IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.96/2019 BETWEEN:
SMT.R.VEENA, WIFE OF ASHWATHNARAYAN, AGED ABOUT 38 YEARS, PROP: VIGNESH UTILITY SERVICES, NO.638, THIRD FLOOR, ‘D’ BLOCK, 2ND STAGE, OPP: ALLAHABAD BANK, DR.RAJKUMAR ROAD, RAJAJINAGAR, BENGALURU – 560 010.
... PETITIONER (BY SRI.M.S.CHANDRASHEKAR BASU, ADVOCATE (ABSENT)) AND:
SMT. THULASAMMA, WIFE OF LATE NAGARAJ K., AGED ABOUT 65 YEARS, RESIDING AT NO.235/1, 2ND CROSS, 4TH MAIN ROAD, CHAMARAJPET, BENGALURU – 560 019.
(BY SRI.B.G.RAJASHEKAR, ADVOCATE) …RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED IN C.C.NO.11820/2013 ON THE FILE OF THE VII ADDITIONAL JUDGE XXXII A.C.M.M., BANGALORE DATED 27.02.2016 AND THE JUDGMENT AND CONVICTION IN CRL.A.NO.353/2016 ON THE FILE OF THE LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE DATED 04.12.2018 AND ACQUIT THE ACCUSED/PETITIONER FORM THE CASE.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The present revision petition has been filed by the petitioner - accused challenging the judgment and order dated 04.12.2018 passed by the LXIII Additional City Civil and Sessions Judge at Bengaluru in Crl.A.No.353/2016, wherein, the judgment of conviction and order of sentence dated 27.02.2016 in C.C.No.11820/2013 passed by the VII Additional Judge and XXXII A.C.M.M., Bengaluru was confirmed, by dismissing the petition.
2. I have heard the learned counsel for the respondent.
3. Though by providing sufficient opportunity by keeping the case on day-to-day basis, the learned counsel for the petitioner nor the petitioner himself has represented the case. Since it is a criminal revision petition, it cannot be dismissed for default and hence, the same is disposed of on merits.
4. The factual matrix of the case before the Court below is that, the complainant and accused were acquainted with each other since six years. Accused was running an office in the name and style ‘Vignesh Utility Services’. She approached the complainant for financial assistance and requested to lend a sum of Rs.10,00,000/- and agreed to repay the same in six months with interest at 1.5% per month. In the second week of June, 2012, the complainant lent the said amount to the accused but after six months, the accused failed to repay the amount. When the complainant requested to repay the said loan amount, accused issued cheque bearing No.992656 dated 27.01.2013, drawn on Indian Bank and when the said cheque was presented, it was dishonoured with an endorsement as ‘Account Closed’ on 29.01.2013. Thereafter, the complainant issued a demand notice on 09.02.2013, but the same was returned with the postal endorsement as no such person in the given address. The accused being aware of the issuance of the notice, she did not make the payment and as she failed to pay the amount, a complaint came to be filed for legal action and compensation. The trial Court taking cognizance of the case, secured the presence of the accused. After serving the copies, her plea was recorded and read over to the accused. Accused pleaded not guilty and claimed to be tried and as such, trial was fixed.
5. Complainant got examined as PW.1 and got marked six documents as Exs.P.1 to P.6 and thereafter, statement of the accused was recorded under Section 313 of Cr.P.C. Accused examined herself as DW.1 and got marked twelve documents as Exs.D.1 to D.12. After hearing the learned counsel for the parties, the trial Court convicted the accused under Section 138 of N.I.Act and thereafter, the accused preferred an appeal and the appeal came to be dismissed.
6. The main contentions raised by the learned counsel for the petitioner - accused in the petition are that, there is no evidence or material on record to show that there was financial transactions said to have been taken place between the complainant and the accused and a false case has been registered. The trial Court and the first Appellate Court have not properly considered the evidence on record and in the cross-examination of the complainant, she has clearly admitted that she has not produced any documents to show that she had enough income to lend the said loan amount and further, she has not paid any income tax. This aspect of the matter has not been properly looked into nor appreciated by the trial Court or the first Appellate Court. The trial Court has also not considered the fact that the complainant was not having any capacity to pay the amount of Rs.10,00,000/-
and hence, the trial Court has erroneously convicted the accused. Before the first Appellate Court, though an application was filed under Section 391 of Cr.P.C. seeking permission to file certain documents, when the case was pending before the first Appellate Court, without giving full opportunity for the parties, the same has been disposed of. It is his further contention that the Court below ought to have allowed to produce the documents by the petitioner – accused, the same has resulted in miscarriage of justice. The trial Court has not appreciated the circumstance under which the accused has signed the blank cheque said to have been given by her. It is for the Court to draw the inference as to whether it was given with an implied authority to fill up the same, the amount ascertained or payable in debt or liability. Without considering the said proposition of law, the trial Court has convicted the petitioner - accused. It is his further contention that no notice has been served on the petitioner – accused. In the absence of the service of notice that the complaint itself is not maintainable. On these grounds, he prays to allow the petition and to set aside the impugned judgments and orders.
7. Per contra, learned counsel for the respondent vehemently argued and contended that the petitioner - accused has admitted the issuance of the cheque. But it is his specific contention that the accused had issued a blank cheque and it has been filled up by the complainant herself. It is his further contention that the existence of the relationship between the accused and the complainant has not been denied. When the issuance of the cheque and signature have been admitted, under such circumstances, the Court has to draw a presumption under Section 139 of N.I.Act and the accused has not rebutted the presumption with cogent and acceptable evidence. The trial Court as well as the first Appellate Court after considering the materials have come to right conclusion and convicted the accused. There are no grounds to interfere with the well founded judgment of the trial Court. It is his further submission that the notice which had been sent to the accused to her address, during the course of cross examination the same has been confronted to her. The petitioner - accused has admitted that she is residing in the said address. When the said service of notice if it is taken as per Section 27 of the General Clauses Act, 1897, a presumption can be drawn that the said notice is deemed to have been served. It is his further submission that the records also indicate that the accused is having high indebtedness and by making adjustment with the postal authorities, an endorsement as ‘no such person in the said address’ was issued by the postal authorities and such inference can be drawn that the service of notice has been complied with. In order to substantiate his contention, he has relied upon the decision of the Hon’ble Apex Court in the case of C.C.Alavi Haji Vs. Palapetty Muhammed and Another reported in 2007 (3) SC Crimes, wherein at paragraph Nos.14 to 17, it is held as under:
“14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh ; State of M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. ] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.
15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.
16. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa (supra), this Court observed: One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons.
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran’s case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.”
On these grounds, he submitted that when there being no good grounds, the present petition is liable to be dismissed.
8. I have carefully and cautiously gone through the materials on record and perused the same.
9. The first and foremost contention which has been taken by the learned counsel for the petitioner – accused is that, the notice which had been sent by the complainant has not been served on the accused. The endorsement which had been made on Ex.P.5, the cover of the notice, indicates as ‘no such person in this address’ and hence, it has been returned to the sender that itself goes to show that it is not a proper service.
10. Accused got examined DW.1. During the course of cross-examination of her, Ex.P.6 – the document issued by Labour Department was confronted to her, the same has been admitted by her. She has also admitted that she is paying tax to the business where she is carrying. On close reading of Ex.P.6, the address mentioned in the notice issued by the Labour Department and the address, which had been mentioned on the legal notice, cause title of the complaint and other records are one and the same. When the same address is found and she is residing there, the notice issued by the Labour Department is also served, under such circumstances, the endorsement which had been made by the postal authorities had to be seen with caution and care.
11. During the course of cross-examination of DW.1, it has been suggested that by using her influence she has got the final report in criminal case which was filed against the accused. That itself goes to show that the accused is highly influential person and she has made efforts to make an endorsement by the postal authorities as ‘no such person in the said address’. When once the complainant establishes the fact that the accused is staying in the given address and when it has been stated that notice has been sent to the said address, it is unnecessary to offer in the complaint or in the evidence that inspite of returning the notice unanswered, it can be deemed that the notice is served or that accused is deemed to have knowledge of the notice. When the accused has taken up the specific contention that no such notice has been served on her, then under such circumstance, the accused has to prove and rebut the presumption about the service of notice that she had no knowledge of the notice or she was not staying or doing any business in the said address or that the address mentioned on the cover is incorrect or that the report of the postman was incorrect. In the absence of any such material, the contention of the accused is not acceptable. For the purpose of this, the afore-extracted citation would answer the legal point. By taking into consideration the facts and factual matrix of the case, I am of the opinion that the contention of the petitioner – accused that no notice has been served is not sustainable in law.
12. The second contention of the petitioner – accused is that, no such transaction existed between the complainant and the accused. It is the specific case of the accused that the complainant used to come to her house often and often and the complainant without the knowledge of the accused has taken away the cheques. The complainant has not filled up all the four cheques. In the evidence, it indicates that the accused admits the signature on the cheque. It is well settled proposition of law that though the accused has contended that she has not filled up the contents on all the four cheques, but under Section 20 of the Act, authorizes the holder of the cheque to complete and present it before the bank. When once the accused admits the signature on the cheque and the cheque has been issued from the account of the accused, then under such circumstance, the Court is duty bound to draw a presumption as provided under Section 139 of the N.I.Act. The said presumption includes that there exists a legal enforceable debt or liability.
13. Of course, the said presumption is rebuttable presumption and it is open to the accused to raise a defence wherein, the existence of legal defence 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 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[(2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] 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 circumstances 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.”
14. By keeping in view the ratio laid down by the Hon’ble Apex Court in the aforesaid citation, if accused has admitted the signature and presumption has been drawn, then the contention of the accused that there was no debt or liability, she is not liable to pay any amount and cheques which have been kept in the house, the same was taken by the complainant is not acceptable. Though the accused has stepped into the witness box, but no rebuttable evidence has been produced to substantiate her case. It is well settled proposition of law that mere denial or rebuttal by the accused was not enough but there must be cogent and acceptable evidence to rebut the presumption. This proposition of law has been laid down by the Hon’ble Supreme 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.
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.”
15. I am conscious of the fact that the said presumption is to be rebutted by cogent evidence and strict proof of evidence is not necessary to be produced by the accused. On going through the documents produced and other material it indicates that the said contentions have not been rebutted with cogent and acceptable evidence. Though Exs.D.1 to 12 have been produced, on perusal of the said records, it is clear that they are not going to throw any light to rebut the presumption which has been raised under Section 139 of the N.I.Act.
16. Looking from any angle that the contentions which have been taken by the learned counsel for the petitioner – accused are not sustainable in law. There are no good grounds to interfere with the well founded judgments and orders of the trial Court and the first Appellate Court. I do not find any infirmity or illegality in passing the judgments and orders of the Courts below and hence, the present petition is liable to be dismissed.
17. Accordingly, the petition is dismissed.
Sd/- JUDGE nvj