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2019 Supreme(Kar) 2069
IN THE HIGH COURT OF KARNATAKA
B.A. PATIL, J.
Sri. Ganesh Shetti – Appellant
Versus
Sri. Rajan Chaudhary – Respondent
Criminal Revision Petition No. 557 of 2017
Decided On : 17-10-2019
Advocate Appeared:
For the Appellant : Sri. Nithyanand V. Naik.
For the Respondent: Sri. Keshava Kumar B.
Headnote:
Negotiable Instruments Act, 1881 - Sections 138, 118 , 141 and 142 - Appeal against convicted - Demanded to repay advance lease amount - Dishonor of cheque - Contended in the petition by the petitioner/accused that there is no strict compliance of provisions of Sections 138, 141 and 142 of Negotiable Instruments Act, 1881 (hereinafter referred as 'the Act') and no notice has been duly served to petitioner/accused as required under law and the said amount has been duly paid by the accused and the trial Court have not been properly considered - Contended the material produced on record utterly failed to prove the guilt of the accused. As such, the accused ought not to have been acquitted of charges leveled against him - respondent-complainant vehemently argued and submitted that the accused is owner of the residential flat and complainant occupied the same and an amount has been advanced as lease amount. Subsequently, he became the bankrupt and the securitization proceedings have been initiated and when he demanded to repay the advance lease amount, he issued the cheques are not in dispute. It is further submitted that the notice has been served to petitioner/accused to the address where he was residing but the said notice has been returned as not claimed - presumption under the law when once the accused admits the signature on the cheque, Court is duty bound to draw a presumption under Section 139 of the Act - Contended that as per the passbook Ex.D2, some amount has been withdrawn and paid to the complainant but no documentary evidence has been produced or any acknowledgment has been produced to show said amount has been paid to the complainant – Held, Court had to presume that the cheque had been issued for discharging a debt or liability - 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 - 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 the 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 - This was an entirely erroneous approach - Accused had to prove in trial by leading cogent evidence that there was no debt or liability - Apex Court and on perusal of records, the petitioner/accused though contended said cheque has been issued towards security for the lease amount and subsequently, he has contended said amount has been paid to complainant but he has failed to establish the said fact. When once he fails to prove said contention, case of complainant stands proved, accused is liable to be convicted - Be that as it may. Both the Courts have given concurrent finding and when the concurrent finding is given by Courts below then under such circumstances, the revisional Court will be having a very limited power if there is no jurisdictional error or illegality has been committed by the Courts below. In that ground - Judgment of trial Court as well as the First Appellate Court after discussing the facts and matrix in detail, have come to a right conclusion and have rightly convicted the accused - petition is dismissed
ORDER :
1. The present revision petition has been filed by the petitioner/accused challenging the judgment passed by the Court of the LX Additional City Civil and Sessions Judge, Bengaluru (CCH - 61) in Crl. A. No.648/2016 dated 12.04.2017 wherein the appeal was dismissed and the judgment of conviction and order of sentence passed by the Court of the XIX Additional Chief Metropolitan Magistrate at Bangalore City in C.C. No.21662/2012 dated 05.05.2016 was confirmed.
2. I have heard the learned counsel for the respondent. Learned counsel for the petitioner/accused remained absent. However, revision petition cannot be dismissed for default and it has to be heard and decided on merits. The same is disposed of on merits.
3. It is contended in the petition by the petitioner/accused that there is no strict compliance of the provisions of Sections 138, 141 and 142 of Negotiable Instruments Act, 1881 (hereinafter referred as 'the Act') and no notice has been duly served to the petitioner/accused as required under the law and the said amount has been duly paid by the accused and the trial Court have not been properly considered. It is further contended that the material produced on record utterly failed to prove the guilt of the accused. As such, the accused ought not to have been acquitted of the charges leveled against him.
4. Per contra, learned counsel appearing on behalf of the respondent-complainant vehemently argued and submitted that the accused is the owner of the residential flat and the complainant occupied the same and an amount of Rs.5,00,000/- has been advanced as lease amount. Subsequently, he became the bankrupt and the securitization proceedings have been initiated and when he demanded to repay the advance lease amount, he issued the cheques are not in dispute. It is further submitted that the notice has been served to the petitioner/accused to the address where he was residing but the said notice has been returned as not claimed. That itself is sufficient to show that the notice has been served on the petitioner/accused. Further it is submitted that there was a presumption under the law that when once the accused admits the signature on the cheque, the Court is duty bound to draw a presumption under Section 139 of the Act. The accused has not rebutted the said presumption. Though he has contended that as per the passbook Ex.D2, some amount has been withdrawn and paid to the complainant but no documentary evidence has been produced or any acknowledgment has been produced to show that the said amount has been paid to the complainant. It is further submitted that the Court below as well as the First Appellate Court after considering the factual matrix of the case, have rightly come to a conclusion and rightly convicted the accused. There are no good grounds to interfere with the order of the trial Courts. Further it is submitted that whenever the concurrent finding is there, the re visional Court is having a very limited power to entertain the criminal revision petition. It can be only entertain if any jurisdictional error or any illegality has been committed by the Courts below but no such case has been made out by the petitioner/ accused. On these grounds, he prayed to dismiss the petition.
5. Before going to consider the submissions made by the learned counsel for the respondent, the factual matrix of the case of the complainant before the Court below is that the accused is the owner of the flat bearing No.G-5 and the complainant entered into a lease agreement dated 25.02.2010 towards advance lease amount of Rs.5,00,000/-. In this behalf for the payment of the said amount, he has issued two cheques for a sum of Rs.50,000/- and Rs.4,50,000/- dated 20.02.2010 and 10.03.2010 respectively in favour of the accused. Thereafter, the complainant was put in possession of the said flat as a tenant. Later in the month of the May-2012, the respondent-complainant came to know that the accused became defaulter for the payment of loan ava
