IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.1290/2017 BETWEEN:
Mr. Khizer Ali S/o Mr. T. Mohammed Ali Aged about 37 years M/s. Try Shop of Garments Opposite to Himalaya Pharmacy Near Kullappa Circle, Kammanahalli, Bengaluru-560 084.
(By Sri K.Gurudhatta, Advocate for Sri A.C. Balaraj, Advocate) AND:
Smt. R. Chandrakala W/o Sri Muralikrishna Aged about 43 years R/o old No.744/1, New No.5/1, 4th Cross, Triveni Road, Divanarayapalya Bengaluru-560 054.
(By Sri S.G.Bhagavan, Advocate) …Petitioner …Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the judgment dated 09.02.2017 passed by the XV Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.6777/2017 and the judgment dated 14.11.2017 passed by the LXVII Additional City Civil and Sessions Judge, Bengaluru, in Criminal Appeal No.331/2017 and acquit the petitioner in C.C.No.6777/2016 by dismissing the complaint filed by the respondent therein.
This Criminal Revision Petition coming on for Final Hearing this day, the Court made the following:-
O R D E R The present petition has been filed by the petitioner- accused challenging the judgment passed by LXVII Additional City Civil and Sessions Judge, Bengaluru in Criminal Appeal No.331/2017 dated 14.11.2017.
2. I have heard the learned counsel for the petitioner-accused and the learned counsel for the respondent-complainant.
3. The brief facts of the case as per the contents of the complaint are that; the complainant is LIC agent. Accused has been introduced to her and in the month of May 2013 accused approached the complainant and sought for financial assistance to the extent of Rs.6 lakhs for his business needs and to clear the debt. On 18.6.2013 a sum of Rs.5 Lakhs was paid through cheque bearing No.206210 drawn on Canara Bank. Accused has agreed to pay the said amount with 18% interest per annum. But accused did not pay the said amount within six months and he issued a cheque for a sum of Rs.5 Lakhs drawn on Oriental Bank and at the request of the accused the same was presented for encashment on 5.2.2016. The cheque was returned unpaid with a shara “insufficient fund” on 6.2.2016 and thereafter he got issued a legal notice dated 22.2.2016 and the same was served on the accused on 24.2.2016. Thereafter, the accused did not pay the cheque amount and as such he filed the complaint. The Court below took the cognizance and secured the presence of the accused. After hearing, the plea of the accused was recorded. Accused pleaded not guilty, he claims to be tried and as such the complainant was got examined himself as PW1 and got marked six documents. Thereafter, the statement of the accused was recorded and accused got examined himself as DW1 and thereafter after hearing both the parties, the trial Court convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. Being aggrieved of the same, the petitioner-accused has preferred the appeal. The appeal also came to be dismissed by confirming the judgment of the trial Court.
4. The main grounds urged by the learned counsel for the petitioner-accused is that the impugned judgment of both the Courts below are contrary to law and facts of the case. It is his further contention that the loan transaction is of the year 2013 and the complaint was filed in the year 2016, there is inordinate delay. It is his further submission that he has cleared the said loan by paying the entire amount and the same has been entered into a diary and the diary has not been admitted in the evidence. It is his further submission that the accused claimed exorbitant interest over the amount lent. On these ground he prayed to allow the petition and to set aside the impugned order.
5. Per contra, the learned counsel appearing on behalf of the respondent-complainant vehemently argued and contended that the accused has admitted the transactions and he has specifically taken the defense that he has paid the entire amount.
6. In order to substantiate the said fact no piece of evidence has been produced. It is his further submission that the accused has not produced even a private diary or copies of the diary mentioning the payments said to have been made. When the accused admits the signature found on Ex.P1 and he also admits the borrowing of amount of Rs.5 Lakhs, then under such circumstances the presumption as contemplated under Section 139 of the Act has to be drawn and the burden shifts upon the accused to rebut the said presumption by cogent and acceptable evidence that he has repaid the said amount. In the absence of any such material, the case of the complainant stands proved and accused is liable to be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act.
7. It is his further submission that the operative portion of the trial Court is not justifiable. The trial Court ought to have passed an order of immediately arrest the accused after the conviction and taken him to custody. On these grounds he prayed that the petitioner-accused has not made out any good grounds and he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records.
9. Respondent-Complainant has proved the ingredient of Section 138 of Negotiable Instruments Act. On close reading of the evidence of DW1 he has clearly admitted the fact that he has obtained the loan and an amount of Rs.5 Lakhs has been credited to his account through cheque and he has specifically contended that he has given the cheque Ex,.P1 by putting his signature and other contents are not belonging to him. He further contended that he has cleared the said loan with interest and has paid the amount of Rs.10 Lakhs.
10. It is well established proposition of law that when once the accused admits the signature on the cheque and he has also admitted the liability, then under such circumstances the presumption mandated by Section 139 of the Negotiable Instruments Act has to be drawn, then the burden shifts upon the accused to rebut the said evidence with cogent and acceptable evidence that he has clear the said debt or liability.
11. Mere denial or rebuttal by the accused is not enough. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Bir Singh v. Mukesh Kumar reported in (2019) 4 SCC 197, wherein at paragraphs 18, 20 and 24 reads 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. xxxxx xxxxx xxxxx 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. xxxxx xxxxx xxxxx 22. xxxxx xxxxx xxxxx 23. xxxxx xxxxx xxxxx 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.
12. On going through the ratio laid down in the above decision and the evidence led by the accused he has contended that he has paid the entire amount and the same has been entered into a diary, for the reasons best known to him he has not produced private diary copies which the accused has mentioned with regard to the payments made to the complainant. In the absence of any such material, the contention remains as the contention without rebutting the said presumption.
13. I am conscious of the fact that in order to rebut the said presumption, it is going to be rebutted on preponderance of probabilities, no strict proof is required. But however, neither in the evidence he has discussed that how he has paid to the extent of Rs.10 Lakhs nor he has examined any witness to substantiate his contention. In the absence of any such material the burden has remained with him and if the burden has not been rebutted, then the case of the complainant stands proved and accused is liable to be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act.
14. I have carefully and cautiously gone through the judgment of the appellate Court as well as the trial Court. The trial Court as well as the appellate Court have gone in detail with regard to evidence and material placed on record and have come to a right conclusion. There is no perversity or illegality in passing the said judgment. The said judgments does not require any interference with the hands of this Court.
15. In the light of the discussions held by me above, this Criminal Revision Petition is being devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.
The registry is directed to sent back the Lower Court Records forthwith.
IA No.2/2019 does not survive for consideration and the same is accordingly disposed of.
Sd/- JUDGE *AP/-