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2023 DIGILAW 564 (KAR)

T. G. Ramamurthy v. Ramanjinappa

2023-04-05

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. 7/5/2014 passed by the XVIII Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.No.28496/2000 and the judgment and order dtd. 23/12/2014 passed by the Fast Track Court-V, Bengaluru, in Crl.A.No.558/2014. 2. Heard the learned Counsel for the parties and also perused the material available on record. 3. Facts leading to filing of this revision petition narrated briefly are, the respondent-complainant had filed a private complaint against the petitioner under Sec. 200 Cr.PC for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'), contending that the petitioner had borrowed a sum of Rs.2, 25, 000.00 from the respondent for the purpose of constructing a building. Towards discharge of the said amount of Rs.2, 25, 000.00, the petitioner had issued a cheque on 11/10/1999 in favour of the respondent for the aforesaid amount of Rs.2, 25, 000.00, and on presentation of the said cheque for realization, the same was dishonoured with a banker's endorsement 'funds insufficient'. The complainant, thereafter, issued legal notice in compliance of Sec. 138(b) of the Act and since the petitioner had failed to pay the amount covered under the cheque in question inspite of service of notice, a private complaint was filed against the petitioner for the offence under Sec. 138 of the Act. 4. In the said proceedings, the petitioner had appeared before the Trial Court and pleaded not guilty. The complainant, therefore, examined himself as PW-1 and got marked eight documents as Exs.P-1 to P-8. The petitioner who had denied the incriminating circumstances available against him on record during the course of his statement under Sec. 313 Cr.PC, had examined himself as DW-1 in support of his defence and also got marked two documents as Exs.D-1 & D-2. The handwriting expert was examined by the Trial Court as CW-1. The Trial Court by its judgment and order dtd. 7/5/2014 convicted the petitioner for the offence under Sec. 138 of the Act and sentenced him to pay fine of Rs.2, 50, 000.00 and in default to undergo simple imprisonment for a period of one year. The said judgment and order passed by the Trial Court was upheld in Crl.A.No.558/2014 by the Appellate Court on 23/12/2014. It is in this factual background, the petitioner has approached this Court in this revision petition. The said judgment and order passed by the Trial Court was upheld in Crl.A.No.558/2014 by the Appellate Court on 23/12/2014. It is in this factual background, the petitioner has approached this Court in this revision petition. 5. Learned Counsel for the petitioner submits that the courts below were not justified in convicting the petitioner for the alleged offence. The petitioner has raised a probable defence before the Trial Court which has not been properly appreciated by the courts below, and accordingly, erred in convicting the petitioner for the alleged offence. 6. 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 prays to dismiss the petition. 7. The complainant, in order to substantiate his case had examined himself as PW-1 and had got marked eight documents as Exs.P-1 to P-8. Ex.P-1 is the cheque in question which was issued by the petitioner for a sum of Rs.2, 25, 000.00. Ex.P-4 is the copy of the statutory notice issued under Sec. 138(b) of the Act and Ex.P-7 is the postal acknowledgment which would show that the petitioner had received the said notice. The petitioner has not seriously disputed the signature found in the cheque in question. Undisputedly, the cheque in question is issued from the account maintained by the petitioner in State Bank of Mysore, Hospet Branch. Under the circumstances, there is a presumption against the petitioner under Sec. 139 of the Act to the effect that the cheque in question was issued by him to the respondent towards discharge of legally recoverable debt. It is trite that unless the petitioner rebuts the said presumption in accordance with law, by raising a probable defence, the petitioner is liable to be convicted for the offence under Sec. 138 of the Act. 8. The petitioner has raised a defence before the Trial Court stating that he had not borrowed any amount from the respondent, and on the other hand, he had borrowed an amount of Rs.70, 000.00 from one Sri Jayaprakash and the cheque in question was issued as security for the said transaction. It is the further defence of the petitioner that the amount borrowed by him from Jayaprakash was repaid, but the cheque which was given as security was not returned and the same was misused by the aforesaid Jayaprakash. It is the further defence of the petitioner that the amount borrowed by him from Jayaprakash was repaid, but the cheque which was given as security was not returned and the same was misused by the aforesaid Jayaprakash. Though the petitioner has raised such a specific defence, he has not proved the same by producing necessary evidence before the Trial Court. The suggestion made to PW-1 in this regard has been denied by him. There is absolutely no material on record to show that the petitioner had borrowed a sum of Rs.70, 000.00 from Jayaprakash and he had repaid the same to him. There is also no material on record to show that he had issued a blank cheque to the aforesaid Jayaprakash as security. After receipt of the legal notice from the respondent, the petitioner has not bothered to reply the same. If the defence taken by the petitioner was true, atleast he would have issued a reply to the legal notice or he would have taken action against the aforesaid Jayaprakash or the complainant for having misused the cheque, which according to the petitioner was issued by him to the aforesaid Jayaprakash. No such steps have been taken by him. 9. CW-1 who was examined before the Trial Court has stated that the handwriting found in the cheque does not belong to the complainant. The Trial Court as well as the Appellate Court have appreciated the oral and documentary evidence available on record and have recorded a concurrent finding of guilty against the petitioner and such a finding cannot be interfered by this Court unless the petitioner is able to demonstrate before this Court that the findings recorded by the courts below are either perverse or illegal. Under the circumstances, I am of the view that the revision petition is devoid of merits and accordingly, the same is dismissed.