C.R. Devendra vs Santesh Gureddi

Budihal R.B., J.—Since the parties in both the revision petitions are one and the same and since common questions of law and facts are involved in both the petitions, they have been taken together to dispose of them by common order.

These revision petitions are preferred against the judgment and order dated 12.10.2009 passed by the Fast Track Court-X, Bengaluru in Criminal Appeal Nos. 155/2009 and 156/2009 dismissing the appeals and confirming the judgment and order dated 28.01.2009 passed in the criminal cases in C.C. Nos. 25460/2006 and 25461/2006 respectively on the file of the XV Additional Chief Metropolitan Magistrate Court, Bengaluru city.

The petitioner, in both the revision petitions, was the accused before the trial court and the respondent was the complainant. For the sake of convenience, the parties are referred to by their ranking before the trial court.

The respondent-complain ant filed the aforesaid criminal cases before the trial court under section 200 of Cr.P.C. against the petitioner-accused for the alleged offence under Section 138 read with Section 142 of the Negotiable Instruments Act (for short ''the Act''). The trial court after considering the merits of the case and the evidence on record, both oral and documentary, by its judgment and order dated 28.01.2009, convicted the accused for the offence under Section 138 of the Act and imposed the fine. Hence, the accused preferred appeals in Crl. A. Nos. 155/2009 and 156/2009 before the first appellate court challenging the judgment and order passed by the trial court. The first appellate court has dismissed the appeal in Crl. A. No. 155/2009 and confirmed the conviction order passed by the trial court and partly allowed Crl. A. No. 156/2009 and modified the conviction order passed by the trial court in the following terms:

"The accused is convicted for the offence punishable under section 138 of the N.I. Act and is sentenced to pay a fine of Rs. 15,05,000/-. Out of the recovered fine amount, a sum of Rs. 15,00,000/- shall be paid to the complainant as compensation and balance amount of Rs. 5,000/- shall go to the State. In default, the accused shall under go simple imprisonment for a period for six months." 5. The revision petitioner in these petitions has challenged the legality and correctness of the order of the first appellate court on the grounds that, having remanded two cases to the trial court on the ground that the non compliance of mandatory provisions of the Code has prejudiced the defence resulting in failure of justice, the first appellate court has erred in dismissing the afore said appeals on the specious ground that no prejudice would be caused to the petitioner if the appeal is dismissed. This approach has vitiated the judgment and order under revision. The first appellate court ought to have taken a consistent stand as in other two appeals and allowed the present appeals. Even otherwise, the first appellate court having extracted the principle laid down in the case reported in Girineni Srinivasa Rao and Others Vs. Girineni Radhamma and Another, ought to have followed and allowed the appeal and set aside the conviction and sentence. The first appellate court ought to have taken into consideration the payment of Rs. 57,00,000/- during trial by the petitioner to respondent as also the deposit of Rs. 52,55,000/- and the submission made that he had no objection to the respondent withdrawing Rs. 43,00,000/- from the amount in deposit which he has withdrawn, and taking the same into consideration along with the contention taken by the petitioner in Ex. P. 8, ought to have acquitted the petitioner. Taking the conduct of the petitioner who was making efforts to pay back a sum of Rs. 1.00 crore during trial, the first appellate court ought not have dismissed the appeals confirming the fine of Rs. 15,05,000/- which is unreasonable and not judicious. The conviction and sentence passed by the trial court and confirmed by the first appellate court are even otherwise unjust and unsustainable. Hence, the petitioner sought to allow the revision petitions.

Heard the arguments of the learned counsel appearing for the revision petitioner-accused in both the petitions and learned counsel appearing for the respondent-complainant.

Learned counsel appearing for the petitioner, during the course of the arguments, submitted that on the similar contentions, the first appellate court has allowed the two other appeals and remanded back the matters to the trial court giving opportunity to the petitioner herein to cross examine P.W. 1 and also for recording his statement under Section 313 of Cr.P.C. Similar view ought to have been taken by the first appellate court even in the impugned criminal appeals also. Hence, he submitted that taking such divergent views in the appeals with that of two other cases, which were remanded, has prejudiced the interest of the petitioner. The learned Counsel has further submitted that while giving reply to the legal notice as per Ex. P. 8, the petitioner has taken a clear contention about his defence in the case. Though the petitioner has submitted his reply as per Ex. P. 8, the first appellate court has, without considering the legal and factual aspects, wrongly dismissed Crl. A. No. 155/2008 and partly allowed Crl. A. No. 156/2008 and hence, submitted that the judgment and orders under revision are illegal and are liable to be set aside.

Per contra, the learned counsel appearing of the respondent-complainant, during the course of the arguments, submitted that the borrowing of money and receiving of the cheques even in the present two cases is an admitted fact even according to the petitioner accused. Hence, the first appellate court has rightly appreciated the materials and passed the impugned order pertaining to the present revision petitions. The learned counsel further submitted that no illegality has been committed nor there is any perverse or capricious view taken by the first appellate court so far as it relates to the present revision petitions. There is no merit in the revision petitions and submitted to dismiss the same.

I have perused the common judgment and order dated 12.10.2009 passed by the first appellate court in Crl. A. Nos. 155/2009 and 156/2009 and also the records of the trial court in C.C. Nos. 25460/2006 and 25461/2006 respectively and judgment and order dated 28.1.2009 passed in the said criminal cases.

The case of the complainant is that the accused had received Rs. 2.00 crores from the complainant in connection with joint development of the property bearing No. 11, Victoria Layout, Bengaluru. To discharge the aforesaid legally enforced liability, the accused had issued four cheques dated 18.2.2006, 22.2.2006, 24.2.2006 and 26.2.2006, for a sum of Rs. 50.00 lakh each, in favour of the complainant. When the said cheques were presented for collection to the bank on 26.6.2006, the same were came to be dishonored as per the banker''s endorsement dated 26.6.2006 as ''account closed''. Then the complainant issued legal notice to the accused. Even after service of notice on the accused, he did not pay the amount within 15 days and sent untenable reply dated 19.7.2006. Hence, the complainant filed four complaints before the Magistrate Court under Section 200 of Cr.P.C. alleging that the accused has committed the offence punishable under Section 138 of the Act.

Perused the records of the trial court. The complainant gave his evidence as P.W. 1 and got marked the documents as per Exs. P. 1 to P. 8. In spite of giving several opportunities to cross examine P.W. 1, the accused had not availed the said opportunities and not cross examined P.W. 1. In the statement recorded under Section 313 of Cr.P.C., though the accused had stated that he was having evidence to be deposed on his side, he had not entered into the witness box to substantiate his plea and hence, the trial court proceeded to pass the impugned order. The issuance of four cheques and his signature on the said cheques is admitted by the accused. In the reply notice dated 19.7.2006, the accused has stated that he had repaid Rs. 1.00 crore and he was due only to repay the remaining due amount of Rs. 1.00 crore. I have perused the reply notice at Ex. P. 8, wherein at para No. 4 of the said notice, it is contended as under:

"My client informs that your client having developed cold feet mid way, requested that he be exonerated from his contractual obligation for personal and professional reasons, and that his client without any demur accepted the request, and refunded a sum of Rs. 1.00 crore by means of two DDs. both drawn on UTI Bank dated 10.4.2006 and 6.5.2006 bearing Nos. 013818 and 14469 of Rs. 50.00 lakh each. I am instructed to further state that said two DDs. were deposited by you at your account at ING Vysya Bank at Sadashiva Nagar Branch, Bengaluru bearing No. 202011004812." 12. Though such contention was raised in his reply notice, to substantiate the same and to prove it by acceptable evidence, the accused had not entered the witness box. Mere taking plea is not the proof of rebutting the presumption raised in ''favour of the complainant as per sections 118(a) and 139 of the Act as the accused has accepted the case of the complainant that he has issued four cheques each for Rs. 50.00 lakh and also admitted his signature on those lour cheques. P.W. 1 complainant has stated in his evidence about the accused borrowing Rs. 2.00 crore and issuance of four cheques each for Rs. 50.00 lakh. Therefore, in view of these facts and circumstances, initial presumption in favour of the complainant comes into play as per Section 118(a) and 139 of the Act. Perusing the statement under Section 313 of Cr.P.C., it is clear that the accused has been examined. As per question No. 5 of the said statement, the accused was specifically asked whether he wanted to say anything more in the matter. He has not stated in his answer that he has already paid Rs. 1.00 crore by issuing two DDs. and the said payment pertaining to these transactions as contended in the reply to the legal notice, but he has simply answered ''no''. Therefore, this makes it clear that the accused has utterly failed to rebut the presumption raised in favour of the complainant.

Perused the common judgment and order passed by the first appellate court and the entire materials on record, the complainant has established his case in respect to what he has pleaded in the complaint lodged before the trial court. The contention of the complainant is supported by the oral and documentary evidence. Hence, the impugned judgment and order passed by the first appellate court is legal and valid. With regard to the factual aspects regarding the materials facts, there are concurrent findings of the courts below. Regarding the contention of the learned counsel appearing for the revision petitioner-accused that the complainant has not at all stated anything about Ex. P. 8 reply in his complaint, perusal of the judgment of the trial court shows that it has discussed in detail regarding the said aspect. It has stated in its judgment that though it is contended by the accused in the reply that he has given two DDs each for Rs. 50.00/- lakh and thereby made the payment of Rs. 1.00 crore, except the said bare contention in the reply, he has not produced any other supporting material and he has not even cross examined P.W. 1 nor let in his evidence even though sufficient opportunity was given to him. Looking to the statement recorded under Section 313 of Cr.P.C., when the accused was specifically questioned at question No. 5, whether he wanted to say anything in the matter, even at that stage also, he never stated about issuance of the two DDs. and the payment of Rs. 1.00 crore pertaining to the said transaction. Therefore, mere explanation is not sufficient, but what is required to rebut the presumption is proof of the explanation contended by the revision petitioner accused. Perusing these materials on record, the trial court as well as the first appellate court have rightly appreciated each and every aspect of the matter and have rightly recorded concurrent findings. There is no illegality nor there is any perverse or capricious view taken by the courts below. I am of the opinion that there is no merit in the revision petitions. Accordingly, they are dismissed.