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TMI Blog2021 (8) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... one Sri. Lakshman Naik, to show that, the said person by name Sri. Lakshman Naik had filed cases in the Civil Court and that he was favouring the complainant - the complainant, apart from existence of a presumption of a legally enforceable debt in his favour, could able to prove his case by leading cogent evidence, both oral and documentary, but the accused who failed to take any specific defence in the matter, could not even make out a case on preponderance of probabilities. Since both the Trial Court and the Sessions Judge's Court, after analysing the materials placed before them, have rightly convicted the accused for the offence punishable under Section 138 of the N.I. Act and have passed an order of sentence which is proportionate to the gravity of the proven guilt against the accused, the impugned judgments cannot be called as perverse, illegal or capricious, warranting any interference at the hands of this Court. Criminal Revision Petition stands dismissed as devoid of merits. - Criminal Revision Petition No. 1151 of 2019 - - - Dated:- 16-7-2021 - Dr. H. B. Prabhakara Sastry , J. For the Appellant : Balakrishna K., Advocate For the Respondents : Vedav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed and the accused issued cheque bearing No. 745131 dated 22-01-2013 for ₹ 10,00,000/- of Athithi Residency drawn on Karnataka Bank Limited, R.T. Nagar, Bangalore and requested the complainant to present the same on 22-01-2013. On presentation of the said cheque for encashment, the same returned unpaid for the reason payment stopped . Hence, the complainant got issued a legal notice dated 14-02-2013, which was duly served on the accused on 15-02-2013. In spite of service of notice, the accused failed to make payment of the cheque amount. Hence, the respondent (complainant) was constrained to institute a criminal case against the petitioner (accused) for the offence punishable under Section 138 of the N.I. Act. 3. The accused appeared in the Trial Court and contested the matter through his counsel. 4. To prove his case, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-9. The accused got examined two witnesses as DW-1 and DW-2 and also got marked two documents as Exs.D-1 and D-2. The Trial Court after recording the evidence led before it and hearing both side, by its impugned judgment dated 26-03-2016 convicted the accused for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a sum of ₹ 10,00,000/- and bearing No. 745131 dated 22-01-2013 and drawn on Karnataka Bank Limited, CBS Branch , R.T. Nagar, Bangalore, is drawn by the accused. It is further not in dispute that, the said cheque when presented for realisation by the complainant, came to be returned unpaid by the drawer Bank, stating that, the payment was stopped by the drawer, as could be seen from the banker's endorsement at Ex.P-2. It is also not in dispute that, after the dishonour of the cheque, the complainant got issued a legal notice to the accused as per Ex.P-6. Though the complainant has not produced the postal acknowledgement for having delivered the said notice upon the accused, but he has produced a document titled complaint-Settled Reply dated 13-03-2013 at Ex.P-8 given by the Senior Superintendent of Post Offices, Bangalore East, to the learned counsel for the complainant, stating that, the postal article has been delivered to the addressee on 15-02-2013. Admittedly, the accused has not paid the cheque amount despite issuance of legal notice to him. Thus, a presumption about the legally enforceable debt exists in favour of the complainant under Section 139 of the N.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW-1 in his cross-examination, relying upon some document which is not before the Court in the instant case, and deduce any inference from such document, which is not in this case is uncalled for in the matter. He further submitted that the present petitioner (accused) being the proprietor of several of the concerns including M/s. Best Ladies PG and M/s. Athithi Residency, has siphoned the fund of his one Concern to another Concern and also for his personal use, he being the proprietor of all those Concerns, have made his venture easy. 13. Learned counsel for the petitioner/accused though vehemently argued that, the investment made by the complainant was in a Partnership business comprising the complainant, accused and one more person by name Sri. M.S. Balaji, for running a Paying Guest concern, under the name and style of Best Ladies PG , but in support of his argument, neither any evidence through PW-1, DW-1 and DW-2 can be found nor any documents were produced by him in this case. Though the learned counsel for the petitioner/accused submitted that, a Partnership Deed in that respect has been produced in another similar case between the same parties which is said to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the accused, who had obtained a loan of a sum of ₹ 10,00,000/- from the complainant. The witness also stated that the accused told him that it is in that connection of loan transaction, the document at Exhibit P-5 was prepared. Accordingly, he has signed to it. This witness was treated as hostile and was permitted to be cross-examined from the accused's side. However, even in his cross-examination, the witness adhered to his original version. Thus, nothing could be elicited from this witness in favour of the accused. Thus, the evidence of DW-2 further corroborates the evidence of PW-1 regarding the loan transaction. 17. In the cross-examination of PW-1, a suggestion was made to the witness, suggesting that, the amount was carrying interest upon it. Though the witness stated that, since the accused promised to return the loan amount within three months, he did not apply interest. But, by making the said suggestion, the accused has shown that he has admitted the loan transaction as contended by the complainant. 18. In the further cross-examination dated 11-11-2014 of PW-1, a suggestion was made to the complainant from the accused's side that, the accused has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of one Sri. Lakshman Naik, to show that, the said person by name Sri. Lakshman Naik had filed cases in the Civil Court and that he was favouring the complainant. However, in the light of the very Lakshman Naik himself entering the witness-box, as DW-2 and leading evidence, the said purpose of producing Exhibits D-1 and D-2 also has not favoured the accused any further. Thus, the complainant, apart from existence of a presumption of a legally enforceable debt in his favour, could able to prove his case by leading cogent evidence, both oral and documentary, but the accused who failed to take any specific defence in the matter, could not even make out a case on preponderance of probabilities. 21. Thus, since both the Trial Court and the Sessions Judge's Court, after analysing the materials placed before them, have rightly convicted the accused for the offence punishable under Section 138 of the N.I. Act and have passed an order of sentence which is proportionate to the gravity of the proven guilt against the accused, the impugned judgments cannot be called as perverse, illegal or capricious, warranting any interference at the hands of this Court. Accordingly, I proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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