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2023 DIGILAW 952 (KAR)

Mahabala v. Usha

2023-08-03

RAJENDRA BADAMIKAR

body2023
JUDGMENT 1. This revision petition is filed by the accused under Sec. 397 r/w 401 of Cr.P.C challenging the judgment of conviction dtd. 21/2/2015 passed by the Court of JMFC-V, Mangaluru ('trial Court' for short) in CC No.692/2011 and confirmed by the Principal Sessions Judge, Mangaluru, ('Appellate Court' for short) in Criminal Appeal No.85/2015 vide judgment dtd. 11/3/2016. 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by the parties before the trial Court. 3. The brief factual matrix leading to the case are that, the complainant- Smt.Usha and accused- Sri.Mahabala are acquainted with each other and as per the request of the accused, the complainant has advanced hand-loan of Rs.4, 00, 000.00 on 20/4/2009 for financial needs of the accused and the accused promised to repay the loan amount within six months and he had executed On-demand Promissory Note along with receipt of consideration. He has also pledged original RC Book pertaining to Maruti ALTO Car bearing No.KA.19.Z.6502. But, the accused has failed to repay the loan amount as agreed and when the complainant has demanded for repayment of the loan amount, the accused issued a cheque for Rs.4, 00, 000.00 and when the said cheque was presented for encashment by the complainant, it was returned with an endorsement 'Insufficient Funds'. Then the complainant got issued a legal notice to the accused and the accused replied the said notice by taking untenable defence. Hence, the complainant has lodged a complaint under Sec. 200 of Cr.P.C., alleging that the accused has committed an offence under Sec. 138 of the Negotiable Instruments Act, 1881 ('N.I. Act' for short). 4. The learned Magistrate after recording the sworn statement of the complainant and after perusing the records, has taken cognizance of the matter and issued process against the accused. The accused has appeared through her counsel and was enlarged on bail. The accusation was read-over and explained to him and he pleaded not guilty. 5. The complainant was examined as PW.1 and she placed reliance on 10 documents marked at Ex.P1 to P10. After completion of the evidence of the complainant, the statement of accused under Sec. 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused is of total denial and he got himself examined as DW.1. After completion of the evidence of the complainant, the statement of accused under Sec. 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused is of total denial and he got himself examined as DW.1. However, he did not chose to produce any documentary evidence in support of his defence. 6. After having heard the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused for the offence under Sec. 138 of the N.I. Act, by imposing fine of Rs.4, 10, 000.00, in default, to undergo S.I. for six months. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached the Principal Sessions Judge, Mangaluru, in Criminal Appeal No.85/2015 and the learned Sessions Judge after re-appreciating the oral as well as documentary evidence, vide judgment dtd. 11/3/2016, has dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the trial Court. Being aggrieved by these concurrent findings, the accused is before this Court by way of this revision petition. 7. Heard the arguments advanced by the learned counsel for the revision petitioner/accused and the learned counsel for the respondent. Perused the records. 8. Learned counsel for the revision petitioner/accused would contend that, the accused is fair enough to admit the availment of loan only to the extent of Rs.2, 00, 000.00 in three installments of Rs.1, 00, 000.00, Rs.50, 000.00 and Rs.50, 000.00 and the accused has already repaid Rs.75, 000.00. He would also assert that, there is balance of only Rs.1, 25, 000.00 and at the time of availment of loan to the tune of Rs.2, 00, 000.00, the blank cheques and On-demand Promissory Notes were secured as security, which has been misused by demanding higher rate of interest. He would assert that the defence of the accused is more probable and the presumption in favour of the complainant stands rebutted and hence, he would contend that, both the courts below have failed to appreciate this aspect and the judgment of conviction and order of sentence passed by the courts below are perverse and capricious. Hence, he would seek indulgence of this Court for setting the impugned judgments passed by both the courts below and to allow the revision petition by acquitting the accused/revision petitioner. 9. Hence, he would seek indulgence of this Court for setting the impugned judgments passed by both the courts below and to allow the revision petition by acquitting the accused/revision petitioner. 9. Per contra, learned counsel for the respondent would support the judgment of conviction and order of sentence passed by the courts below. He would contend that the signature on the cheque has been admitted and as such, there is a presumption under Sec. 139 of the N.I. Act in favour of the complainant. He would contend that, though the accused has taken a defence regarding availment of loan of Rs.2, 00, 000.00 and repayment of Rs.75, 000.00, no material evidence is placed to substantiate this defence and hence, the presumption is not at all rebutted. Hence, he would seek for dismissal of the revision petition. 10. Having heard the arguments and perusing the records, now the following point would arise for my consideration:- "Whether the judgment of conviction and order of sentence passed by both the Courts below are perverse, arbitrary and illegal so as to call for interference by this Court, by exercising revisional powers?" 11. It is the specific assertion on the part of the complainant that, the accused has availed hand-loan of Rs.4, 00, 000.00 on 20/4/2009 agreeing to repay the same within six months and he has executed On-demand Promissory Note and also he pledged the RC Book of the ALTO Maruti Car as security for the loan transaction. It is also asserted that the accused did not repay the loan amount as agreed and when demanded, he issued a cheque as per Ex.P1 and when the said cheque is presented for encashment, it is bounced for Insufficient Funds. The complainant has also issued a legal notice and the same is replied by the accused. All the technicalities have been complied by the complainant in the instant case. 12. The accused has not disputed his signature on the cheque-Ex.P1 and further admits that the cheque at Ex.P1 belongs to him and it bears his signature. Hence, drawing of presumption under Sec. 139 of the N.I. Act is mandatory. No doubt it is a rebuttable presumption, but the burden is on the accused to rebut the presumption on the basis of preponderance of probabilities. 13. Hence, drawing of presumption under Sec. 139 of the N.I. Act is mandatory. No doubt it is a rebuttable presumption, but the burden is on the accused to rebut the presumption on the basis of preponderance of probabilities. 13. It is the contention of the accused/revision petitioner that, he has availed hand-loan of Rs.2, 00, 000.00 in three installments in a sum of Rs.1, 00, 000.00, Rs.50, 000.00 and Rs.50, 000.00 and out of the same, Rs.75, 000.00 is repaid and the balance is Rs.1, 25, 000.00. He would also contend that, at the time of availment of loan, the accused has issued the blank signed cheque and On-demand Promissory Note and also pledged RC book of ALTO Maruti Car with the complainant. Except assertion in the reply notice and in his examination-inchief, the accused has not produced any piece of evidence to substantiate the said contention that he has availed loan of Rs.2, 00, 000.00. 14. Learned counsel for the revision petitioner/accused has made a half-hearted attempt to challenge the financial status of the complainant. However, the reply notice itself discloses that the accused has availed loan of Rs.2, 00, 000.00 from the complainant and that itself establish that the financial status of the complainant is admitted. Further, the accused has asserted that the complainant was doing money lending business, But, to substantiate the said contention, no evidence is placed. Mere assertion of accused cannot be accepted as a rebuttable evidence so as to rebut the presumption available in favour of the complainant. The accused has failed to rebut the presumption available in favour of the complainant under Sec. 139 of the N.I. Act. 15. Both the courts below have appreciated these aspects in proper perspective by analising the oral and documentary evidence in accordance with law. No perversity or illegality is found in the judgment of conviction and order of sentence passed by the trial Court and confirmed by the Appellate Court. Further, the trial Court was kind enough to impose only fine of Rs.4, 10, 000.00, though the cheque amount is Rs.4, 00, 000.00. 16. Looking to the above facts and circumstances, question of interference with the judgment of conviction and order of sentence passed by both the courts below does not arise at all. As such, the point under consideration is answered in the negative and as such the revision petition fails. 16. Looking to the above facts and circumstances, question of interference with the judgment of conviction and order of sentence passed by both the courts below does not arise at all. As such, the point under consideration is answered in the negative and as such the revision petition fails. Accordingly, I proceed to pass the following:- ORDER i) The Criminal Revision Petition is dismissed. ii) The impugned judgment of conviction and order of sentence dtd. 21/2/2015 passed by the Court of JMFC-V, Mangaluru ('trial Court' for short) in CC No.692/2011 and confirmed by the Principal Sessions Judge, Mangaluru, ('Appellate Court' for short) in Criminal Appeal No.85/2015 vide judgment dtd. 11/3/2016, are confirmed. iii) The Registry is directed to send back the original records to the trial Court along with a copy of this order, with a direction to secure the presence of accused for recovery of fine amount or serving the default sentence of imprisonment. iv) The bail bonds if any executed by the revision petitioner/accused stand cancelled. v) If any amount is deposited before this Court, shall be transferred to the concerned trial Court.