IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.6/2019 BETWEEN:
Mrs. Sheela @ Sheela Suresh W/o Suresh Aged about 52 years R/at 1st Floor, ‘Venkateshwara Nilaya’ No.138, 1st Cross, Karnataka Layout, Mahalakshmipuram Bengaluru-560 086.
(By Sri K.Chandrashekar Achar, Advocate) AND:
Mr. Jayanna J.G. S/o late Gangaiah Aged about 58 years R/at No.991, 11th Main, 1st Block, 3rd Stage, Basaveshwaranagar Bengaluru-560 079.
(By Sri Y.D.Shivashankara, 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 11.12.2018 passed in Criminal Appeal No.1151/2016 on the file of the LXVII Additional City Civil and Sessions Judge, Bengaluru and set aside the judgment dated 07.09.2016 passed in C.C.No.19171/2014 by the Court of the 13th ACMM, Bengaluru and acquit the petitioner/accused by allowing the above Revision Petition.
This Criminal Revision Petition 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 judgment passed by LXVII Additional City Civil and Sessions Judge, Bengaluru, in Criminal Appeal No.1151/2016 dated 11.12.2018, whereunder the judgment of conviction and order of sentence passed by XIII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.19171/2014 dated 7.9.2016 was confirmed and appeal was dismissed.
2. I have heard the learned counsel appearing for the petitioner-accused. The learned counsel for the respondent-complainant remained absent.
3. The gist of the case of the complainant before the Court below is that the complainant and accused were known to each other and accused had approached and requested the complainant for a hand loan of Rs.2,00,000/- in the first week of December, 2013 to meet out his family and urgent needs. On request, complainant paid hand loan of Rs.2,00,000/- in the second week of December, 2013. Accused promised to repay the same within three months, but he postponed and issued two post dated cheques bearing Nos.871867 dated 13.3.2014 and No.871870 dated 25.3.2014 for a sum of Rs.1,00,000/- each and when the said cheques were presented for encashment, the same have been dishonoured with a shara ‘Account Closed’ on 30.4.2014.
4. Complainant got issued legal notice on 27.5.2014.
The said notice returned as unclaimed and as accused did not make any payment, complaint was registered.
5. The learned Magistrate took cognizance by recording the sworn statement and secured the presence of the accused and thereafter the plea of the accused was recorded. The accused pleaded not guilty, he claims to be tried and as such trial was fixed.
6. Complainant got himself examined as PW1 and got marked 10 documents, thereafter statement of the accused was recorded and the matter was posted for evidence of the accused. Accused did not led any evidence and he got marked Ex.D1 during the course of evidence of PW1. After hearing the learned counsel appearing for the parties, the accused was convicted. Being aggrieved by the same, the petitioner-accused preferred the appeal. The appeal also came to be dismissed by confirming the judgment of the trial Court.
7. It is the submission of the learned counsel for the petitioner-accused that the trial Court as well as the first appellate Court without giving full opportunity to the accused and without looking to the material placed on record have disposed of the case hurriedly. It is his further submission that the evidence of PW1 clearly indicates that no such loan transaction was existing between the complainant and accused and the complainant has failed to establish the fact that there is no debt or liability. Even then the Courts below have erroneously convicted the accused. It is his further submission that the notice has not been served. The address mentioned in the notice and the cover sent through postal authorities has been corrected and the same has been returned with a shara ‘not claimed. This aspect has also not been properly appreciated by the trial Court. It is his further submission that the case of the complainant indicates that in the first week of December the loan has been taken, but the subsequent document indicates that the same have been taken in the month of January, 2014. Then, there is no consistency in the pleadings and the evidence of PW1 complainant. If there is no consistency, then under such circumstances, the benefit of doubt should have been given to the accused and accused should have been acquitted for the charges leveled against him. On these grounds he prayed to allow the petition and to set aside the impugned judgment of the trial Court.
8. I have carefully and cautiously gone through the submissions made by the learned counsel for the petitioner-accused and I have also gone through the records including the lower Court records as well as the appellate Court records.
9. The first and foremost contention which has been taken up by the learned counsel for the petitioner-accused is that no opportunity has been given to the petitioner- accused to lead his evidence. The order sheet of the lower Court indicates that complainant got himself examined as PW1 and got marked Exs.P1 to P8 on 4.9.2014. Thereafter, the case has been posted for cross-examination of the complainant-PW1 and subsequently the cross-examination has not been done for a long time till 5.5.2016 and thereafter the case was posted for recording of the statement of the accused and the statement of the accused was recorded on 29.6.2016 and the case was posted for evidence of the accused on 11.7.2016. On that day, the time was prayed and case was adjourned to 22.7.23016 and on 22.7.2016 again the time was sought, the same was rejected and the case was posted for arguments and thereafter the arguments were heard for five consequent adjournments and thereafter the case was posted for judgment. All these facts which have been narrated above clearly goes to show that the accused has been given sufficient opportunity to cross-examine PW1 and thereafter the case has been posted for his evidence and he has not availed the opportunity which has been given. No cogent and acceptable grounds have been stated as to why he has not led his evidence before the Court below during the course of argument. The learned counsel for the petitioner submitted that he has filed an application before the appellate Court and the appellate Court has also not considered the said application and the same has been rejected. By going through the records itself clearly go to show that the petitioner-accused is not diligent in conducting the case. He has taken nearly about two years for cross-examination and when an opportunity has been given to him, he has not led his evidence. In that light, the contention taken up by the learned counsel for the petitioner-accused that no opportunity has been given does not survive for consideration.
10. The second contention which has been taken by the learned counsel for the petitioner-accused is that the notice has not been sent and the address has been corrected in Ex.P5. Notice addressed earlier was typed as Smt.Sheela and thereafter some whitener has been put and in front of Smt.Sheela, “Suresh w/o not known” and age major has been mentioned and even on the cover it has been mentioned as Sheela, subsequently Suresh has been included and necessary corrections has been made.
11. On close reading of the said cover it indicates that before the cover has been posted through the postal authorities, necessary corrections have been made and thereafter it has been sent and said endorsement has been made as not claimed. When a registered article has been sent to the address given therein and after an intimation is given and if it has not been claimed, then under such circumstances, it appears to be sufficient service.
12. Be that as it may. It is not the case of the accused that she is not residing in the given address mentioned in Ex.P5. When the address mentioned in Ex.P5 has not been denied and if the postal authorities have made endorsement that the intimation has been given and the same has not been claimed, then under such circumstance it cannot be held that there is no proper service of notice. In that light also the contention of the learned counsel for the petitioner-accused is not having any force and the same is liable to be rejected.
13. The next contention of the petitioner-accused is that there is no loan transaction and the transaction, which is alleged in the complaint, notice and the evidence there is no consistency but the complainant got examined himself as PW.1. In his affidavit evidence, he has reiterated what has been stated in the complaint. Unfortunately, in the cross-examination it has been suggested that the accused has given two cheques of Central Bank of India as security and one stamp paper and the same has been admitted by the complainant in his evidence. When the fact of issuance of cheques and signature is admitted by the accused, under such circumstance, the Court is duty bound to draw a presumption mandated under Section 139 of the N.I. Act, 1881. It includes a presumption that there exists a legally enforceable debt or liability. Of course, the said presumption is a rebuttable presumption, it is open to the accused to raise a defense wherein, the existence of legally enforceable debt or liability can be contested. The said 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. Unfortunately by going through the records for the reasons best known to the accused, he has not stepped into the witness box. Though it is his case that no loan transaction has taken place as contended by the accused, but when he admits the issuance of cheques and the signature, under such circumstances, the burden shifts upon him. Section 139 of the N.I. Act introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused to prove by cogent and acceptable evidence that there was no debt or liability. Mere denial or rebuttal by the accused was not enough. This proposition of law 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. xxxxxx xxxxxx xxxxxx 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.”
15. Keeping in view the above said factual matrix and the proposition of law laid down by the Hon’ble Apex Court, no efforts have been made by the accused to rebut the said presumption. I am conscious of the fact that the accused need not step into the witness box and lead his evidence. Even during the course of cross-examination of PW.1, he can bring the material to show that no such loan transactions were existing and no amount has been paid. In the absence of any such rebuttal, it can be safely held that the complainant has proved the case beyond all reasonable doubt.
16. Looking from any angle, the petitioner/accused has not made out good grounds so as to interfere with the judgments of the First Appellate Court as well as the trial Court.
In that light, the revision petition is being devoid of merits, the same is liable to be dismissed and accordingly, it is dismissed.
Sd/- JUDGE *AP/VBS