IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE B.A.PATIL CRIMINAL REVISION PETITION NO.364/2019 Between:
Fazil Ahmed S/o Abdul Khudus Aged about 56 years R/at # 150/1, Khaji Thopu Near Ishwarya Tractor Garage, Kannurahalli Road A.R.Extention, Hoskote Taluk Bengaluru Rural District PIN – 562 114 (By Sri K.Shashikanth Prasad, Advocate) And:
S.B.Subramanya S/o Basavaraju Aged about 41 years R/at Shivakote Village Hesaraghatta Hobli Bengaluru North Taluk Bengaluru - 57 (By Sri Dushyanth Aradhya, Advocate) … Petitioner … Respondent This Criminal Revision Petition is filed under Section 397 R/w 401 of Cr.P.C., praying to set aside the order of conviction and sentence and fine imposed by the learned XV Additional Chief Metropolitan Magistrate, Bengaluru, vide judgment dated 14.11.2016 passed in C.C.No.26950/2016 and further be pleased to set aside the judgment passed by the learned LVIII Additional City Civil and Sessions Judge (CCH-59), Bengaluru judgment dated 19.12.2018 passed in Crl.A No.1427/2016 and further be pleased to acquit the petitioner in the above case.
This Criminal Revision Petition coming on for Orders this day, the Court made the following:
O R D E R This revision petition is filed by the petitioner- accused challenging the judgment of conviction and order of sentence passed by XV Additional Chief Metropolitan Magistrate., Bengaluru City in C.C.No.26950/2016 dated 14.11.2016 subsequently, judgment passed by LVIII Additional City Civil and Sessions Judge, Bengaluru in Crl.A No.1427/2016 dated 19.12.2018 confirmed the judgment of the trial Court by dismissing the appeal.
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 orders, with the consent of the learned counsel for the parties, the same is taken up for final disposal.
4. The case of the complainant in brief is that the complainant and one GopalaKrishna had entered into an agreement of sale with accused in respect of sites bearing No.27, 28 and 29 formed in Sy.No.15 situated at Singapura Village, Yelahanka Hobli, Bangalore. The said agreement of sale was fixed at Rs.51,52,000/-. Initially, a sum of Rs.10 lakhs was paid in three installments. Rs.2 lakhs was paid by way of cash, Rs.3 lakhs and Rs.5 Lakhs were paid by way of cheques. Further another sum of Rs.2 lakhs was paid by way of cheque on 09.03.2015. Therefore, totally an amount of Rs.12 lakhs was paid to the accused in advance.
5. When the complainant and Gopalakrishna went to the spot in order to fix fence, at that time, some third party objected for the same and immediately it was intimated to the accused. Accused apologized and agreed to repay the amount of Rs.12 lakhs to the complainant and Gopalakrishna. In that context, accused has issued a cheque for a sum of Rs.6 lakhs, drawn on Co-operative Bank, Hoskote. When the cheque was presented to the bank for encashment, the same was returned with an endorsement ‘funds insufficient’ and ‘signature does not tally’. Thereafter, a legal notice came to be issued and the accused has given a evasive reply. The amount was not paid and as such the compliant was filed.
6. The trial Court took cognizance and secured the presence of the accused and his plea was recorded.
The accused pleaded not guilty and claims to be tried. In order to prove the case of the complainant, the complainant got examined himself as PW.1 and also examined PW.2 and got marked 10 documents as Exs.P.1 to P.10.
7. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied the incriminating material and he got examined himself as DW1 and has also got examined DWs.2 and 3 and got marked documents Ex.D1 to Ex.D5. After hearing the learned counsel for the parties, the Court below convicted the accused.
8. The main grounds urged by the learned counsel for the petitioner- accused are that the lower Court has committed a grave error in convicting the accused. Though the said transaction is civil in nature and that there was an agreement entered into between the parties, the complaint is not maintainable in law.
9. It is his further submission that the said cheque has been given as security and same has been misused by the complainant. It is his further submission that the complainant has not proved that there exists legal enforceable debt or liability. Without looking into all these facts the trial Court has wrongly convicted the accused. On these grounds, he prays to allow the petition and set aside the impugned orders and acquit the accused.
10. Per Contra, the learned counsel for the respondent-complainant vehemently argued and submitted that the complaint itself clearly goes to show that the petitioner-accused was due for a sum of Rs.12 lakhs and in discharge of the said debt he has issued a cheque and when the same was presented, the same was returned with shara “insufficient funds” and “signature does not tally”. Thereafter, complaint has been filed.
11. It is his further submission that during the course of cross-examination of DW1 taken place on 27.09.2016 when he has clearly admitted that the said cheque given bears his signature and he knows the contents of the said cheque and there was an agreement of sale between the complainant and one GopalaKrishna and that there was an amount due to extent of 6 lakhs to each of them. The said fact when once admitted then under such circumstances, the Court has drawn the presumption and the accused has not rebutted the said presumption.
12. The trial Court after considering the material placed on record has come to a right conclusion and has rightly convicted the accused. On these grounds, he prays that the petitioner has not made out any good ground so as to interfere with the judgment of the trial Court and the first appellate Court.
13. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records including the trial Court records.
14. In order to prove the case of the complainant, the complainant got examined himself as PW1 and he has also got examined one more witness. In his evidence, he reiterated the averments made in the complainant. In order to disprove the case of the complainant, the accused got examined as DW1 and he has also got examined two more witnesses. In the cross- examination of DW1, he has admitted that the cheque Ex.P1 bears his signature and he was owing a debt to the extent of Rs.6 lakhs to the complainant and Rs.6 lakhs to one Gopalakrishna and further admitted the agreement of sale. The said factual matrix substantiate the case of the complainant. When once the accused admits the signature on the cheque and the transaction then under such circumstances the accused to rebut the presumption on preponderance of probabilities.
15. It is the contention of the accused that the said cheque has been given for security purpose. But in order to substantiate the said contention, nothing has been produced and when he admits that there was debt of Rs.6 lakhs, then under such circumstances, even the contention taken up by the accused is not acceptable.
16. It is well settled proposition of law that the burden of proof shifts on the accused to prove by leading cogent evidence that there was no debt or liability. But mere denial or rebuttal by the accused was not enough. 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 at paragragh Nos. 18, 20 & 24 of the said decision 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. Presumptions are rules and 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 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 it the trial by leading cogent evidence that there was no debt or liability.”
17. The accused has admitted the signature and issuance of cheque and even the amount due, then under such circumstances, the contention of the petitioner-accused that the complaint is not maintainable as there is agreement of sale and it is civil in nature is not acceptable.
18. Looking from any angle, the petitioner- accused has not made out any good grounds so as to interfere with the judgment of the first appellate Court as well as the trial Court.
Petition is devoid of merits and is liable to be dismissed and accordingly, it is dismissed.
Memo does not survive for consideration and the same is disposed of .
HB/-
Sd/- JUDGE