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2023 DIGILAW 392 (KAR)

R. Premkumar v. Ramesh Chand Bafna

2023-03-07

S.VISHWAJITH SHETTY

body2023
JUDGMENT/ORDER 1. This criminal revision petition is filed by the accused challenging the judgment and order of conviction and sentence dtd. 4/3/2016 passed by the Court of XX Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.No.5975/2013 and the judgment and order dtd. 10/4/2017 passed by the Court of XLVIII Addl. City Civil & Sessions Judge, Bengaluru, in Crl.A.No.365/2016. 2. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent. 3. During the pendency of this revision petition, the original petitioner/accused had died and his sons have come on record as his legal representatives. 4. The original petitioner was charged for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') before the Trial Court. The respondent/complainant had filed a private complaint against the original petitioner under Sec. 200 Cr.PC alleging that the petitioner had borrowed a sum of Rs.2, 80, 000.00 from him towards his financial necessities on 21/8/2012 and towards repayment of the said amount, he had issued a cheque bearing No.199572 dtd. 26/12/2012 drawn on State Bank of India, Jayanagar Branch, Bengaluru and the said cheque on presentation for realization was dishonoured on the ground 'funds insufficient'. On receipt of the banker's memo to the said effect, the respondent/complainant had got issued a legal notice to the petitioner which was duly served on him and inspite of the same, he had not paid the amount as demanded in the said notice nor he had replied to the said notice. It is under these circumstances, the respondent had filed the private complaint against the petitioner for the offence under Sec. 138 of the Act. 5. In the said proceedings, the petitioner appeared before the Trial Court and pleaded not guilty, and therefore, in order to prove his case, the respondent/complainant had examined himself as PW-1 and got marked 7 documents as Exs.P-1 to P-7. The petitioner who had denied the incriminating circumstances against him available on record in his statement under Sec. 313 Cr.PC, also led defence evidence and examined himself as DW-1 and got marked two documents as Exs.D-1 & D-2. It is the specific defence of the petitioner that he had availed a loan of Rs.8.00 lakhs from the respondent for purchasing two lorries and during the course of the said transaction, he had issued three cheques as security to the respondent. It is the specific defence of the petitioner that he had availed a loan of Rs.8.00 lakhs from the respondent for purchasing two lorries and during the course of the said transaction, he had issued three cheques as security to the respondent. It is also his specific case that since he had not paid the loan dues borrowed by him from the respondent for purchase of lorries, the respondent had seized the lorries and brought the same for sale and one of the cheques issued towards security was misused by the respondent. The Trial Court after hearing the arguments addressed on both sides by its judgment and order dtd. 4/3/2016 had convicted the petitioner for the offence under Sec. 138 and sentenced him to pay fine of Rs.4, 10, 000.00 and in default to undergo simple imprisonment for a period of three months. The appeal filed by the petitioner against the said judgment and order of conviction and sentence was dismissed by the Appellate Court on 10/4/2017, and therefore, the petitioner is before this Court. 6. Learned Counsel for the petitioner submits that it is highly improbable that the respondent who is a financier would have given a hand loan to the petitioner, who was a defaulter in the earlier loan transaction. He submits that the second loan transaction is not supported by any document except Ex.P-1 - cheque in question. He also submits that a stray statement during the cross-examination of PW-1 cannot itself prove the issuance of cheque by the petitioner. He submits that since the original accused is dead, his legal representatives are not liable to pay the fine or undergo default sentence though they have a right to challenge the order of conviction passed against the accused. He, accordingly, prays to allow the petition. 7. Per contra, learned Counsel for the respondent has argued in support of the impugned judgment and order of conviction and sentence passed by the courts below and submits that the courts below after appreciating the oral and documentary evidence available on record, have found the petitioner guilty of the alleged offence and such a concurrent finding recorded by the courts below cannot be interfered by this Court in exercise of its revisional powers unless it is proved that the judgment and order suffers from perversity or illegality. He, accordingly, prays to dismiss the petition. 8. He, accordingly, prays to dismiss the petition. 8. The respondent/complainant in order to prove his case before the Trial Court had examined himself as PW-1 and got marked the cheque in question as Ex.P-1 and the signature of the petitioner in the said cheque was marked as Ex.P-1(a). The legal notice issued to the petitioner was marked as Ex.P-3 and the postal acknowledgment wherein the signature of the petitioner was found for having received the said legal notice is marked was Ex.P-5. Ex.P-7 is Form no.30 signed by the petitioner for sale of the lorries which were seized by the respondent and the signature of the petitioner in the said document was marked as Ex.P-7(a). The petitioner has not seriously disputed the writings found in the cheque and also the signature found in the said cheque. It is also not disputed that the cheque has been drawn from the account of the petitioner maintained by him in a scheduled bank, and therefore, there is a presumption against the petitioner under Sec. 139 of the Act that the instrument has been drawn by the petitioner towards discharge of his legally recoverable debt. Unless the petitioner/accused rebuts such presumption, he is liable to be punished for the offence under Sec. 138 of the Act. 9. The petitioner has taken a specific defence that the cheque in question was issued as security towards the loan transaction which he had availed from the respondent in the year 2011. However, during the course of his cross- examination, the petitioner who was examined as DW-1 has stated that he had gone to the office of the respondent on 26/12/2012 and handed over the cheque in question to him. Though he has tried to clarify that the said cheque was issued not towards repayment of the amount borrowed by him, but towards the transaction in respect of the two lorries, the said explanation does not inspire the confidence of the court. The lorries in question were brought for sale prior to 26/12/2012 and the same is evident from Ex.P-7 - Form no.30 which is dtd. 20/12/2012. The lorries in question were brought for sale prior to 26/12/2012 and the same is evident from Ex.P-7 - Form no.30 which is dtd. 20/12/2012. Therefore, as on the date of the petitioner handing over the cheque in question to the respondent, the lorries were already brought for sale and it is the specific case of the petitioner that the proceeds of the sale were adjusted by the respondent towards the loan due by him, and therefore, there was no occasion for the petitioner to hand over the cheque on 26/12/2012 towards repayment of the dues with regard to the loan transaction in respect of the lorries. 10. Further, undisputedly, the petitioner had received the legal notice issued by the respondent calling upon him to pay the amount covered under the cheque which was issued by him towards repayment of hand loan of Rs.2, 80, 000.00 borrowed in the month of August 2012. Inspite of receipt of the legal notice, the petitioner did not choose to reply the same. If the respondent had misused the cheques which were given as security, the petitioner could have given a suitable reply to the legal notice issued to him. After the cheque in question was dishonoured by his banker, non-issuance of the reply remains unexplained, and therefore, an adverse inference would have to be drawn against the petitioner. Further, even according to the petitioner, he had issued three blank cheques to the respondent under the loan transactions which he had availed for the purpose of purchasing of lorries. Even if it is assumed that one of the cheques has been misused by the respondent, undisputedly no action has been taken by the petitioner against the respondent in respect of the two other cheques which according to the petitioner is in the custody of the respondent. Therefore, I am of the considered view that the defence put forward by the petitioner is not a probable defence and as a result, the presumption under Sec. 139 of the Act was not rebutted by the petitioner. 11. Therefore, I am of the considered view that the defence put forward by the petitioner is not a probable defence and as a result, the presumption under Sec. 139 of the Act was not rebutted by the petitioner. 11. The submission made by the learned Counsel for the petitioner with regard to the liability of the legal representatives to pay the fine imposed by the courts below or to undergo default sentence, is not required to be considered by this Court at this stage and it is always open to the petitioner to raise such a contention in the event the complainant seeks to execute the order of sentence passed by the courts below against the legal representatives of the accused. 12. The Trial Court as well as the Appellate Court after appreciation of oral and documentary evidence available on record have recorded a concurrent finding of guilt against the petitioner and have convicted him for the offence under Sec. 138 of the Act. I am of the considered view that the impugned judgment and order of conviction and sentence passed by the courts below are well reasoned and sound and do not suffer from any illegality or irregularity which calls for interference by this Court. Accordingly, I find no merit in this revision petition and the same is, therefore, dismissed. 13. The amount, if any, deposited by the original accused shall be refunded to the complainant.