S.RAVIKUMAR vs PRAKASH KEMBHAVI

Though the matter is listed for admission, but with consent of both sides it is taken up for final disposal.

This Revision Petition is preferred by the petitioner/accused challenging the judgment and order dated 29.11.2014 passed by the XVI Additional Chief Metropolitan Magistrate, Bengaluru City, in C.C.No.31557/2011 by which the accused has been convicted for the offence punishable under Section 138 of Negotiable Instruments Act. Thereafter, the accused has preferred an appeal in Criminal Appeal No.1407/2014 before the first appellate Court. After considering the materials placed before it, the first appellate Court by its judgment and order dated 18.08.2015 dismissed the appeal confirming the judgment and order passed by the trial Court. Being aggrieved by the judgment and orders of the Courts below, the revision petitioner is before this Court challenging the legality and correctness of the same on the grounds mentioned in the revision petition.

Brief facts of the case of the complainant before the Magistrate Court is that he had entered into lease agreement with the accused on 06.05.2008 in respect of house No.18, Ammana Mane, situated at 2nd Cross, Jaraganahalli, J.P. Nagar, 6th Phase, Basavaraj Layout, Bengaluru, which belongs to the accused. The accused is the absolute owner of the said residential property and let out the ground floor to the complainant on lease basis for a period of two years i.e., for the period from 06.05.2008 to 05.05.2010, for the total lease amount of Rs.5,00,000/-, the same was paid to the accused as security deposit by the complainant, which was refundable at the time of vacating the premises as per the conditions of the lease agreement. After expiry of the said period, complainant vacated the said house and demanded the amount. The accused has paid only Rs.25,000/- out of Rs.5,00,000/- and for remaining amount of Rs.4,75,000/- he issued a cheque bearing No.882743 dated 10.07.2011. When the said cheque was presented for encashment, same was dishonored. Then the complainant got issued the legal notice to the accused. Though it was served on the accused, neither he replied nor repaid the cheque amount. Hence, the complainant filed the private complaint before the Trial Court for the offences punishable under Section 138 of Negotiable Instruments Act.

Heard the arguments of learned counsel appearing for the revision petitioner/accused and also the learned counsel appearing for the respondent/complainant.

Learned counsel for the revision petitioner has submitted that though the petitioner/accused has admitted his signature on the cheque, but he never wrote the contents of the said cheque even the amount was also not due to the tune of Rs.4,75,000/-, the entire contents of the cheque were written by the respondent/complainant himself and taking undue advantage of the same, complaint has filed the case before the trial Court. He has further submitted that filling the cheque, amounts to alteration of the instrument. The petitioner/accused filed an application before the trial Court under Section 45 of the Evidence Act to refer the cheques for experts opinion, but same was wrongly rejected by the trial Court. Hence, he has submitted to allow the revision petition and to remand the matter to the trial Court with a direction for referring the instrument for experts opinion and to dispose of the matter afresh.

Per contra, learned counsel for the respondent/complainant has submitted that in his cross-examination, the revision petitioner/accused has clearly admitted the transactions between himself and the complainant and even he has admitted the payment of Rs.5,00,000/- as security deposit. He has further submitted that even the petitioner/accused has admitted his signature on the instrument and handing over the cheque to the complainant. Hence, in view of the said evidence placed by the revision petitioner before the trial Court, so also, appreciating the evidence of the complainant, the trial Court rightly convicted the petitioner/accused and the same was confirmed by the first appellate Court. There are concurrent findings by the Courts below. There is no merit in this petition and hence, same is to be dismissed.

I have perused the grounds urged in the revision petition and the judgment and orders passed by the Courts below. The judgment of the trial Court clearly shows that, though at the first instance the petitioner/accused denied the entire transactions, during the course of trial proceedings he has admitted the lease agreement and also the payment of Rs.5,00,000/- as a security deposit by the respondent/complainant. It has also come on record through the evidence of the complainant that after the expiry of lease period of two years, when the complainant demanded for repayment of the security deposit amount of Rs.5,00,000/-, petitioner/accused had made payment of Rs.25,000/- and a sum of Rs.4,75,000/- was due, in respect of which the petitioner/accused had issued the cheque. The revision petitioner/accused has admitted his signature on the instrument, but it is his contention that the contents are not written by him. Even if it is accepted and if it is assumed that the complainant has filled the contents of the cheque, which itself will not amount to alteration of the instrument as per Section 20 of the Negotiable Instruments Act.

Looking to the defense of the revision petitioner, he has not placed any acceptable material before the trial Court to accept his contentions.

Looking to the reasons recorded by the trial Court, the trial Court discussed about the initial presumption under Sections 118 and 139 of Negotiable Instruments Act in favour of the respondent/ complainant and the accused has failed to rebut the initial presumption raised in favour of the complainant. Therefore, looking to the judgment and order of conviction passed by the trial Court, there is no illegality committed nor there is any perverse or capricious view taken by the trial Court. The first appellate Court, after re-appreciating the entire materials, also came to the conclusion that there is no illegality in the judgment and order passed by the trial Court and there are no justifiable grounds made out by the accused to interfere into the judgment and order passed by the trial Court, accordingly, the first appellate Court dismissed the appeal.

As there are concurring findings with regard to the factual aspects of the matter and as the revision petitioner has not made out any illegality in the judgment and orders passed by the Courts below, I am of the opinion that there is no merit in this petition. Hence, criminal revision petition is hereby rejected.