IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.461/2017 Between:
Mr. Anourine Pais S/o A.G. Pais, 53 years R/at No.1189 Nehru Main Road HRBR Layout Kammanahalli Bangalore – 560 084.
Dead by LRs 1(a) Mrs. Grace Maria Gertrade Pais W/o Late Anourine Pais 53 years, R/at No.1189 Nehru Main Road HRBR Layout Kammanahalli Bangalore – 560 084. ...Petitioner (By Sri. Dr.R. Ramachandran, Advocate - Absent) And:
Mr. K.T. Sharana Gouda S/o. R. Thimmana Gouda Aged about 56 years R/at No.2444, Site No.15 Kacharakanahalli village Kasaba Hobli Bangalore North Taluk Bangalore – 560 084. ... Respondent (By Sri. S.G. Hegde, Advocate - Absent) This Criminal Revision Petition is filed under Section 397 r/w. Section 401 of Cr.P.C., praying to set aside the order dated 17.02.2017 passed by the LXIII Additional City Civil and Sessions Judge, Bengaluru City in Crl.A.No.104/2016 and setting aside the order of conviction convicting the appellant in C.C.No.26052/2014 by the XV Additional Chief Metropolitan Magistrate, Bengaluru City vide order dated 06.01.2016.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
ORDER The present revision petition has been filed by the petitioner challenging the judgment passed by the LXIII Additional City Civil and Sessions Judge, Bengaluru City in Crl.A.No.104/2016 dated 17.02.2017 whereunder the appeal came to be dismissed by confirming the judgment of conviction and order of sentence passed by the XV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.26052/2014 dated 06.01.2016.
2. The learned counsel for the parties and the petitioner and respondent are absent. Though this case is listed on day to day basis from 10.10.2019 to till today, there is no representation. Since the revision petition cannot be dismissed for default, the same is considered on merits and disposed off by this order.
3. The case of the complainant in brief is that the accused and the complainant are acquainted with each other and the accused approached the complainant in the month of April, 2014 for financial assistance of Rs.15 lakhs for clearing loans for which the complainant has lend a loan of Rs.15 lakhs to the accused by way of cash. The accused assured to repay the amount within three months and on persistent demand, the accused issued a cheque for the said amount dated on 09.06.2014 drawn on Vijaya Bank.
When the complainant presented the said cheque through his banker, the same was returned with an endorsement of “Funds insufficient” on 10.06.2014. Thereafter, the complainant informed the said fact to the accused but there was no reply. Ultimately, on 04.07.2014 the complainant got issued legal notice. The notice was duly served on accused on 06.07.2014 and he has issued untenable reply to the notice on 14.07.2014. As the accused has not paid the amount, a private complaint was filed.
4. The learned Magistrate took cognizance and secured the presence of the accused. After service of summons, the plea of the accused was recorded. The accused pleaded not guilty and claimed to be tried. As such, the trial was fixed. In order to prove the case of the complainant, the complainant got himself examined as PW.1 and marked Exs.P.1 to P.12. Thereafter, statement under Section 313 Cr.P.C., of the accused was recorded and the accused got examined himself as DW.1 and one witness as DW.2 and got marked Exs.D.1 to D.4. After hearing the learned counsel appearing for the parties, the Court below convicted the accused. Assailing the same, an appeal was preferred by the accused and the same was also dismissed by confirming the judgment of the trial Court. Aggrieved by the judgment of the Courts below, petitioner/accused is before this Court.
5. The main grounds urged in the petition by the petitioner/accused are that the trial Court as well as the appellate Court have not properly considered the factual matrix of the case and admission given by the respondent/complainant have wrongly convicted the accused. It is his further contention that the respondent/complainant was not having any financial capacity to advance the loan and no documents have been produced to substantiate the said fact. In the absence of such material, the Court below ought not to have convicted the accused. He further contended that the appellate Court as well as the trial Court have failed to appreciate the fact that admission made by the respondent regarding loan agreement which has been executed as per Ex.D.1. Non consideration of the said fact has been resulted into miscarriage of justice. It is further contended that Ex.P.1/disputed cheque and another cheque bearing No.38240 were given as security to the respondent at the time of execution of loan agreement. The said aspect has not been properly considered and appreciated by the trial Court and the Courts below without considering the case on merits have wrongly convicted the accused. On these grounds, he has requested to allow the petition and to set aside the impugned order of the Courts below.
6. I have carefully and cautiously gone through the records and the material placed on records.
7. The main defence which the accused has taken in the case is that the accused has already paid the loan amount which has been taken through cheque. Instead of returning the said cheque issued for security purpose, the same was misused by the complainant. When once the accused admits taking of loan and contend that he has repaid the said amount and admits his signature on Ex.P.1 which belongs to him, then the duty cost upon the Court as mandated under Section 139 of Negotiable Instruments Act, 1881 to draw presumption that there exists legally enforceable debt or liability. This is of course in the nature of rebuttable presumption. It is for the accused to rebut the same by cogent and acceptable evidence. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Rangappa Vs. Sri.Mohan reported in (2010) 11 SCC 441, wherein at paragraph 16 it has been observed as under:-
16. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that:
“6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption.
What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court.
The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered ”
Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the High Court recorded a finding of conviction.
8. Keeping in view of the ratio laid down in the above decision, the factual matrix if they are looked into, the accused has taken up the contention that he has repaid the loan amount through cheque but in order to substantiate the said facts, no documents have been produced. In the absence of such documents, it cannot be held that the accused has cleared the loan which is taken up from the complainant. It is his further specific contention that the accused had sold the flat to the complainant for a sum of Rs.1,24,00,000/- and an agreement was entered into in this behalf for a sum of Rs.11 lakhs and in that light, he has produced Ex.D.1. It is the contention of the accused that Ex.D.1 got executed for having taken loan from the complainant for the purpose of finalizing some interior work of the flat. But in order to substantiate the said fact, nothing has been elicited during the course of cross-examination. When the complainant proved the capacity to lend loan and the accused admit that he has borrowed the money and he has returned the same and he also admits his signature on Ex.P.1 and contends that even though he returned the amount, the said cheque has not been returned and the same has been misused, but neither he filed any complaint nor any other proceedings have been initiated in this regard. In the absence of such material, the said contention has remained as contention without there being any proof. It is well settled proposition of law that presumption is rebuttable by proving the contrary. Section 139 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 of the accused is not enough. This proposition of law has been laid by the Hon’ble top Court in the case of Bir Singh v. Mukesh Kumar reported in (2019) 4 SCC 197 it has been observed that Section 139 mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. However, the presumption is rebuttable by proving to the contrary. Section 139 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. For the purpose of brevity, I quote paragraphs 18, 20, and 24 which read 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.
9. By keeping in view of the ratio laid down in the above decision, if the factual matrix of the case are looked into, though several contentions were taken that there is inconsistency in taking up the contention by the accused but none of the grounds have been proved with cogent and acceptable evidence. Hence, I am of the considered opinion that the petitioner/accused has not made out any good grounds to interfere with the judgment of the Courts below and the same are deserve to be confirmed.
10. The trial Court as well as appellate Court after considering the facts and other materials placed on record have come to a right conclusion and have rightly convicted the accused. Therefore, the petition is devoid of merits and liable to be dismissed.
Accordingly, the petition is dismissed.
Sd/- JUDGE nms