learned counsel for the respondent/complainant. I have also perused the records of the Trial Court, its judgment as well as the judgment of the Appellate Court. 11. The accused did not dispute the fact that the cheque in question was drawn from his account at Corporation Bank. I have also perused the records of the Trial Court, its judgment as well as the judgment of the Appellate Court. 11. The accused did not dispute the fact that the cheque in question was drawn from his account at Corporation Bank. Though he initially claimed that the signature found on the cheque did not belong to him as he used to affix his signature in Kannada, the falsity of it was exposed when the accused was cross-examined, where he admitted that his specimen signature in the account opening form was made in English. Further, the falsity of the defence of the accused was exposed when he claimed that the cheque in question was given as security for a hand loan raised by his brother-in-law from the complainant, meaning thereby that the signature found on the cheque belonged to him. The accused did not examine his brother-in-law and did not produce any material to show that his brother-in-law had repaid the loan to the complainant. The accused therefore, failed to rebut the presumption under Sec. 139 of the Negotiable Instruments Act and therefore, the Trial Court and the Appellate Court were justified in convicting the accused for an offence punishable under Sec. 138 of the Negotiable Instruments Act. There is no error apparent on the face of the record warranting interference of this Court in a revision petition. Hence, this revision petition lacks merit and is dismissed. The amount in deposit by the petitioner/accused before this Court/Trial Court/Appellate Court shall be released in favour of the respondent/complainant. The Registry is directed to forthwith return the Trial Court as well as the Appellate Court records.