IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1056/2018 Between:
Sri. Suresh Krishnamurthy S/o late N.S.Krishnamurthy Aged about 63 years Residing at No.219, 1st ‘B’ Cross II Main Road, Kasturi Nagar Bengaluru – 560 040. … Petitioner (By Sri. Anoop Haranahalli, Advocate for Sri. S.S.Srinivasa Rao, Advocate and Sri. Yashu Mishra, Advocate) And:
Sri. G.V. Raghavendra S/o late G.V.Iyer Aged about 41 years Residing at No.22/77 IV Cross, RPC Layout Vijayanagar Bengaluru – 560 040. … Respondent (By Sri. B. Sudeendranath, Advocate for Sri. N. Shankara Narayana Bhat, Advocate) This Criminal Revision Petition is filed under Section 397 read with 401 of Cr.P.C., praying to set aside the judgment dated 28.08.2018 passed in Crl.A.No.60/2018 on the file of the LXIII Additional City Civil and Sessions Judge (CCH-64) Bengaluru, confirming the judgment dated 16.12.2017, passed in C.C.No.9445/2014 on the file of XVI A.C.M.M., Bengaluru and acquit the petitioner.
This Criminal Revision Petition is 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 legality and correctness of the judgment passed by the Court of LXIII Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.60/2018 dated 28.08.2018, where under, the judgment of conviction and order of sentence passed by the Court of XVI Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.9445/2014 dated 16.12.2017 was confirmed and convicted the accused under Section 138 of N.I.Act and to pay a fine of Rs.19,00,000/- with default sentence.
2. I have heard the learned counsel for the petitioner/accused and learned counsel for the respondent/complainant.
3. Though this case is listed for admission, with the consent of learned counsel appearing for the parties, the same is taken up for final disposal.
4. The factual matrix of the case as contended by the complainant in his complaint is that the accused had issued a cheque bearing No.217021 dated 03.08.2013 for Rs.18,00,000/- drawn on Corporation Bank, Domlur Branch, Bengaluru. When the complainant presented the said cheque for encashment on 25.10.2013, to his bank. The said cheque was returned with an endorsement “Funds Insufficient”. Hence, the complainant got issued legal notice on 19.11.2013 and demanded to repay the amount. It is served on the accused, he has given an untenable reply but, he did not comply the provisions of Section 138 of Negotiable Instruments Act, 1881 (‘the N.I.Act’ for short) and as such, the complaint was registered. The trial Court took the cognizance of the offence, after recording the sworn statement of the complainant, secured the presence of the accused. The accused appeared and he has been served with the copy of the complaint and thereafter, the Court has recorded plea of the accused, read over and explained to him. The accused pleaded not guilty and he claims to be tried. As such, the trial was held.
5. In order to prove the case of the complainant, he has got examined himself as PW.1 and got marked the documents as Exs.P1 to P11 and Exs.N1 and N2. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. He got examined himself as DW.1 and got marked 14 documents as Exs.D1 to D14.
6. After hearing the learned counsel appearing for the parties, the accused was convicted. Being aggrieved by the same, he preferred an appeal before the I Appellate Court and the same was dismissed. Challenging the same, the petitioner/accused is before this Court.
7. The main contention urged by the learned counsel for the petitioner/accused is that the trial Court as well as the I Appellate Court without proper application of mind and without appreciating the facts in its right perspective have come to a wrong conclusion. It is his further submission that Ex.P8 clearly goes to show that it was a trading transaction and he had deposited some amount and subsequently, he was also cleared an amount of Rs.1,20,000/- per month for six months and also deposited Rs.60,000/- to the account of the complainant. The amount paid to the extent of Rs.7,80,000/- has not been considered and appreciated by the trial Court. The petitioner/accused is liable to pay only to the extent of Rs.7,20,00/-.
8. It is his further submission that there was no legally recoverable debt and there was no relationship what so ever. If there is no relationship, then under such circumstances, the application under Section 138 of the N.I.Act itself is not maintainable. In order to substantiate his contention he has relied upon a judgment of the Hon’ble Supreme Court in the case of Indus Airways Private Limited Vs. Magnum Aviation Private Limited reported in (2014) 12 SCC 539. It is his further submission that the complainant has filed the complaint for a sum of Rs.18,00,000/-. It is the largest liability but the cheque was taken by force when a criminal complaint was registered and he had been to the police station. The said cheque has not been freely issued. He further submitted that the said cheque has been taken in blank and subsequently, the said cheque has been filled up. It is his further submission that Ex.N1-statement recorded also clearly goes to show that he has been summoned to the police station and the matter has been compromised and the said cheque has been misused by the complainant. The trial Court without considering the said facts and circumstances have wrongly convicted the accused. It is his further submission that the compromise said to have been entered as per Ex.N2, though it is in his handwriting, it was obtained by virtue of force. He has not voluntarily entered into the said compromise. It is his further submission that the I Appellate Court as well as the trial Court without considering the facts and circumstances have come to a wrong conclusion and have wrongly passed the impugned orders. On these grounds, he prayed to allow the petition and to set aside the impugned order.
9. Per contra, learned counsel for the respondent/complainant vehemently argued and submitted that the petitioner/accused in his defence has taken up the contention that there is existence of relationship of share business and he invested Rs.15,00,000/- belonging to the complainant. It is further submitted that he has contended that he has paid an amount of Rs.7,80,000/-. But in order to substantiate the said fact, no documentary evidence has been produced. But once he admits the repayment of the amount, it clearly goes to show that there exists legally recoverable debt or liability. He further submitted that at para No.8 of his cross-examination he has clearly deposed that he offered to issue cheque for complainant for Rs.15,00,000/- in returning the cheque in dispute of Rs.18,00,000/- to him. He further submitted that he had intended to pay only the principal amount of Rs.15,00,000/- not the interest amount of Rs.3,00,000/- to the complainant. He admitted the fact that the said proposal was not accepted by the complainant that itself clearly goes to show that there was trading relationship between the complainant and the accused. In pursuance of the same, he has issued cheque at Ex.P1. He further submitted that the said cheque has not been taken with force and he has not substantiated the said fact. He further submitted that when once the cheque and the signature is admitted then under such circumstances, the Court is duty bound to draw the presumption. If the said presumption is not rebutted then under such circumstances, the accused is liable to be convicted for the offence punishable under Section 138 of the N.I.Act. On these grounds, he prayed to dismiss the petition.
10. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records as well as the Lower Court Records.
11. Though, several contentions have been raised by the learned counsel for the petitioner/accused, the fact remains is that he has admitted the trading transaction and he has also admitted in his cross-examination about the issuance of the cheque and the signature thereon and he has also admitted that he is liable to pay Rs.7,80,000/-. Then under such circumstances, the provisions of Section 138 of the N.I.Act will come into operation. When once the said provision is made applicable, then under such circumstances, a presumption has to be drawn that there exists legally 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 also been reiterated by the Hon’ble Supreme Court in the case of Rangappa Vs. Sri Mohan reported in (2010) 11 SCC 441, wherein, at para No.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 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 circumstance 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.”
Keeping in view of the law laid down in the above said decision and the factual matrix of the case on hand, the accused has admitted the signature and he has also admitted that Rs.7,80,000/- has been given back to the complainant, then under such circumstances, it cannot be held that there is no legally recoverable debt or liability. When it is the specific contention of the accused that he has given back Rs.7,80,000/- and he is due to Rs.7,20,000/-, then he is bound to repay the said amount. Section 139 of the N.I.Act 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. The said presumption is rebuttable by approving 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 the cogent evidence that there was no debt or liability. But mere denial or rebuttal by the accused was not enough. This proposition of law has also been laid down by the Hon’ble Supreme Court in the case of Bir Singh v. Mukesh Kumar reported in (2019) 4 SCC 197 at paragraphs 18, 20 and 24, it has been observed 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.
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] .
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.
Keeping in view of the law laid down in the above said decision, taking into consideration of the facts and circumstances, on perusal of the records and in view of the admission of the signature on the cheque as well as the contents of Ex.P10, it clearly goes to show that there was a trading account of the complainant and there was some transaction between the accused and the complainant. In order to return the said amount, he has issued the said cheque Ex.P1. Thought, he has contended that the said cheque for Rs.15,00,000/- has not been issued in favour of the complainant but the said evidence has not been substantiated by any evidence and the said contention has remained unrebutted. In the absence of any such material, it cannot be held that the presumption has been rebutted by the petitioner/accused.
12. Looking from any angle, the grounds urged by the learned counsel for the petitioner/accused does not hold any water and they are not having any force.
13. Another contention of the learned counsel for the petitioner/accused is that the accused is not liable to pay any amount as the complainant has taken the cheque by coercion and misused the same and the complaint has been filed in this behalf but the said complainant has not been persuaded. In pursuance of the complaint filed even the material is not cogent and acceptable to accept the said contention. The said contention is not having any force.
14. I have carefully and cautiously gone through the judgment of the trial Court as well as the I Appellate Court. Both the Courts after considering all the material have come to a right conclusion. When concurrent finding is there, this Court is having only limited jurisdiction, only if there is any illegality, then under such circumstances, this Court can interfere with the orders of the trial Court. The petitioner/accused has not made out any grounds so as to interfere with the judgment of the I Appellate Court as well as the trial Court. The same are deserves to be confirmed.
15. The petition is devoid of merits and the same is liable to be dismissed. Accordingly, the petition is dismissed.
Sd/- JUDGE NR/-