IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.548/2017 BETWEEN:
Mr. Alphonsus Maxim D’Souza, S/o. Late Michael D’Souza, R/at: Shakthinagar, Kulshekar Post, Mangaluru Taluk -575 005.
D.K. District …Petitioner (By Sri. S. Rajashekar, Advocate) AND Mr. U. Devdas Nayak, S/o.: Late U. Ranga Nayak, R/at: 24-11-1103/3, Rahul Apartment, Babu Gudda Road, Marnemikatte, Mangaluru -575 001.
D.K. District. …Respondent (By Sri. K. Chandranath Ariga, Advocate) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C. praying to set aside the judgment dated 02.02.2017 passed in Crl. A.No.89/2015 on the file of Prl. S.J., D.K., Mangalore dismissing the criminal appeal filed by the revision petitioner and thereby confirming the judgment of conviction and order of sentence dated 02.02.2017 passed in Crl.A.No.89/2015 on the file of JMFC-V Court, Mangalore by allowing the above Revision Petition and thereby acquit the accused/revision petitioner for the offence p/u/s 138 of N.I. Act.
This Criminal Revision Petition coming on for orders this day, the Court made the following:
ORDER This petition has been filed by the petitioner/accused challenging the legality and correctness of the judgment passed by the Principal Sessions Judge, D.K. Mangalore in Criminal Appeal No.89/2015 dated 02.02.2017 hereunder the judgment of conviction and the order of sentence passed in C.C. No.557/2012 by JMFC-V Court, Mangalore by order dated 25.02.2015 was confirmed.
2. I have heard the learned counsel for the petitioner/accused and learned counsel for the respondent.
3. Though this case is listed for orders, with the consent of learned counsel appearing for both the parties, same is taken up for final disposal.
4. It is the case of the complainant before the Court below that in the year 2010 accused received a hand loan of Rs.3,60,000/-(Rupees Three Lakhs Sixty Thousand Only) and in order to discharge the said loan he had issued three cheques bearing No.376604, 376612 ad 376606 dated 20.05.2011 and 24.11.2011 for a sum of Rs.1,40,000/- (Rupees One Lakh Forty Thousand Only), Rs.1,20,000/- (Rupees One Lakh Twenty Thousand Only) and Rs.1,00,000/- (Rupees One Lakh Only) respectively. When the said cheques were presented for encashment through the banker of the complainant, said cheques returned with shara “payment stopped by the drawer”. Thereafter, the complainant called upon the accused by issuing a legal notice dated 12.10.2011. The accused received the said notice on 14.10.2011 and he has given an untenable reply but he did not make payment and as such the complaint was registered. The Trial Court took cognizance and secured the presence of the accused. After furnishing copies, the plea of the accused was recorded. Accused pleaded not guilty of the offence, he claimed to be tried. As such the trial Court has framed charges. In order to prove the case of the complainant he examined himself as PW-1 and Bank Manager as PW-2 and got marked 21 documents. Thereafter, accused got examined himself as DW-1 and got marked Ex.D1. Complaint filed in P.C. No.181/2011. After hearing the learned counsel appearing for the parties, trial Court convicted the accused under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘Act’ for short) and imposed a fine of Rs.4,00,000/- (Rupees Four Lakhs Only) out of that Rs.3,90,000/- (Rupees Three Lakhs Ninety Thousand Only) was ordered to be given to the complainant and Rs.10,000/- (Rupees Ten Thousand Only) has to be forfeited to the Government. Being aggrieved by the said judgment accused preferred an appeal. The appeal also came to be dismissed.
5. The main grounds urged by the learned counsel for the petitioner/accused are that the trial Court as well as the First Appellate Court without looking into the facts and circumstances of the case, without application of mind has wrongly convicted the accused. It is further submitted that there is no dispute regarding the statutory compliance of provisions of Section 138 of the Act. But however he denies the issuance of the cheques and the signatures found thereon. It is his further submission that the complainant has got examined PW-2 and in her evidence she has categorically deposed before the Court that the signatures found on the cheques are not tallying with subsequent specimen signature given to the Bank. It is the further submission of the accused that the said cheques have been stolen from the drawer of the accused and the same have been misused. Further he submitted that he has given an application to the Bank for stop payment and also given an application for change of address. He has also submitted that the complaint was registered for having misused the cheques as per Ex.D1. It is his further submission that the petitioner/accused has rebutted the said presumption and the trial Court without considering the said aspect has wrongly convicted the accused. It is further submitted that the lower Court ought not to have allowed the complaint and convicted the accused.
6. It is his further submission that the complainant has not produced any document to show that he has the capacity to lend such huge amount to the accused and has not having any capacity to lend the amount. It is further submitted that the Courts below are bound to consider the existence of legally enforceable debt as on the date of the issuance of the cheques, without considering the said aspect has wrongly convicted the accused. On these grounds he prayed to allow the petition and to set aside the impugned judgments.
7. Per contra, learned counsel appearing on behalf of the respondent/complainant vehemently argued and submitted that Ex.P1 to P3 are the cheques dated 20.05.2011 and 20.04.2011 and the signatures found on Ex.P11 which has been given on 19.05.2010 and the receipt given on 21.07.2010 are that of the accused. These materials if collectively taken into consideration, it clearly goes to show that the signature found on Ex.P1 to P3 are that of accused. It is his further submission that though PW-2 deposed before the Court that variation of the signature is found on Ex.P1 to P3 and specimen signature but no such evidence is acceptable in law. It is his further submission that the cheques have not been returned to the holder of the cheque by mentioning that the signatures are not tallying. It is further submitted that the complaint registered only after the service of the legal notice and after service of the notice he has filed the complaint and has given the application to the Bank. He further submitted that the complainant has specifically contended that the cheques have been stolen. But complainant/accused has given the intimation to the Bank only after the service of legal notice. It is further submitted that if signature on Ex.P16 and other signatures are looked into that they are of the accused, the trial Court after considering the said material has rightly come to the right conclusion and has rightly convicted the accused. He further submitted that the trial Court as well as the First Appellate Court after considering the material placed on record have given a concurrent finding.
8. It is further submitted that the scope of this Court in revision to appreciate the facts of the case is very limited. If there is any query, any illegality of jurisdiction then under such circumstances this Court can entertain the revision. He further submitted that the complaint which has been filed has not been persuaded and B-report has been given to the said complaint, that itself goes to show that only in order to overcome the issuance of the cheques and to avoid the liability, the said defence has been taken by the accused. On these grounds he prayed to dismiss the petition.
9. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties, perused the records and the evidence produced in this behalf.
10. It is the specific case of complainant that the accused approached and demanded a hand loan of Rs.3,50,000/- (Rupees Three Lakhs Fifty Thousand Only) and he handed over. It is the specific defence of the accused that the said cheques have been stolen and the signatures are not tallying, though PW-2 has been examined and during the course of cross examination, she has deposed that the signatures found in respect of Ex.P1a, P2a and P3a and the signatures found in Ex.P19a are different. The said fact has been admitted.
11. By going through the cross examination and other material that the accused has not brought on record, what is the admitted signature and how that it has been compared by PW-2. Ex.P1, P2 and P3 even as could be seen from Section 45 of Evidence Act the purpose of the expert opinion is primarily to assist the Court to arrive at a conclusion that the said report is not binding upon the Court. In the circumstances, when even without the expert opinion it is considered to be only primary assistance to the Court to arrive at a final conclusion. But it is not conclusive proof of the signatures or hand writing. When that is the proposition of law then admittedly PW-2 is not an expert and she is working as a Bank employee. Then under such circumstances, the opinion expressed during the course of cross examination is not going to substantiate the fact that it is not the signatures of the accused.
12. Be that as it may, it is not in dispute that the said cheques Exs.P1 to P3 belong to the account of the accused. It is the specific contention of the accused that the said cheques have been stolen but he has not taken any steps immediately when the cheques have been stolen. Though it is contended by the accused that he has given intimation to the Bank as per Ex.P20 on 10.11.2011, but the legal notice as per Ex.P7 has been issued on 12.10.2011 i.e., one month prior to the issuance of the said legal notice dated 10.11.2011. If really he had come to know about the stealing of the cheque then under such circumstances, he could have reacted immediately but he has given the intimation on 10.11.2011. Under the said circumstances, the said contention which has been taken by the accused also does not stand to any reason.
13. Be that as it may, it is not disputed by the petitioner/accused that the statutory compliance as contemplated under Section 138 have been complied by the accused and when the complainant has made out specific case that the said cheques belongs to the accused and he has issued the cheques, he has taken the specific contention of the signature found thereon does not belong to him but he has not proved the said fact. Though during the course of argument he has submitted that the application was filed to send the disputed signature and admitted signature to the opinion of the expert but the said application came to be dismissed. Subsequently, revision filed against the said order came to be dismissed thereby it has been confirmed that itself will not substantiate the defence taken by the accused. In that light the facts and circumstances, that have been perused, clearly goes to show that the respondent/complainant has proved the ingredients of Section 138 of the Act. When the said fact has not been disputed and he has proved the extent of minimum ingredients then under such circumstances, the presumption as contemplated under Section 139 of the Act has to be drawn. The holder of the cheque, received the cheque is of the nature referred to in Section 138 for discharge of any debt or liability. Further the presumption is rebuttable under Section 139 of Negotiable Instruments Act introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused to prove by cogent evidence that there was no debt or liability. Mere denial or rebuttal by the accused was not enough to rebut the said presumption. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Bir Singh Vs. Mukesh Kumar reported in 2019(4) SCC 197, para 18, 20 and 24 and it has been observed as under:
“18. In passing the impugned judgment and order dated 21-11-2017 [Mukesh Kumar v. Bir Singh, 2017 SCC OnLine P&H 5352] , the High Court misconstrued Section 139 of the Negotiable Instruments Act, which mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque.
19. xxxxxxx 20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 :
2001 SCC (Cri) 960] .
21. xxxxxx xxxxxx xxxxxx 22. xxxxxx xxxxxx xxxxxx 23. xxxxxx xxxxxx xxxxxx 24. In K.N. Beena v. Muniyappan [K.N. Beena v. Muniyappan, (2001) 8 SCC 458 : 2002 SCC (Cri) 14] , this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said 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. The accused had to prove by cogent evidence that there was no debt or liability. This 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. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability.
When the Hon’ble Apex Court has also come to the conclusion that mere denial of the signature and the case of the complainant is not enough and there must be cogent and acceptable evidence, then only the presumption can be said to be rebutted. Though several attempts have been made by the accused to rebut the said contentions but the said evidence is not relevant and cogent so as to come to the conclusion that the accused has proved his case and rebutted the said evidence. Looking from any angle, the contention taken by the learned counsel for the petitioner/accused is not acceptable.
14. I have gone through the judgment of the trial Court as well as the First Appellate Court. Both the Courts after going through in detail, about the evidence and material placed on record, have come to a right conclusion, there is no jurisdictional error or any illegality in passing the impugned order. The same orders are liable to be confirmed.
16. In the light of the discussion held by me above the Revision Petition is devoid of merits and the same is liable to be dismissed and accordingly the revision petition is dismissed.
As the main matter is dismissed, I.A. No.2/2017 do not survive for consideration. Hence, I.A. No. 2/2017 is disposed off.
Sd/- JUDGE BVK