IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.926/2018 Between:
Prabhakar. A S/o Late S.R.Anand, Aged about 34 years, R/at No.112, 2nd Main Road, Marenahalli, Bengaluru-560 040. … Petitioner (By Sri. Raghavendra. C, Advocate) And:
Praveen Kumar. R S/o K.V. Ramu, Aged about 36 years, R/at No.75, 3rd Main, Vidyaranyanagar, Magadi Road, Bengaluru-560 023. … Respondent (By Sri. Arun Kumar.Y.H., Advocate(Absent)) This Criminal Revision Petition is filed under Section 397 read with 401 of Cr.P.C., praying to set aside the judgment and sentence dated 11.07.2018 passed by the LII Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.90/2016 and set aside the judgment and sentence dated 02.01.2016 passed by the XXIII Addl.C.M.M., Bengaluru in C.C.No.3096/2013.
This Criminal Revision Petition is coming on for Admission, this day, the Court made the following:
O R D E R This petition has been filed by the petitioner/accused challenging the legality and correctness of the judgment passed by the Court of LII Additional City Civil and Sessions Judge in Crl.A.No.90/2016 dated 11.07.2018, where under, the judgment of the conviction and order of sentence passed by the Court of XXIII Additional Chief Metropoliton Magistrate, Bengaluru in C.C.No.3096/2013 dated 02.01.2016 was confirmed.
2. I have heard the learned counsel for the petitioner/accused. Learned counsel for the respondent/complainant 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. The factual matrix of the case of the complainant before the Court below is that the complainant and the accused knew each other and they were good friends. In the month of May-2012, the accused requested for hand loan of Rs.6,50,000/- for business commitments and develop the business and agreed to repay the same within one month. On 14.05.2012, the complainant paid an amount of Rs.6,50,000/- to the accused and the accused has also agreed to pay the interest at the rate of 24% per annum. When the complainant demanded to repay the hand loan, the accused has issued a post dated cheque bearing No.081621 dated 13.10.2012 for Rs.6,50,000/- drawn on Canara Bank. When the said cheque was presented to the bank, it was returned with shara ‘funds insufficient’ in the account of the accused dated 03.11.2012. On 16.11.2012, a legal notice was issued to the accused and it was served upon the accused but the accused did not reply to the said notice and as such, the complaint was registered. Learned Magistrate took the cognizance of the offence, recorded sworn statement of the complainant and secured the presence of the accused. Thereafter, the Court has recorded plea of the accused, read over and explained to him. The accused has not pleaded guilty and claims to be tried. As such, the trial was held.
5. In order to prove the case of the complainant, he has got examined himself as PW.1 and got marked 7 documents as Exs.P1 to P7. Thereafter, the accused was examined under Section 313 of Cr.P.C. He got examined himself as DW.1 and got marked 6 documents as Exs.D1 to D6.
6. After hearing the learned counsel appearing for the parties, the accused was convicted. Being aggrieved by the conviction order, he preferred an appeal before the I Appellate Court and the same was dismissed. Challenging the same, the petitioner/accused is before this Court.
7. The main contention urged by the learned counsel for the petitioner/accused is that the respondent/complainant is not having financial capacity to lend the loan. Though the said fact has been disputed before the trial Court as well as the I Appellate Court, without looking into the said fact, the Courts below have come to a wrong conclusion and conviction order has been passed. It is further submitted that the respondent/complainant has not produced any document to substantiate that he was having financial capacity and there was no transaction between the accused and the complainant. It is his further contention that no notice has been served to the accused and the address mentioned in the notice and the documents produced at Exs.D3 to D6 are differing. But however, without there being any sufficient material, the trial Court as well as I Appellate Court have committed error in passing the order. On these grounds, he prayed to allow the petition and to set aside the impugned judgment of conviction and order of sentence.
8. I have carefully and cautiously gone through the submissions made by the learned counsel for the petitioner/accused and perused the records as well as the Lower Court Records.
9. It is the specific contention of the learned counsel for the respondent/complainant that the accused has borrowed a hand loan of Rs.6,50,000/-. For discharging the said loan, the accused had issued a post dated cheque bearing No.081621 dated 13.10.2012 for Rs.6,50,000/- drawn on Canara Bank. When it was presented to the bank, the same was returned with shara “funds insufficient” and thereafter, a legal notice was issued and it was returned as unclaimed.
10. The first and foremost contention taken by the learned counsel for the petitioner is that the legal notice at Ex.P3 has not been served on him and the said notice has been sent to a wrong address. During the course of cross-examination of PW.1, it has been elicited that he has gone to the house of the accused and at that time, the accused was residing in Marenahalli, Vijayanagar, Bengaluru. He has further deposed that subsequently, he has changed his address. It has also been elicited that since 28 years, the accused was residing in Marenahalli. During the course of cross- examination of PW.1, it has been suggested that in the year 2007, the friend of the accused by name Sharavanna had availed a loan of Rs.1,00,000/- from the complainant and had issued ten blank signed cheques to the complainant and in the ten cheques, the said Sharavanna had handed over the disputed cheque of accused to the complainant by forging his signature and the said cheque was misused. Though the said fact has been elicited during the course of evidence, when once the petitioner/accused has admitted the signature and is taken up the specific contention that the said cheque was given to one Sharavanna and he handed over the disputed cheque to the complainant, then under such circumstances, he has to establish the said fact with cogent and reliable evidence. It is well settled proposition of law that when once the ingredients of Section 138 of Negotiable Instruments Act, 1881 (‘the N.I.Act’ for short) have been proved, when the accused admits the signature on the cheque, then under such circumstances, the Court is duty bound to draw the presumption under Section 139 of the N.I.Act. The said presumption includes legally enforceable debt or liability. This 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. Though he has contested and produced certain evidence, the said evidence is not a cogent and acceptable. This proposition of law has also been reiterated by the Hon’ble Supreme Court in the case of Rangappa Vs. Sri Mohan reported in (2010) 11 SCC 441, wherein, at para No.26, it has been observed as under:
“26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstance therein. As noted in the citations, this 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. However, there can be no doubt that there is an initial presumption which favours the complainant.”
On going through the said paragraph, it clearly goes to show that there must be a cogent and acceptable evidence in rebutting the said presumption, then under such circumstances, the Court can accept the said evidence. Even in the case of Bir Singh v. Mukesh Kumar reported in (2019) 4 SCC 197 at paragraphs 18, 20 and 24, it has been observed 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.
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] .
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.
By taking into consideration of the above said facts and circumstances, the ratio laid down in the above decision, though the petitioner/accused has lead his evidence but there is no consistency in his evidence. He has also deposed that he did not know the transaction between the Sharavanna and the complainant and why Sharavanna has handed over the cheque belonging to the accused has not been properly explained. At one stretch, he deposed that Sharavanna handed over ten cheques to the complainant and at another stretch he has deposed that in ten cheques, the said Sharavanna had handed over the disputed cheque to the complainant and the same was forged and misused. When Sharavanna actually forged the said cheque and handed over the same to the complaint, then under such circumstances, the accused ought to have taken some criminal proceedings against the said Sharavanna.
11. Be that as it may. Though the accused has taken the contention that the cheque has been taken by Sharavanna, he has not been examined by the accused. During the course of arguments, learned counsel for the petitioner/accused submitted that though he has stated that he can examine Sharavanna but as he has incurred huge debt and as such, he is absconding, hence, he was not available as such he did not examine him. That itself clearly goes to show that when once he himself incurred huge debt, whereas, the question of accused giving the cheque in the hand of Sharavanna, he misusing and handing over to the complainant, in that light also, the said contention of the petitioner/accused is not acceptable.
12. Looking from any angle, the petitioner/accused has not made out any grounds so as to interfere with the judgment of the I Appellate Court as well as the trial Court. The same are liable to be confirmed. The petition is devoid of merits and the same is dismissed.
Sd/- JUDGE NR/-