IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION NO.293/2017 BETWEEN :
Sri Harishkumar T., S/o D.C.Thimmegowda Aged about 35 years Residing at No.3, Venkateshwara Nilaya Cauvery College Road Near Cauvery College, Sahakarnagar Bengaluru-560 092.
… Petitioner (By Sri Manjunath B.K., Advocate-Absent) AND :
Sri Mahadeva S/o Shivanna Aged about 35 years Residing at C/o Vijay Kumar, No.27, Srikateshwara Nilaya 14th ‘A’ Street, A.D.Halli, Magadi Main Road, Bengaluru-560 079.
… Respondent (By Sri K.Prasanna Shetty, Advocate) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the judgment dated 17.12.2015 passed by the XV ACMM, Bengaluru in C.C.No.27204/2014 and judgment passed in Criminal Appeal No.37/2016 dated 22.12.2016 passed by LXII Additional City Civil and Sessions Judge, Bengaluru and dismiss the complaint in accordance with law and etc.
This Criminal Revision Petition coming on for Admission this day, the Court made the following:-
O R D E R The present petition is filed by the accused challenging the judgment and order passed by the LXII Additional City Civil and Sessions Judge, Bengaluru in Criminal Appeal No.37/2016 dated 22.12.2016 whereunder the criminal appeal came to be dismissed by confirming the judgment and order dated 17.12.2015 passed by the XV Additional CMM, Bengaluru in CC.No.27204/2014.
2. The facts of the case in brief are that the complainant and the accused were close friends since past three years. Accused borrowed a sum of Rs.1,46,000/- from the complainant agreeing that the said amount would be repaid within three months. On persistence demand made by the complainant, the accused issued a cheque bearing No.031998, dated 30.5.2014 for a sum of Rs.1,46,000/- drawn on Canara Bank, BDA Complex Branch, Bengaluru. On presentation of the said cheque for collection through SBI, the said cheque was returned unpaid with an endorsement “insufficient funds” with bank memo dated 23.7.2014. Thereafter complainant issued a legal notice under Section 138 of the Negotiable Instruments Act (‘N.I. Act’ for short) to the accused to pay the cheque amount within fifteen days. The accused did not pay the said amount and as such the complaint was filed. Thereafter, the Court below took cognizance and issued summons to the accused. Accused appeared before the trial Court and denied the case of the complainant. The complainant got examined himself as PW.1 and got marked Exhibits P1 to P5. After recording of statement under Section 313 of Cr.P.C., the accused got examined himself as DW.1 and marked the documents as per Exs.D1 to D4. After hearing the learned counsel appearing for the parties, the trial Court came to the conclusion that the complainant has proved his case and therefore convicted the accused. Being aggrieved by the same, the accused preferred an appeal which also came to be dismissed by the first appellate Court.
3. I have heard the learned counsel for the respondent-complainant. The accused-petitioner remained absent. There is no representation on his behalf. Since the petition cannot be dismissed for default and it has to be heard and decided on merits, the same is disposed of on merits.
4. In the petition, it is contended by the petitioner- accused that the trial Court as well as the first appellate Court have not considered the material facts available on record and wrongly passed the impugned orders. It is further contended that the complainant has not stated anything about the date, time, place and payment of money to the petitioner-accused and has utterly failed to prove the said transaction. In spite of the same, the trial Court has allowed the complaint and convicted the accused and the same is confirmed by the first appellate Court. It is further contended that hand writing written on the cheque at Ex.P1 does not belong to the petitioner- accused. The said aspect has not been properly considered and appreciated by the trial Court. It is further contended that the petitioner had issued the cheque to one Viswa by affixing his signature to pay the car insurance, but the complainant in collusion with the said Viswa has created a story and has filed a false complaint. The said aspect has also not been properly considered and appreciated by the Courts below. On these grounds, it is prayed to allow the petition and to set aside the order of conviction passed as against the petitioner-accused.
5. On the other hand, learned counsel for the respondent-complainant has vehemently argued and submitted that the petitioner-accused has admitted his signature on the cheque at Ex.P1 and he has only denied the issuance of the cheque. Under such circumstances, the presumption under Section 139 of N.I. Act has to be drawn that the said cheque has been issued in discharge of the debt or liability and the petitioner-accused has taken up an inconsistent stand. At one stretch the petitioner-accused has contended that when he was working as a Manager, the cheque has been obtained by the complainant, at another stretch he has contended that the said cheque has been given to one Viswa and in collusion with the said Viswa, the complainant has collected the said cheque and created a story and filed a false complaint. However, in order to substantiate the said fact, nothing has been produced by the petitioner- accused. The trial Court after considering the said facts and circumstances, has come to the right conclusion that the cheque has been issued in discharge of the debt and liability and as such there was an offence punishable under Section 138 of N.I. Act. He further submitted that the accused is a BE Mechanical Graduate and his version that he had issued a blank cheque, that too to Viswa, cannot be acceptable in law. The trial Court after considering the said facts and circumstances, has come to the right conclusion that the complainant has made out a case and has rightly convicted the accused, which is also confirmed by the first appellate Court. Therefore, he contended that there are no good grounds to allow the petition and hence prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the respondent-complainant and perused the records.
7. In order to prove his case, the complainant got examined himself as PW.1 and marked the documents as per Exs.P1 to P5. The complainant-PW.1 has deposed that the accused had borrowed a loan of Rs.1,46,000/- from the complainant and in order to repay the said amount, he has issued the cheque as per Ex.P1 and when the said cheque was presented for encashment, the same was dishonoured. He has further deposed that he was getting a monthly salary of Rs.23,000/- and petrol allowance of Rs.3,000/-. During the course of cross- examination, the transaction has been denied by the accused and the said suggestion has been denied by the complainant. It is the specific case of the complainant that the drawing up of the cheque by the accused and his signature is not denied by him. At one stretch, it is contended by the petitioner-accused that the cheque at Ex.P1 was obtained by the complainant, at another stretch it is his contention that the cheque in question has been given to Mr.Viswa to pay the car insurance and in collusion with the said Viswa, the complainant has misused the said cheque thereby he has admitted his signature on Ex.P1. When once the accused admits the signature on the cheque at Ex.P1, then under such circumstances, the Court is duty bound to draw the presumption under Section 139 of N.I. Act. In the case of Rangappa Vs. Sri Mohan, reported in (2010) 11 SCC 441, the Hon’ble Apex Court has observed that once the cheque relates to the account of the accused and he accepts and admits the signature on the said cheque, then initial presumption as contemplated under Section 139 of N.I. Act has to be raised. It is mandatory presumption and accused has to rebut the said presumption on preponderance of probabilities. Though it is contended by the petitioner in this petition that the cheque at Ex.P1 bears the signature and the hand writing on the said cheque is not that of the accused. But as per Section 20 of N.I. Act, it enables the holder of the cheque to complete the said negotiable instrument when once the payee issued the cheque signed in accordance with law. The holder of the cheque is having an authority to make or complete it as a negotiable instrument. In that light, the contention taken up by the petitioner does not stand to any reason.
8. It is further contention of the petitioner that the petitioner while he was working as a Manager the cheque in question has been obtained by the complainant. But in order to substantiate the said fact, no body has been examined in this behalf. Another contention which was taken up in this behalf is that the petitioner handed over the cheque Ex.P1 to Mr.Viswa by affixing his signature to pay the car insurance and in collusion with the said Viswa the complainant has misused the said cheque. But for the reasons best known to the petitioner-accused the said Viswa has not been examined before the trial Court. Even the accused-petitioner has taken up inconsistent stand. Therefore, the story and the contentions taken up by the petitioner are not acceptable. I am conscious of the fact that when once the presumption has been drawn under Section 139 of N.I. Act, the accused has to rebut the said presumption by preponderance of probabilities. He got examined himself as DW.1 before the trial Court. Even during the course of cross- examination, he could have rebutted the said presumption. But nothing has been brought on record to substantiate the contentions which have been taken up by him.
9. Be that as it may, as could be seen from the evidence on record, the petitioner-accused is a BE Mechanical Graduate. He has not produced any evidence for having issued the blank cheque to the complainant and it has been misused by him. Even no other material has been placed in this behalf. In that light, the contention taken up by the petitioner-accused cannot be sustainable in law. Under such circumstances, if he fails to rebut the presumption drawn under Section 139 of N.I. Act, the only inference that has to be drawn is that the case of the complainant has been proved and the accused has to be convicted. The Courts below have rightly come to the conclusion that the complainant has made out his case and therefore the accused-petitioner has rightly been convicted for the offence punishable under Section 138 of N.I. Act. Under such circumstances, there are no good grounds so as to interfere with the orders of the Courts below. I have carefully and cautiously gone through the impugned orders passed by both the Courts below. They are neither perverse nor illegal and therefore same are liable to be confirmed and accordingly they are confirmed.
Accordingly, petition is dismissed being devoid of merits.
Sd/- JUDGE *ck/-