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.557/2017 BETWEEN:
Sri. Ganesh Shetti S/o late H.D.Shetti Aged aobut 47 years R/at No.7/43, 2nd Floor 2nd Cross, Venkateshwara Layout J.P.Nagar 8th Phase Bengaluru-560 076.
(By Sri. Nithyanand V. Naik, Advocate) AND:
Sri. Rajan Chaudhary S/o late D.R.Chaudhary Aged about 47 years R/at Flat No.G5, Kalpatharu Paramount 23rd ‘A’ Cross 4th Main HSR Layout 7th Sector Bengaluru.
(By Sri. Keshava Kumar B., Advocate) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Cr.P.C., praying to set aside an order of conviction dated 12.04.2017 in Criminal Appeal No.648/2016 on the file of LX Additional City Civil and Sessions Judge, Bengaluru and set aside order passed by the XIX Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.21662/2012 and pass an order of acquittal by allowing this Criminal Revision Petition.
This Criminal Revision Petition coming on for orders, this day, the Court made the following:
O R D E R The present revision petition has been filed by the petitioner/accused challenging the judgment passed by the Court of the LX Additional City Civil and Sessions Judge, Bengaluru (CCH – 61) in Crl. A. No.648/2016 dated 12.04.2017 wherein the appeal was dismissed and the judgment of conviction and order of sentence passed by the Court of the XIX Additional Chief Metropolitan Magistrate at Bangalore City in C.C. No.21662/2012 dated 05.05.2016 was confirmed.
2. I have heard the learned counsel for the respondent. Learned counsel for the petitioner/accused remained absent. However, revision petition cannot be dismissed for default and it has to be heard and decided on merits. The same is disposed of on merits.
3. It is contended in the petition by the petitioner/accused that there is no strict compliance of the provisions of Sections 138, 141 and 142 of Negotiable Instruments Act, 1881 (hereinafter referred as ‘the Act’) and no notice has been duly served to the petitioner/accused as required under the law and the said amount has been duly paid by the accused and the trial Court have not been properly considered. It is further contended that the material produced on record utterly failed to prove the guilt of the accused. As such, the accused ought not to have been acquitted of the charges leveled against him.
4. Per contra, learned counsel appearing on behalf of the respondent-complainant vehemently argued and submitted that the accused is the owner of the residential flat and the complainant occupied the same and an amount of Rs.5,00,000/- has been advanced as lease amount. Subsequently, he became the bankrupt and the securitization proceedings have been initiated and when he demanded to repay the advance lease amount, he issued the cheques are not in dispute. It is further submitted that the notice has been served to the petitioner/accused to the address where he was residing but the said notice has been returned as not claimed. That itself is sufficient to show that the notice has been served on the petitioner/accused. Further it is submitted that there was a presumption under the law that when once the accused admits the signature on the cheque, the Court is duty bound to draw a presumption under Section 139 of the Act. The accused has not rebutted the said presumption.
Though he has contended that as per the passbook Ex.D2, some amount has been withdrawn and paid to the complainant but no documentary evidence has been produced or any acknowledgment has been produced to show that the said amount has been paid to the complainant. It is further submitted that the Court below as well as the First Appellate Court after considering the factual matrix of the case, have rightly come to a conclusion and rightly convicted the accused. There are no good grounds to interfere with the order of the trial Courts. Further it is submitted that whenever the concurrent finding is there, the revisional Court is having a very limited power to entertain the criminal revision petition. It can be only entertain if any jurisdictional error or any illegality has been committed by the Courts below but no such case has been made out by the petitioner/accused. On these grounds, he prayed to dismiss the petition.
5. Before going to consider the submissions made by the learned counsel for the respondent, the factual matrix of the case of the complainant before the Court below is that the accused is the owner of the flat bearing No.G-5 and the complainant entered into a lease agreement dated 25.02.2010 towards advance lease amount of Rs.5,00,000/-. In this behalf for the payment of the said amount, he has issued two cheques for a sum of Rs.50,000/- and Rs.4,50,000/- dated 20.02.2010 and 10.03.2010 respectively in favour of the accused. Thereafter, the complainant was put in possession of the said flat as a tenant. Later in the month of the May-2012, the respondent-complainant came to know that the accused became defaulter for the payment of loan availed from the Can-Fin Homes and the proceedings have been initiated under the Securitization Act and issued the possession notice to take over the said flat, then the complainant issued termination notice and asked the accused for repayment of advance lease amount. In that light, accused issued a cheque dated 22.05.2012 towards repayment and when the said cheque was presented for encashment, the same was returned with an endorsement “drawer’s stop payment” then the complainant got issued legal notice. The said legal notice was returned “unclaimed” as such, the complaint was registered.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the respondent and perused the records including the original records.
7. As could be seen from the records, in order to prove the case of the complainant, the complainant got examined himself as PW.1 and in his evidence, he has reiterated what has been stated in the complaint and he has been cross-examined by the learned counsel for the respondent. It is suggested that Ex.P1-Cheque has been issued towards return of the lease amount.
The said suggestion has been denied and it is further suggested that from his bank account, he has withdrawn the amount and has paid Rs.1,90,000/- on 28.12.2012 and subsequently, the entire amount has been refunded. The said suggestion has also been denied. Further it has been suggested that after refund of the entire amount, the accused requested to return the cheque and he told that has kept the cheque somewhere immediately after tracing, he will return the same. The said suggestion has also been denied.
8. Accused got examined as DW.1 and in his evidence, he has deposed that he has issued the cheque as a security for having given Rs.5,00,000/- towards the lease amount and other aspects have also been stated in this behalf. On going through the evidence and material placed on record and taking into consideration the contentions taken up by the learned counsel for the petitioner/accused in his petition, the requirement as contemplated under Sections 138, 141 and 142 of the Act have not been complied but the trial Court while taking the cognizance of the case, has recorded sworn statement and only compliance of the provisions of Section 138 of the Act. The notice has been issued and no such contentions have been taken at the time of farming the charge.
9. Be that as it may. It is not in dispute that the Ex.P1-Cheque belongs to the account of the accused and there is a signature of the accused. Subsequently, the same has been submitted for encashment and the said cheque has been returned by the Syndicate Bank with a Shara that payment stopped by the bank as per Ex.P2. Subsequently, a notice has also been issued as per Ex.P4 to the other address and the same has been returned as not claimed on 27.07.2012. That itself clearly goes to show that the ingredients of Section 138 of the Act have been proved by the complainant. In that light, the contention of the petitioner/accused that the ingredients of Section 138 of the Act have not been proved does not hold any water. The second contention of the petitioner/accused that the notice is not duly served but as per the records Ex.P4 is the notice issued to the accused to his address and the same has been returned with the postal shara as notice unclaimed . Even it shows that the intimation has been given and he was absent and the same was not been claimed when the notice has been given to the address. Whether the accused is resided in that address is also not disputed by the accused then under such circumstance, if the postal cover properly addressed to the address of the accused and if it is returned as not claimed, then under such circumstance, it can be held that it is sufficient service of the notice. In that light also the second contention of the accused is not sustainable in law.
10. It is the specific contention of the accused that the said cheque has been issued as a security towards the lease amount of Rs.5,00,000/- but his specific contention is that he has returned the said amount by drawing the same from the bank. In order to substantiate the said fact, he got produced Ex.D2 wherein, it shows that some amount has been drawn from his account. If amount has been drawn from his account, then under such circumstance, he has to prove that the said amount has been paid to the complainant on various dates on which the amount has been drawn. Except producing Ex.D2, no other documents have been produced to show that an acknowledgment has been obtained from the complainant. In the absence of any such documents, the contention of the accused that the said amount has been paid by the accused is not acceptable.
11. It is well proposed proposition of law that when once the accused admits the signature on the cheque and it belongs to his accounts, then under such circumstance, the Court is duty bound to draw a presumption as mandated under Section 139 of the Act and it presumes that there exists a legally enforceable debt or liability. Of course the said presumption is rebuttable presumption and it is open for the accused to raise a defense wherein the existence of the legally enforceable debt or liability can be contested. On going through the said evidence, which has been produced, the cogent and acceptable evidence has not been produced so as to show that the accused has rebutted the said presumption.
12. 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 16 it has been observed as under:-
16. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that:
“6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption.
What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court.
The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. ”
Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the High Court recorded a finding of conviction.
13. On going through the said decision, the same proposition of law has also been reiterated 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 read 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.
14. On going through the ratio laid down by the Hon’ble Apex Court and on perusal of the records, the petitioner/accused though contended that the said cheque has been issued towards security for the lease amount and subsequently, he has contended that the said amount has been paid to the complainant but he has failed to establish the said fact. When once he fails to prove the said contention, then the case of the complainant stands proved, the accused is liable to be convicted.
15. Be that as it may. Both the Courts have given concurrent finding and when the concurrent finding is given by the Courts below then under such circumstances, the revisional Court will be having a very limited power if there is no jurisdictional error or illegality has been committed by the Courts below. In that ground, the judgment of the trial Court as well as the First Appellate Court after discussing the facts and matrix in detail, have come to a right conclusion and have rightly convicted the accused. The petitioner has not made out any good ground to interfere with the judgment of the trial Court. The petition is being devoid of merits, the same is liable to be dismissed and accordingly, it is dismissed.
In view of the dismissal of the main matter, I.A. No.1/2019 does not survive for consideration. Accordingly, it is disposed off.
Sd/- JUDGE VBS