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2019 Supreme(Kar) 2024
IN THE HIGH COURT OF KARNATAKA
B.A. PATIL, J.
Prabhakar A. – Appellant
Versus
Praveen Kumar R. – Respondent
Criminal Revision Petition No. 926 of 2018
Decided On : 17-10-2019
Advocate Appeared:
For the Appellant : Sri. Raghavendra C.
For the Respondent: Sri. Arun Kumar Y.H.
Headnote:
Criminal Procedure Code,1973 - Section 313 - Negotiable Instruments Act, 1881 - Sections 138, 139 and 118 - Examination of accused – Query alert service - Demanded to repay the hand loan - Funds insufficient - Complainant before the Court below is the complainant and the accused knew each other and they were good friends. In the month of accused requested for hand loan for business commitments and develop the business and agreed to repay the same within one month - Complainant paid an amount accused and the accused has also agreed to pay the interest at the rate of 24% per annum. When the complainant demanded to repay the hand loan, the accused has issued a post dated cheque bearing No.081621 dated 13.10.2012 for Rs.6,50,000/-drawn on Canara Bank - Cheque was presented to the bank, it was returned with shara 'funds insufficient' in the account of the accused legal notice was issued to the accused and it was served upon the accused but the accused did not reply to the said notice and as such, the complaint was registered. Learned Magistrate took the cognizance of the offence, recorded sworn statement of the complainant and secured the presence of the accused. Thereafter, the Court has recorded plea of the accused, read over and explained to him – Held, Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability - Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability - accused has not been properly explained. At one stretch, he deposed that Sharavanna handed over ten cheques to the complainant and at another stretch he has deposed that in ten cheques, the said Sharavanna had handed over the disputed cheque to the complainant and same was forged and misused - accused has taken the contention that the cheque has been taken by Sharavanna, he has not been examined by accused. During the course of arguments, learned counsel for the petitioner/accused submitted that though he has stated that he can examine Sharavanna but as he has incurred huge debt and as such, he is absconding, hence, he was not available as such he did not examine him - Itself clearly goes to show that when once he himself incurred huge debt - Petition is dismissed
ORDER :
1. This petition has been filed by the petitioner/accused challenging the legality and correctness of the judgment passed by the Court of LII Additional City Civil and Sessions Judge in Crl.A.No.90/2016 dated 11.07.2018, where under, the judgment of the conviction and order of sentence passed by the Court of XXIII Additional Chief Metropoliton Magistrate, Bengaluru in C.C.No.3096/2013 dated 02.01.2016 was confirmed.
2. I have heard the learned counsel for the petitioner/accused. Learned counsel for the respondent/complainant remained absent.
3. Though this case is listed for admission, with the consent of learned counsel for the petitioner/accused, the same is taken up for final disposal.
4. The factual matrix of the case of the complainant before the Court below is that the complainant and the accused knew each other and they were good friends. In the month of May-2012, the accused requested for hand loan of Rs.6,50,000/- for business commitments and develop the business and agreed to repay the same within one month. On 14.05.2012, the complainant paid an amount of Rs.6,50,000/- to the accused and the accused has also agreed to pay the interest at the rate of 24% per annum. When the complainant demanded to repay the hand loan, the accused has issued a post dated cheque bearing No.081621 dated 13.10.2012 for Rs.6,50,000/-drawn on Canara Bank. When the said cheque was presented to the bank, it was returned with shara 'funds insufficient' in the account of the accused dated 03.11.2012. On 16.11.2012, a legal notice was issued to the accused and it was served upon the accused but the accused did not reply to the said notice and as such, the complaint was registered. Learned Magistrate took the cognizance of the offence, recorded sworn statement of the complainant and secured the presence of the accused. Thereafter, the Court has recorded plea of the accused, read over and explained to him. The accused has not pleaded guilty and claims to be tried. As such, the trial was held.
5. In order to prove the case of the complainant, he has got examined himself as PW. 1 and got marked 7 documents as Exs.P1 to P7. Thereafter, the accused was examined under Section 313 of Cr.P.C. He got examined himself as DW.1 and got marked 6 documents as Exs.D1 to D6.
6. After hearing the learned counsel appearing for the parties, the accused was convicted. Being aggrieved by the conviction order, he preferred an appeal before the I Appellate Court and the same was dismissed. Challenging the same, the petitioner/accused is before this Court.
7. The main contention urged by the learned counsel for the petitioner/accused is that the respondent/complainant is not having financial capacity to lend the loan. Though the said fact has been disputed before the trial Court as well as the I Appellate Court, without looking into the said fact, the Courts below have come to a wrong conclusion and conviction order has been passed. It is further submitted that the respondent/complainant has not produced any document to substantiate that he was having financial capacity and there was no transaction between the accused and the complainant. It is his further contention that no notice has been served to the accused and the address mentioned in the notice and the documents produced at Exs.D3 to D6 are differing. But however, without there being any sufficient material, the trial Court as well as I Appellate Court have committed error in passing the order. On these grounds, he prayed to allow the petition and to set aside the impugned judgment of conviction and order of sentence.
8. I have carefully and cautiously gone through the submissions made by the learned counsel for the petitioner/accused and perused the records as well as the Lower Court Records.
9. It is the specific contention of the learned counsel for the respondent/complainant that the accused has borrowed a hand loan of Rs.6,50,000/-. For discharging the said loan, the accused had issued a post dated cheque be
