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.272/2019 BETWEEN:
Smt. Manjula J, W/o. Srinivasan, Aged about 44 years, R/at: No.3529, 1st Floor, 2nd Cross, Vijayanagar, Bangarpet – 563 114.
(By Smt. M. Shashikala, Advocate for Sri. S. Balakrishnan, Advocate) AND:
Sri. Muthukumar, S/o. Narayanappa, Aged about 31 years, R/at: 1st Cross, Vijayanagar, Bangarpet – 563 114.
(By Sri. T. Srinivasan, Advocate - Absent) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Cr.P.C., praying to set aside the judgment passed in Crl.A. No.89/2018 by I Additional Session Judge at Kolar dated 12.02.2019 by confirming judgment and conviction passed in C.C. No.880/2018 dated 22.10.2018 on the file of the I Additional Senior Civil Judge and A.C.J.M. Kolar for the offence p/u/s 138 of the N.I. Act sentencing him to pay fine of a sum of Rs.4,00,000/- in default of payment of said fine amount to undergo S.I. for six months. Out of the said amount of Rs.3,95,000/- shall be paid to the respondent as compensation and Rs.5,000/- shall be remitted to the State as fine and acquit the petitioner.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
O R D E R The present revision petition has been filed by the petitioner/accused challenging the judgment passed by the Court of the I Additional Sessions Judge, Kolar in Crl.A. No.89/2018 dated 12.02.2019.
2. I have heard the learned counsel for the petitioner/accused. Learned counsel for the respondent remained absent.
3. Though this case is listed for admission, with the consent of learned counsel for the petitioner/accused, the same is taken up for final disposal.
4. It is the submission of the learned counsel for the petitioner/accused that the judgment of the trial Court is contrary to law and facts of the case. Further it is submitted that the complainant has not established that how he was having Rs.3,00,000/- on 01.11.2016, he has not produced any documents and he has not adduced any evidence regarding avocation, source of income and the bank balance. It is her further submission that even during the course of evidence and cross-examination, he has admitted the fact that he has not produced any documents to substantiate the sources of income. In the absence of such material, the Court below ought to have accepted the contention of the accused and it ought to have acquitted the accused. It is her further submission that the complainant is duty bound to establish the capability of giving the loan. She further submitted that without looking to the said aspect, the Court below as well as the First Appellate Court have come to a wrong conclusion and wrongly convicted the accused. It is her further submission that there was no transaction existing between the complainant and the accused. Even in her evidence and during the course of cross-examination, she has categorically come up with the said case and she has made out a case even then, the Court below has wrongly convicted the accused. She further submitted that the defense taken by the accused is that the said cheque has been mis-used by the complainant though there was no transaction. The said evidence clearly goes to show that the complainant was not having any capacity to lend the said amount. On these grounds, she prayed to allow the petition and to set aside the judgment of the trial Court.
5. I have carefully and cautiously gone through the submissions of the learned counsel for the petitioner/accused and perused the records.
6. Before going to consider the contention of the accused, the factual matrix of the case as contended by the complainant in brief is that the accused and the complainant were acquainted with each other and the complainant has made financial assistance to the accused of Rs.3,00,000/- to purchase a vacant site. He has given the said loan on 01.11.2016 and she issued post-dated cheque bearing No.414021 dated 07.02.2017. When the said cheque was presented for encashment through the banker of complainant, it is returned as unpaid on 08.02.2017 with the endorsement ‘fund insufficient’. Thereafter, he issued legal notice dated 18.02.2017 and the same was served on her on 20.02.2017. To which, the petitioner/accused gave a reply dated 06.03.2017 and no amount has been paid as such, the complaint was filed.
7. Learned Magistrate took cognizance and after recording the sworn statement, has secured the presence of the accused and her plea was recorded. Accused pleaded not guilty and claims to be tried as such, the trial was fixed.
8. In order to prove the case of the complainant, complainant got examined himself as PW.1 and got marked 6 documents. Thereafter, the statement of the accused has been recorded under Section 313 of Cr.P.C. Accused got examined herself as DW.1 and no documents were got marked.
9. After hearing the learned counsel for both the parties, the trial Court convicted the accused. Being aggrieved by such judgment of conviction and order of sentence, accused preferred the appeal. Thereafter, the appeal came to be dismissed by confirming the conviction of the trial Court.
10. The first and foremost contention taken up by the learned counsel for the petitioner/accused is that there was no relationship between the complainant and the accused. The complainant was not having any capacity to lend the said amount and no documents have been produced. It is the specific case of the complainant that the accused approached him and he handed over the loan of Rs.3,00,000/- on 01.11.2016 as such, she issued the cheque - Ex.P1 in discharge of the said loan amount.
11. As could be seen from the records, the accused got examined herself as DW.1. In her cross- examination, she has admitted that Ex.P1 belongs to her and the signature found on Ex.P1(a) belongs to her and on 07.02.2017, there was no amount in her account and other suggestions have been denied. When she admits the signature on cheque - Ex.P1 and it belongs to her account, then under such circumstance, the provisions of Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as ‘the Act”) are attracted. Even during the course of cross- examination of PW.1, it has been suggested that she was having financial transaction with one Shailaja and the cheque given to her has been utilized by the complainant though there was no other transaction with the complainant. But during the course of evidence of DW.1, she has taken up a inconsistent stand that one Gajendra Singh, a resident of Bangarpet had obtained her signature on two blank cheques to facilitate loan from the bank to alter her residential house and the complainant in collusion with the said Gajendra Singh, initiated the proceedings.
12. On going through all these facts, it clearly goes to show that the cheque belongs to the accounts of the accused and it also bears the signature and the same has been mis-used. It is the specific contention of the accused that the said cheque has been issued to one Gajendra Singh but in order to substantiate the said fact, neither the Gajendra Singh has been examined nor the Shylaja with whom she was having a financial transaction has been examined. When once the ingredients of Section 138 of the Act, have been proved, under such circumstance, Section 139 of the Act mandates that a presumption has to be drawn and that presumption includes there exists a legally enforceable debt or liability. Of course, this is in the nature of rebuttable presumption and it is open for the accused to raise defense wherein the existence of legally enforceable debt or liability can be contested. But on going through the evidence, which has been produced by the accused various inconsistent stands have been taken in her defense. It clearly goes to show that the said presumption has not been rebutted. Section 139 of the Act is introduced as an exception to the general rule as to the burden of proof shifts the onus on the accused to prove with cogent and acceptable evidence that there was no debt or liability, mere denial or rebuttal by the accused was not enough.
13. 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, 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.
14. Learned counsel for the petitioner/accused has relied upon the decision of the Hon’ble Apex Court in the case of K. Subramani Vs. K. Damodara Naidu in Crl.A. No.2402/2014 reported in (2015) 1 SCC 99.
15. In the said decision, the present factual situation was not existing and the complainant did not produced any documents to show the capacity and capability of giving loan on the first instance. But in the instant case, the complainant has proved the fact that the accused has issued a cheque - Ex.P1 in discharge of the debt or liability. When the same was presented through banker of the complainant, the same has been dishounoured and subsequently, a legal notice was also came to be issued and reply has also been given. But the accused has taken up inconsistent stand, at one stretch she has contended that there was no transaction between the accused and herself but at another stretch, she has taken up the contention that there was a financial transaction between the accused and the Shailalja and some cheques have been given to Shailaja and the same have been mis-issued and at another stretch in her evidence, she has contended that the said cheque has been given to one Gajendra Singh and he has misused the same in collusion with the complainant. What transactions were existing between Gajendra Singh and herself has also not been brought on record.
16. Keeping in view the ratio laid down in the said decision, it has been held that mere denial or rebuttal by the accused was not enough. The said fact has to be proved with cogent and acceptable evidence. Though the said rebuttal is on preponderance of probability but the said evidence must be acceptable in accordance with law. In the absence of any such material, the said contention which have been raised by the learned counsel for the petitioner/accused are not having any force and the same are liable to be rejected.
17. I have carefully and cautiously gone through the judgment of the trial Court as well as the First Appellate Court. Both the Courts after considering the material placed on record have come to a right conclusion, there is no illegality or perversity in passing the impugned order.
The revision petition is being devoid of merits, the same is liable to be dismissed and accordingly, it is dismissed.
Sd/- JUDGE VBS