IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.596/2019 BETWEEN:
P.Subbaiah Aged about 56 years Junior Engineer Maintenance, Yuraja College, Mysuru-570 024.
(By Sri Sandeep Katti, Advocate) AND:
R. Jayashankar S/o late Rachegowda Aged about 50 years R/a No.175/S, 25th Cross, Hebbal 2nd Stage, Mysuru-570 024.
(By Sri Narayanaswamy H., Advocate for Sri Sangamesh R.B., 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 passed by the III Additional Sessions Judge, Mysuru in Criminal Appeal No.24/2019 vide order dated 22.03.2019 and acquit the petitioner in C.C.No.391/2016 vide order dated 16.01.2019 on the file of the Hon’ble Judicial Magistrate First Class (IV Court) Mysuru, for offence under Section 138 of Negotiable Instruments Act, 1986.
This Criminal Revision Petition coming on for Admission, 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 dated 22.3.2019 passed by III Additional Sessions Judge, Mysuru, in Criminal Appeal No.24/2019.
2. I have heard the learned counsel for the petitioner- accused and the learned counsel for the respondent- complainant. Though said case is listed for hearing on Interlocutory Application, the same is taken up for final disposal.
3. The facts leading to the case are that the complainant and accused were acquainted with each other. Accused sought for financial assistance from the complainant for a sum of Rs.4,50,000/- in the month of February 2015 and hence an amount of Rs.2,50,000/- was given through cheque dated 10.3.2015 and another sum of Rs.1,70,000/- has been paid through cheque on 11.3.2015 and on the same day another sum of Rs.30,000/- was given by way of cash. Accused for refund of the said amount issued the cheque dated 31.3.2016. When it was presented to the Bank it was returned with a shara ‘funds insufficient’ and a legal notice was issued on 22.4.2016 and in spite of service of notice the accused has neither replied to the notice nor given the amount, as such, the complaint was registered.
4. The learned Magistrate took the cognizance. After recording the sworn statement, secured the presence of the accused. Accused pleaded not guilty and as such the plea was recorded.
5. In order to prove the case of the complainant, complainant got examined himself as PW1 and got marked eight documents and thereafter the statement of the accused was recorded under Section 313 of Cr.P.C. Accused got examined himself as DW1, but he has not got marked any documents. After hearing the learned counsel appearing for the parties, the Court below convicted the accused. Being aggrieved by the same, the petitioner- accused preferred the appeal. The lower appellate Court has also dismissed the appeal by confirming the judgment of the trial Court.
6. The main grounds urged by the learned counsel for the petitioner-accused are that the judgment passed by the first appellate Court is contrary to material placed on record. Though the presumption raised under Sections 118 and 139 of Negotiable Instruments Act (herein after referred to as N.I. Act for short) has been rebutted, but the said fact has not been properly considered and appreciated by the Courts below. He further submitted that the accused has admitted the fact that the complainant was a contractor and the amount which has been paid is in relation to the said contract existing. It is his further submission that the complainant was not having any capacity to pay the said amount and he was not having any source of income. It is his further submission that the respondent-complainant has not proved the guilt of the accused. On these grounds he prayed to allow the petition and to set aside the impugned order.
7. Per contra, the learned counsel for the respondent- complainant vehemently argued and submitted that the accused has admitted the issuance of the cheque and the signature thereon. When once he admits the signature, then the Court is duty bound to draw the presumption and the accused has to rebut the said presumption on preponderance of probabilities. No such evidence has been produced to substantiate his case. It is the contention of the respondent that the Courts below have rightly appreciated the material placed on record and have come to a right conclusion. There are no good grounds to interfere with the judgment of the trial Court. On these grounds he prayed to dismiss the petition.
8. On close reading of evidence of PW1- the complainant, though he has substantially contended that an amount of Rs.4,50,000/- has been paid to the petitioner-accused and an amount of Rs.2,50,000/- was paid through cheque on 10.3.2015 and another sum of Rs.1,70,000/- has also been paid through cheque on 11.3.2015, the said fact has also not been disputed by the petitioner-accused and even the accused has admitted the issuance of the chque and he has contended in his defence that the said cheque has been given, as the son of the accused was intending to purchase the car, as he was a Government servant and if he purchases the car in his name, he would be under trouble. That itself goes to show that the said cheque bears the signature of the accused.
9. On going through the defence taken, that itself falsifies the case of the petitioner-accused. At one stretch he says that his son is a Government Servant and if he purchases the car in the name of his son, he will be under trouble and at another stretch in the cross-examination he says that, in order to purchase a car, as a security the said cheque has been given and same has been misused by the complainant. When two inconsistent stands have been taken, then under such circumstances, that itself clearly goes to show that in order to over come the liability he has taken such defence. When the cheque is from his account, then the Court has to presume under Section 139 of N.I. Act that the said cheque has been issued in discharge of debt or liability. Of-course the said presumption is a rebuttable presumption and it is open to the accused to raise defence wherein the existence of legally enforceable debt or liability can be contested. The contention of the accused is that he has given the said cheque as a security for purchasing the car in the name of his son, but for the reasons best known to the accused, he has not examined his son to substantiate the said fact and the inconsistent stands have also been taken by the accused.
10. It is well proposed proposition of law that Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused to prove by cogent evidence that there was no debt or liability.
Mere denial or rebuttal by the accused was not enough, cogent and acceptable evidence has to be produced. This proposition of law has been laid down 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. 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.
11. I have carefully and cautiously gone through the evidence of the accused DW.1, in his evidence also he has taken up the said contentions. In that light, I am of the considered opinion that the trial Court as well as the lower appellate Court after considering the material placed on record have come to a right conclusion and have rightly convicted the accused. There are no good grounds to interfere with the judgment of the trial Court. The same deserves to be confirmed.
The petition is dismissed as devoid of merits.
IA No.4/2019 does not survive for consideration and the same is accordingly disposed of.
Sd/- JUDGE *AP/-