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.1355/2018 Between:
1. Shri Guru Apparels Pvt. Ltd., Represented by its M.D., No.34, Annapoorneshwari Industrial Complex 6th Main Road J.C. Industrial Area Kanakapura Main Road Bengaluru – 560 062.
2. Smt. Rashmi Prabhuraj Ambli 3. Shri Prabhuraj D Ambli Both are Directors of Sri Guru Apparels Pvt. Ltd., No.34, Annapoorneshwari Industrial Complex 6th Main Road J.C. Industrial Area Kanakapura Main Road Bengaluru. ...Petitioners (By Sri. Ko Vijayakumar, Advocate - Absent) And:
M/s. Sancheti Global Inc., 1st Floor, Venkateshwara Arcade No.54, Sudhamanagar Lalbagh Road Cross Bengaluru – 560 027 Represented by its Managing Partner Shri S.M. Hem Prakash Bengaluru – 560 004. ... Respondent (By Sri. S.M. Hem Prakash – Party-in-person) This Criminal Revision Petition is filed under Section 397 r/w. Section 401 of Cr.P.C., praying to set aside the judgment and order of sentence dated 25.10.2018 passed by the Court of the LXV Additional City Civil and Sessions Judge, Bengaluru City in Crl.A.No.222/2016 confirming the judgment and order of sentence dated 12.02.2016 passed by the Court of the XV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.8471/2014 for the offence punishable u/s.138 of N.I. Act and etc., This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
ORDER This revision petition has been filed by the petitioners/accused No.1 to 3 challenging the legality and correctness of the judgment passed by the LXV Additional City Civil and Sessions Judge, Bengaluru City in Crl.A.No.222/2016 dated 25.10.2018 confirming the judgment and order of sentence dated 12.02.2016 passed by the Court of the XV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.8471/2014.
2. The learned counsel for the petitioner/accused remained absent. There is no representation even though the said case has been called out on day to day basis since 10.10.2019. The respondent/party-in-person is present.
3. The case of the complainant before the Court below is that the complainant/partnership firm is represented by Managing Partner Sri Hem Prakash and he has been authorized to proceed with the case. Accused No.1 is company incorporated under the Companies Act, 1956, accused No.2 is the Managing Director and accused No.3 is the Director of accused No.1 is engaged in manufacturing of readymade garments. During the course of the business, accused No.3 on behalf of accused No.1 had approached the complainant for supply of cotton fabrics and raised an invoice bearing No.210/13-14 dated 14.08.2013 and supplied fabrics worth Rs.5,08,205/-. It is further contended in the complaint that for repayment of the said amount, accused No.2 on behalf of accused No.1 with an authorized signatory issued the cheque. The said cheque has been presented by the complainant through his banker and it was dishonoured with shara “Funds insufficient” and was returned with memo dated 27.08.2013. At the instance of accused No.3, once again the cheque was presented for encashment and it was dishonoured. Subsequently, the accused issued five cheques bearing Nos.762455, 762456, 762457, 762459 and 762494 dated 16.12.2013, 21.12.2012, 28.12.2013, 04.01.2014 for a sum of Rs.1,05,205/-, Rs.1,00,000/-, Rs.2,00,000/-, Rs.1,00,000 and Rs.3,000/- respectively. The said cheques have been again presented and the same have been returned with shara “Funds insufficient”. Thereafter, the complainant got issued legal notice on 19.01.2014 and the said notice was duly served on accused Nos.1 to 3 on 23.01.2014. But the accused persons did not make any payment. As such, a complaint was filed.
4. The trial Court took the cognizance, recorded the sworn statement of the complainant and thereafter, secured the presence of the accused. The accused appeared and pleaded not guilty, claims to be tried. As such, the trial was fixed. The complainant got examined authorized person as PW.1 and got marked Exs.P1 to P.27. Thereafter, the statement of accused was recorded under Section 313 Cr.P.C., and accused No.3 examined as DW.1 and got marked Ex.D.1. The trial Court, after hearing the learned counsel appearing for the parties and perusal of records has convicted the accused and the appellate Court also confirmed the same. Being aggrieved by the judgment of Courts below, the petitioners are before this Court.
5. The main grounds urged by the learned counsel for the petitioner are that the Courts below without looking into the material facts and law have erroneously passed the impugned judgment. It is contended that the cheques were not issued by the petitioner/accused. It is further contended that only on the basis of assumption and presumption the Courts below have convicted the accused. On these grounds, he prays to allow the petition and set aside the impugned order.
6. I have carefully and cautiously gone through the submission made by the respondent/party-in- person and perused the records including original records.
7. It is the specific case of the complainant/respondent that the accused has purchased fabric and in order to repay the same, he has issued five cheques, when they were presented they dishonoured. Subsequently, a legal notice was also issued but he has not paid the said amount. In order to prove his case, authorized person of complainant got examined as PW.1 and he has reiterated the contentions of the complaint and during the course of cross- examination of PW.1 it has been suggested that fabric sent by complainant was low quality and as such fabrics were not used and also cheques were not given for the purpose of amount, he denied the same. But as could be seen from the evidence of DW.1, it discloses that he has deposed that it is a false case and complainant supplied fabric of low quality, when it was asked, the complainant told the accused to use the fabrics as far as it can use. When he asked to return the said cheques, he has not returned. He has given the said cheques for having used the fabrics. During the course of cross-examination, he has admitted that he has taken the fabric from the complainant/company and he has given acknowledgment as per Ex.P.2 for having received the said fabrics and he has given cheque as per Ex.P.4 towards payment of the amount of fabrics and the said cheque holds signature of accused No.2. He has also given endorsements as per Exs.P5 and 6 for which the cheques have been bounced as insufficient funds. He has further admitted that he has not given any reply to the notice.
8. A carefully perusal of evidence of PW1 and DW.1 shows the fact that issuance of the cheque has been admitted by the accused for repayment of amount for purchase of fabrics which has been supplied. When once the accused/petitioner admits signature on the cheque, then a duty cast upon the Court to draw a presumption as mandated under Section 139 of Negotiable Instruments Act, 1881 including the presumption that there exists legally recoverable debt or liability. It 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, 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.
9. By keeping in view of the ratio laid down in the above decision, if the contentions which has been taken up by the accused is considered that fabrics supplied were of inferior quality and after purchasing of clothes the cheques have been issued and the said cheques have not been returned but he made a statement stating that fabric is of inferior quality. But when we go through the cross-examination of DW.1, the defence so which has been made out is not substantial to prove the case of the accused. He has admitted the issuance of cheque towards the fabrics which has been supplied by the complainant and he has also admitted the fact that when it was presented it was dishonoured for insufficient funds and a legal notice has also issued for which he has not given any reply. If the said cheque has been issued for supply of fabrics and if there is defects in fabrics, the accused ought to have brought some records to substantiate the said contention. In the absence of proof of any such contention and material document or records it cannot be held that presumption which has been raised has been rebutted. He has produced Ex.D.1 for testing the fabrics. But it is not going to establish the said contention. Looking from any angle, the petitioner/accused has not made out any grounds to interfere with the judgment of Courts below for which it deserves to be confirmed. Hence, petition is dismissed as devoid of merits.
Accordingly, the petition is dismissed.
Sd/- JUDGE nms