IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.251/2019 Between:
Sri Rajugowda N S/o. Narasimhaiah Aged about 34 years Residing at No.35/1, 10th Cross Mulkattamma Temple Channigappa Layout Kamakshipalya Bengaluru – 560 079. ...Petitioner (By Sri Manjunath H.B., Advocate - Absent) And:
Sri Jagadish Kumar Kunigal S/o. Thibbaiah Aged about 36 years R/at No.29, 1st Main 8th Cross, Rajeevgandhi Nagar Sunkadakatte Bengaluru – 560 091. ... Respondent (By Sri Vikas M., Advocate) This Criminal Revision Petition is filed under Section 397 r/w. Section 401 of Cr.P.C., praying to set aside the impugned order of dismissal of Crl.A No.1353/2016 dated 08.01.2018 of the LXVII Additional City Civil and Sessions Judge, Bengaluru in confirming the judgment of conviction and sentence dated 21.10.2016 passed by the XXII Additional C.M.M., Bengaluru C.C.No.24885/2015 set aside the order of the trial Courts, by allowing this Crl.R.P.
This Criminal Revision Petition coming on for Orders, this day, the Court made the following:
ORDER Heard the learned counsel for respondent on I.A.No.1/2019. The learned counsel for the petitioner/accused is absent. There is no representation. The said application has been filed under Section 5 of Limitation Act to condone the delay of 317 days in preferring the revision petition. It is also accompanied with an affidavit of the petitioner/accused.
2. The said application has been seriously contested by the respondent by contending that there is inordinate delay of 317 days in preferring the revision petition. No cogent and acceptable grounds have been made out to condone the delay.
3. On perusal of the affidavit, it discloses that after dismissal of the appeal, the petitioner/accused was unable to contact his advocate and prefer the revision petition on time and he was suffering from ill- health and was under treatment. He has also further contended that due to some unavoidable reasons, he was under depression hence he could not contact his counsel. He further contended that after recovery, he contacted his advocate and subsequently he arranged the money and at that time, his counsel on record fell ill and he was also having many problems. It is further contended that well-wishers of both the side tried to sort out issue out of the Court and negotiations and panchayaths were also held before the elders and advocates but the respondent did obey the terms and conditions of the negotiations and as such there is delay of 317 days.
4. On perusal of the said affidavit and other records, though it has contended by the petitioner that he was suffering with some ailment and was in depressions but not even a piece of document has been produced to substantiate the said contention. Surprisingly, he recovered but his counsel fell ill and he was also in his personal problems and when all problems were over but he tried to settle out the issue amicably by negotiation in the presence of elders and advocates. But in order to substantiate the said contention neither affidavit of elders who participate in the negotiation nor the advocates have been filed. All the grounds are inconsistent with each other. If he was suffering with illness how that he can try to settle the matter amicably in the presence of elders of panchayath and in the absence of any material, I am of the considered opinion that there are no good reasons to condone inordinate delay in filing the present revision petition.
5. Even as could be seen from the records, though the petitioner/accused has taken up the contention that Exhibit P.1/cheque has been issued to Himalaya Finance and the said Finance was run in the same building and the accused has issued the cheque and pronote and when there was a chit transaction a complaint was also registered in this behalf and the statement was also been given as per Exhibit D1 and he has also produced Exhibit D2, but in order to rebut the said evidence, he has not stepped into witness box nor examined any witnesses. On the basis of Exhibits D1 and D2, the said contention which has been taken is not going to be rebutted that too when the petitioner/accused has taken up a specific contention. It is well proposed proposition of law that when the complainant satisfy the ingredients of Section 138 of N.I. Act and if the accused admits the signature on Exhibit P1 and contends that the said cheque has been issued in favour of Himalay Finance then under such circumstances, the burden shifts upon him to prove by cogent and acceptable evidence. Mere denial of the said transaction is not sufficient to rebut the said presumption. In the decision of Hon’ble Apex Court in the case of Bir Singh v. Mukesh Kumar reported in (2019) 4 SCC 197 it has been observed that Section 139 mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. However, the presumption is rebuttable by proving to the contrary. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused to prove by cogent evidence that there was no debt or liability. Mere denial or rebuttal by the accused was not enough. For the purpose of brevity, I quote paragraphs 18, 20, and 24 which 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.
6. In that light when a concurrent finding is also there, then this Court will be very slow and it does not want to interfere with the concurrent findings that too when there is no material. Looking from any angle, the petitioner/accused has not made out any good grounds to set aside the judgments of Courts below.
In the light of the discussion held by me above, I.A.No.1/2019 is dismissed as no cogent and acceptable material has been produced to condone the delay. Consequently, the revision petition is also dismissed.
Pending I.A.No.3/2019 is disposed of in view of the dismissal of main petition.
Sd/- JUDGE nms