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.332 OF 2019 BETWEEN:
Sri. Dhanappa Mahalingappa Wali S/o Late Mahalingappa Aged about 56 years Proprietor, M/s Nandi Enterprises, R/at No.216/350, B.M.Shankarappa Estate, Magadi Main Road, Sunkadakatte, Viswaneedam Post, Bengaluru-560 091.
(By Sri. Dharmapal, Advocate) AND:
Sri. Narasimhamurthy S/o Sri. Krishnappa, Major, R/at No.40, 4th Cross, Sanjeevininagara, Hegganahalli, Viswaneedam Post, Bengaluru-560 091.
...Petitioner ...Respondent (By Sri. K. Raghavendra, Advocate) This Criminal Revision Petition is filed under Section 397 read with 401 of Criminal Procedure Code, praying to set aside the judgment and order of conviction dated 02.03.2018 passed by the XX Additional C.M.M., Bengaluru in C.C.NO.6496/2016 for the offence punishable under Section 138 of N.I.Act and also set aside the order dated 02.03.2019 passed by the LVI Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.545/2018 and acquit the petitioner.
This Criminal Revision Petition coming on for Orders, this day, the Court made the following:
ORDER Petitioner is before this Court challenging the legality and correctness of the judgment passed by LVI Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.545/2018 dated 02.03.2019, which was confirmed by dismissing the appeal.
2. I have heard learned counsel for the petitioner and learned counsel for respondent.
3. The factual matrix as per the case of the complainant before the Court below is that, the complainant and accused were known to each other since 10 years and accused used to take money from the complainant and used to repay it. Because of such acquaintance, the complainant purchased the machineries belonging to the accused to get out of the financial commitments of accused and on the request of accused, the machineries were rented for Rs.20,000/- per month. The accused neither paid security amount nor paid rent as per the terms of agreement. On repeated request and demand, the accused had issued three cheques bearing No.224995 dated 14.02.2014 for Rs.75,000/-, cheque bearing No.430238 dated 19.02.2014 for Rs.1,00,000/- and cheque bearing No.224917 dated 19.02.2014 for Rs.50,000/-. The said cheque were presented for encashment through Syndicate Bank and the same were returned with an endorsement “Exceeds Arrangements” dated 24.02.2014. There afterwards, the complainant had issued legal notice to the accused on 07.03.2015 and it was duly served to the accused, but accused has sent untenable reply dated 14.03.2014. On the basis of the complaint, case was registered.
4. Learned Magistrate took the cognizance, secured the presence of the accused and his plea was recorded and thereafter PW1 was got examined and got marked 22 documents. Thereafter, the statement of the accused was recorded. The accused got examined himself as PW1 and got marked Ex.D1 to D3. After hearing counsel appearing for parties, the Court below convicted the accused. Accused preferred an appeal, appeal also came to be dismissed.
5. It is the submission of learned counsel for the petitioner that the judgment and order of the trial Court is not maintainable and sustainable in law and same is liable to be set aside and the trial Court failed to appreciate that the documents at Ex.P19 to P20 were concocted and created documents. Though the complaint has been registered as against the complainant, that aspect has not been properly looked into by the trial court. It is his further submission that there was no loan transaction and loan which was taken by accused has already been cleared. The said cheques have been taken as a security at the time of transactions, which have been taken place. It is further submitted that on bare reading of the cheque, it clearly goes to show that the said cheques have been tampered with date and thereafter, the same has been presented. That itself clearly goes to show that no such transactions were existing between the parties as on the date of presentation of cheques. It is further submitted that he has registered the case as against the accused on 04.04.2014, but the complaint has been filed subsequently after the complaint has been filed by the accused. Under such circumstances, there are no possibilities of accused giving a cheque dated 11.02.2014. It is his further submission that in the said Criminal case, the raid has been conducted and five cheques have been seized by the police, but on the basis of the complaint three more cheques were there and the same have been misused by the complainant. It is further submitted that the voluntary statement recorded in respect of the complainant clearly goes to show that there was no prosecution, whatsoever existing between the parties and entire amount has been cleared. It is further submitted that the present complaint itself is not maintainable and if any such recovery has to be made, under such circumstances, the said recovery has to be made by filing a suit. Instead of filing a suit, criminal case has been registered. It is further submitted that by using the agreement, he has filed a case for recovery of rent. On these grounds he prays to allow the petition and to set aside the impugned order.
6. Per contra learned counsel appearing on behalf of the respondent-complainant vehemently argued and submitted that the accused has taken the machineries and subsequently given it to the complainant, and thereafter, complainant has given the said machinery to the accused as he did not pay the amount which was due and in that light, he has issued the cheque PW1. It is his further submission that when he admits the signature, then under such circumstances, the burden to rebut the presumption that the cheque issued is in discharge of a debt or liability is on accused. It is further submitted that if a signed blank cheque is voluntarily presented to a payee, the onus would lie on the accused to prove that the cheque was given not in discharge of debt or liability by adducing evidence, but he has not led any such evidence. In order to substantiate the said contention, he relied upon the decision of BIR SINGH V. MUKESH KUMAR reported in AIR 2019 SC 2446. It is further submitted that during the course of trial, the original cheques were not available and Xerox copies of the cheques have been got marked. The certified copies of the cheques have not been presented for marking. Under such circumstances, at this juncture, he cannot contend that original cheques have not been produced. Even he has not objected for marking such documents. He has not examined himself nor the witness to prove the signature. It is his further submission that the voluntary statement given by the complainant is not admissible in accordance with law. It is his further submission that trial Court as well as First appellate court after considering the material placed on record have come to a right conclusion and has rightly convicted the accused. There are no good grounds to interfere with the judgment of the trial Court. On these grounds, he prays to dismiss the petition.
7. On close reading of the material placed on record, the accused and the complainant were known to each other and the complainant has purchased the machineries belonging to the accused to help the accused to get out of the financial commitments and subsequently on request of the accused, machineries were rented out in favour of the accused on monthly rent of Rs.20,000/-. This fact has been admitted by the accused. It is specific case of the complainant that accused, neither paid the security amount nor paid rent, as per the terms of the agreement. Because of repeated request, he has issued the cheques. It is the contention of the learned counsel for the accused that the complaint has been registered as per Ex.D1 for having misused the cheques and he was charged with exorbitant interest and he has obtained the cheques and the said case was investigated and charge sheet was filed. When said case was pending, at that time, the issuance of cheques and giving the same to the complainant does not arise at all. On reading of the records, the accused has admitted his signature present on the cheques. Once he admits the signature on the cheques, then under such circumstances, as per Section 139 of N.I. Act, it mandates that the court has to draw a presumption as contemplated therein to the effect that there exist a legal 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. 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 in paragraph 26, it has 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 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.”
8. In view of the ratio laid down in the above said decision, the accused has admitted the signature present on the cheques and he does not dispute the sale agreement and rent agreement. It is specific contention of the accused that the said cheques have been taken earlier, prior to filing of the complaint. Two versions which have been taken up by the accused is firstly, that said cheques have been issued at the time of previous transactions and because of that, the complaint has been registered and the cheques that have been left out with the complainant have been used by the complainant. If really the said cheques have been left out with the complainant, when five cheques have been seized by virtue of the complaint filed by the accused, nothing prevented him from telling the police that three more cheques are also in possession of the complainant and he has not taken any steps to get back the said cheques. Though he is having legal knowledge to proceed in such cases as he has filed a complaint. Leaving that apart, if really the said cheques have been left out with the complainant, then under such circumstances, he could have intimated to the drawee bank for stop payment or by giving necessary instructions in this behalf. In the absence of any such act of the accused, the contention taken up by the accused that the said cheques have been issued for some other transactions and same have been misused by filing of the complaint, is not acceptable in law. If accused has not disputed the issuance of cheques and his signature on the cheques and since it is also his contention that the earlier transactions has been cleared, but the same is not supported by any cogent and acceptable evidence, the same cannot be acceptable in law.
9. It is well settled proposition of law that the presumption is rebutted by proving it contrary. Section 139 introduces an exception to the general rule as to the burden of proof it shifts the onus on the accused. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability. Mere denial or rebuttal by the accused is not enough. This proposition of law has been laid down Hon’ble Apex Court in the case of BIR SINGH Vs. MUKESH KUMAR reported in (2019) 4 SCC 197, wherein at paragraphs 18, 20, 24, it has been observed as under:
“18. In passing the impugned judgment and order dated 21.11.2017, 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. Presumption 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.” “24. In K.N.Beena v. Muniyappan, 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.”
10. By taking into consideration, the above facts and circumstances, when once the accused admits that it is his signature and cheque has been issued from his account, the court has to draw the presumption as mandate under Section 139 and accused has to rebut the said presumption by cogent and acceptable evidence, in the absence of any such material, that the contention of the accused is not acceptable.
11. Though it is contented by the learned counsel for accused-petitioner that Ex.D1 the voluntary statement clearly goes to show that the said cheques have not been issued for the transactions and the agreement entered into. But it is well settled proposition of law that the said voluntary statement is not acceptable except for the purpose of Section 27 of Evidence Act. In that light, the said contention held is not acceptable. Though it is contended by the accused that Ex.19 and 20 have been created and concocted for the purpose of this case, but there is no material to substantiate the said fact and the said contention does not survive for consideration.
12. Looking from any angle, the petitioner-accused has not made out any good grounds so as to interfere with the judgments of the first appellate Court as well as trial Court.
13. The petition is devoid of merits and same is liable to be dismissed and accordingly it is dismissed.
In view of the dismissal of the main petition, I.A.No.3/2019 does not survive for consideration. Hence, IA.No.3/2019 is disposed off.
Sd/- JUDGE ag