IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1442 OF 2018 BETWEEN:
B. Manjunatha Aged 33 years, S/o Badhregowda, R/at Nar MPCS, H.K.V.Nagara, Channegowdanadoddi, Maddur Town, Maddur, Mandya District-571 428.
(By Sri. Chandrahasa Rai. B, Advocate) AND:
S. Vasanth Kumar, Aged 24 years, S/o Shiva, R/at H.K.V Nagara, Channegowdanadoddi, Maddur Town, Maddur, Mandya District-571 428.
...Petitioner ...Respondent (By Sri. K.R.Sathish, Advocate) This Criminal Revision Petition is filed under Section 397 read with 401 Cr.P.C, praying to set aside the conviction and sentence Judgment dated 13.04.2018 passed by the III Additional Civil Judge and JMFC at maddur in C.C.No.779/2015 and to set aside the conviction and sentence judgment dated 24.11.2018 passed by the V Additional District and Sessions Judge, Mandya in Crl.A.No.27/2018 confirming the trial Court Judgment and to acquit the revision petition.
This Criminal revision petitions coming on for Orders, this day, the Court delivered the following:
O R D E R The present Criminal revision petition has been filed by the petitioner-accused, challenging the Judgment passed by V Additional District Sessions Judge, Mandya in Crl.A.No.27/2018 dated 24.11.2018 whereunder the Judgment of conviction and order of sentence passed by III Additional Civil Judge, JMFC, Maddur in C.C.No.779/2015, was confirmed challenging the legality and correctness the petitioner-accused is before this Court.
2. I have heard the learned counsel for the petitioner-accused and the learned counsel for the respondent.
3. Though this case is listed for admission, with the consent of the learned counsel appearing for the parties same is taken up for final disposal.
4. The factual matrix of the case of the complainant before the Court below is that, the complainant and accused are well acquainted with each other and on such acquaintance, the accused borrowed a sum of Rs.4,00,000/- on 20.11.2014 from the complainant for his legal necessity. The accused did not keep his promise. After the completion of the agreed period, the complainant demanded the accused for repayment of amount. Then the accused issued cheque bearing No.373570 dated 25.02.2015, drawn on ‘Syndicate bank, Somanahalli Branch for Rs.4,00,000/- and requested to present the same for collection. As per such request the complainant presented the said cheque to his ‘Kauvery Grameena Bank, Maddur Branch and the said cheque was dishonored with an endorsement “Funds Insufficient” on 03.03.2015. Thereafter, legal notice was issued on 12.03.2015 calling upon the accused to repay the amount. The said notice was returned with shara that the article has been delivered to the accused no reply has been given, as such the complaint was filed under Section 138 of Negotiable Instruments Act.
5. The learned Magistrate took the cognizance, secured the presence of the accused and after hearing the accused, plea was recorded. Accused pleaded not guilty, he claimed to be tried and as such the trial was fixed. In order to prove the case of the complainant, he got examined himself at PW.1 and got marked 5 documents from Ex.P1 to Ex.P5. Thereafter, the statement of the accused was examined under Section 313 of Cr.PC. The accused has not lead any evidence nor got marked any documents. After hearing the learned counsel appearing for the parties, the trial Court convicted the accused and sentenced him to pay a fine amount of Rs. 4,05,000/- and out of 4,05,000/-, Rs.4,00,000/- is ordered to be paid to the complainant. Challenging the same, the appeal was preferred and the appellate court also confirmed the Judgment of the trial Court.
6. It is the contention of the learned counsel for the petitioner-accused that the court below erroneously passed the impugned judgment without considering the oral and documentary evidence. It is further contented that no opportunity has been given to the accused to led his evidence and produce the documents and as such he prays to remand the matter to the trial Court by giving full opportunity to the petitioner-accused. It is further submitted that there was no legally enforceable debt or liability as the said cheque has been issued as a security for the chit transaction. It is further submitted that Cheque-Ex.P1 on its bare eyes indicates that hand writing and the signature is changed and blank cheque has been filled by the complainant and made use of the said cheque. It is his further submission that only a sum Rs.1,40,000/-was taken by the accused and he has already returned more than Rs.2,20,000/-, but the complainant by filling it as Rs.4,00,00/- has misused the cheque given as security and has filed a false complaint. On these grounds, he prays to allow the appeal and set aside the impugned order.
7. Per contra, learned counsel for the respondent vehemently argued and submitted that the accused has taken up the specific defence in the cross examination of PW1 and he was holding two chits with the complainant for a sum of Rs.2,00,000/- each. He has further suggested that the said cheque have been given to the complainant as a security of chit amount. But the petitioner-accused has not entered the witness box and not rebutted the said presumption and even during the course of cross examination of PW1 nothing has been elicited to discard his evidence. He further submitted that once the presumption has been drawn that has been to be rebutted with cogent and acceptable material, the trial court and first appellate court have rightly appreciated the evidence and have come to a right conclusion. There are no good grounds to set aside the judgment of the trial Court. On these grounds, he prays to dismiss the petition.
8. I have perused the submission made by learned counsel appearing for the parties and perused the records including the trial court records which have been secured in this case.
9. As could be seen from the first contention which has been taken up by the learned counsel for the petitioner-accused is that no opportunity has been given to the accused to led the evidence. By going through the records, 313 statement of the accused was recorded on 28.07.2016 and thereafter the case was posted for evidence of accused. Subsequently, it was adjourned on 17.09.2016, 20.10.2016, 28.11.2016 and accused remained absent and NBW was issued and thereafter he was taken to custody on 14.12.2016, again it was posted for evidence of the accused on 15.12.2016. On that day also the evidence was not recorded. Again it was posted for the evidence of the accused on 28.02.2017 and 15.02.2017 and he has not led any evidence. The order sheet clearly goes to show that more than a year the case has been adjourned for the purpose of leading evidence of the accused. But for the reasons best known to the accused, he has not led any evidence.
10. By going through the said order sheet it clearly goes to show that in spite of giving sufficient opportunity, the said opportunity has not been properly utilized by the accused and has not led any evidence. Under such facts and circumstances, the contention taken up by the learned counsel for the petitioner-accused that no opportunity has been given and he may be given a opportunity by remanding the case does not have any force and same is liable to be rejected.
11. Second contention which has been taken up by the learned counsel for the petitioner-accused is that there was no legal recoverable debt or liability and the said cheque has been issued as a security for chit transaction and the same has been misused by the complainant. It is well established proposition of law that when once the complainant establishes the ingredient of Section 138 of N.I.Act then under such circumstances, that presumption has to be drawn under Section 139 of the N.I.Act. As could be seen from the records it shows that the cheque has been issued on 25.02.2015 and the same was presented within the period of limitation on 03.03.2015 and the same was returned with the shara “Fund Insufficient” and thereafter a legal notice has been issued on 12.03.2015 and even the postal letter marked at Ex.D5, it indicates that said notice has been sent on 13.03.2015 to the accused and he has not given any reply and not explained anything. Under the said facts and circumstances, it cannot be held that no legal notice has been served on the accused. When once the complainant establishes the ingredient of Section 138 of N.I.Act then under such circumstances the Court has to draw a presumption under Section 139 of the N.I.Act. The said presumption includes a presumption that there exist a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. 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 in paragraph 26, it has observed as under:
“26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.”
12. Keeping in view the above facts and circumstances, if the evidence and material is taken on record, during the course of cross examination of PW1 it has been suggested that he had given two cheques to the complainant towards the chit transaction as a security. But in order to rebut the said presumption, he has not stepped into witness box nor given reply to the legal notice. Though it is contended during the course of cross examination that the hand writing mentioned in Ex.P1 and the other hand writing differs, but on bare reading of the Ex.P1 the signature found appears to be that of accused. When once it appears to be the signature of the accused, then under such circumstances, if the cheque is given in blank, the holder of the cheque will be entitled to fill up the same and present the same to the bank. Section 20 of the N.I. Act provides for the same. Thus, it is proved that the said cheque bears his signature then a presumption can be drawn that it has been given for the discharge, in whole or in part, of any debt or other liability. In that light also the said contention is not acceptable.
13. Accused has taken up the specific defence that he had two cheque transaction of Rs.2,00,000/- each and the said cheque has been given as a security. But in the absence of any material and evidence, the said contention is not acceptable and not proved. This Court is conscious of the fact that the presumption can be rebutted in the course of cross-examination of PW1 but even in the cross examination of PW1 nothing has been elicited so as to discharge the said burden.
14. It is well settled proposition of law that the presumption is rebutted 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. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability. But mere denial or rebuttal by the accused is not enough. This proposition of law has been laid down Hon’ble Apex Court in the case of BIR SINGH Vs. MUKESH KUMAR reported in (2019) 4 SCC 197, at paragraphs 18, 20, 24, it has been observed as under:
“18. In passing the impugned judgment and order dated 21.11.2017, 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.”
“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. Presumption 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.” “24. In K.N.Beena v. Muniyappan, 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 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.”
15. By going through the said proposition of law and the evidence and materials placed on record, the accused has not rebutted the said presumption. Even it is well settled proposition of law that the revision Court will interfere if a wrong order is passed by the Court having jurisdiction, in the absence of jurisdictional error, this Court will be very slow in interfering with such order. In that light also the orders of the trial court are not having any jurisdictional error and after discussing the factual matrix of the case, the trial courts have rightly come to a right conclusion and has rightly convicted the accused. Therefore, petition is devoid of merits and same is liable to be dismissed and accordingly petition is dismissed.
Registry is directed to send back the lower court records forthwith.
Sd/- JUDGE ag