Criminal Revision Petition No. 536/2014. Case: C.N. Dinesha Vs C.G. Mallika. Karnataka High Court

Case Number:Criminal Revision Petition No. 536/2014
Party Name:C.N. Dinesha Vs C.G. Mallika
Counsel:For Appellant: Venkatesh R. Bhagat, Adv. and For Respondents: R. Radha, Adv.
Judges:Rathnakala, J.
Issue:Code of Criminal Procedure, 1973 (CrPC) - Section 313; Hindu Marriage Act, 1955 - Section 13B; Income Tax Act, 1961 - Sections 269SS, 269SS(1), 271D; Negotiable Instruments Act, 1881 - Sections 118, 118(a), 119, 138, 139
Judgement Date:April 06, 2017
Court:Karnataka High Court
 
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Order:

Rathnakala, J.

  1. This revision petition is filed aggrieved by the judgment of conviction and sentence returned by the trial court thereby sentencing the revision petitioner/accused to undergo simple imprisonment for one year and pay a fine of Rs. 5,000/- with default clause in respect of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity 'the Act') and further, directing him to pay compensation of Rs. 4,00,000/- to the complainant.

  2. The appeal preferred against the said judgment was dismissed.

  3. As the facts unfurl, the complainant issued a demand notice to the accused alleging that, during January 2006, he requested for a financial assistance of Rs. 3,50,000/- and assured to return the amount within three months; he issued a post-dated cheque dated 16.6.2006 bearing cheque No. 003675 drawn on Corporation Bank, Channarayapatna Branch for a sum of Rs. 3,50,000/-. The complainant presented the cheque for encashment on 16.6.2006, but it was dishonoured with the endorsement "insufficient fund". Despite service of notice through RPAD, the accused did not repay the loan amount.

  4. On presentation of the complaint, the learned Trial Court registered the criminal case, accused was procured and he pleaded not guilty. The complainant examined herself as PW-1 and marked 7 documents as Exs. P1 to P7. The statement of the accused under Section 313 of Cr.P.C. was recorded and he denied the incriminating evidence appearing against him in the statements of complainant's witnesses. Defence evidence was let in through the evidence of DWs-1 to 3 and three documents were marked as Exs. D1 to D3. After giving audience to both, learned Trial Judge convicted the accused.

  5. Sri. Venkatesh R. Bhagat, learned Counsel appearing for the petitioner/accused assailing the judgment of Courts below submits, the amount involved in the cheque transaction was Rs. 3,50,000/-, which is quite a heavy amount to be passed on without a documentary proof. The courts below overlooked the dent in the case of the complainant that she failed to establish her capacity to pay Rs. 3,50,000/- as loan to the accused, that too, without obtaining any documents from him. For a naked eye, it is visible that number '3' was inserted subsequently in the box of the cheque before the numbers '50,000' to make it Rs. 3,50,000/-. The cheque having been tampered by the complainant, the courts should not have overlooked this aspect of the matter. The sentence imposed was excessive though the guilt of the accused was not proved. In view of Section 269SS of the Income Tax Act ('the I.T. Act' for brevity), the loan transaction above Rs. 20,000/- is to be made by way of cheque only, in the light of the judgment of the Apex Court in the matter of Krishna Janardhan Bhat v. Dattatraya G. Hegde reported in AIR 2008 SC 1325. Hence loan transaction by way of cash in this case is vitiated. The accused not only has rebutted the case of the complainant but also was able to dislodge the initial presumption arising under Sections 118 and 139 of the Act. The accused in his reply to the legal notice issued on 23.6.2006 had asserted that, he had issued a cheque for Rs. 50,000/- only and said cheque was tampered by the complainant; he had called upon the complainant to get another cheque from him for getting replacement of the altered cheque.

    Learned Counsel continues, the courts below failed to consider above aspects of the matter and convicted him solely on the ground that he has taken contradictory stands at different stages; but being an accused, he is entitled to take such stands and is not liable to prove his defence beyond reasonable doubt. Standard of proof to prove defence on the part...

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