IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 07TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.863/2015 Between:
Sundar N. S/o. Yallappa Aged about 58 years R/at Door No.9/296 Paper Town, Bhadravathi Shivamogga District – 577 301. ... Petitioner (By Sri. S.N. Bhat., Advocate) And:
Raveendra S.G. S/o. Gopal Aged about 52 years R/at. C/o. Smt. Shanthamma Door No.30/A, New Colony Bhadravathi Shivamogga District – 577 301. ... Respondent (By Sri. Prasanna B.R., Advocate) This Criminal Revision Petition is filed under Section 397 read with 401 Cr.P.C praying to set aside the order dated 22.06.2015 passed by the IV Additional District and Sessions Judge, Shivamogga setting at Bhadravathi in Crl.A No.174/2014 and also order dated 1.12.2014 passed by the Principal Civil Judge and JMFC, Bhadravathi in C.C. No.3882/2012.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
O R D E R The present Criminal Revision Petition has been filed by the petitioner/accused being aggrieved by the judgment passed by the IV Additional District and Sessions Judge, Shivamogga sitting at Bhadravathi in Crl.A No.174/2014 dated 22.06.2015 where under the judgment passed by the Principal Civil Judge and JMFC, Bhadravathi in C.C.No.3882/2012 on 01.12.2014 has been confirmed.
2. I have heard the learned counsel for both the parties.
3. It is noticed from the records that the petitioner/accused borrowed a sum of Rs.1,75,000/- on 01.07.2012 and issued a cheque dated 04.10.2012 drawn on State Bank of Mysuru. When it was presented before the bank it was returned with endorsement “insufficient funds” and thereafter, notice was issued to the petitioner/accused and he has not given any reply. Thereafter, the complaint was presented under Section 138 of Negotiable Instruments Act, 1881 (Hereinafter for short “Act”). After the trial, the accused was convicted. Being aggrieved by the same, he has preferred an appeal in Crl. A. No.174/2014 and the same was also dismissed. Being aggrieved by the judgments of the Courts below, the petitioner/accused is before this Court.
4. It is further submitted that the complainant had not proved the transaction between him and the accused and he has not produced any documents for having lend the money. It is his further submission that the petitioner/accused has not been given any opportunity to cross-examine the complainant and as such, there is miscarriage of justice. Hence, he prays to remand the case to the Court below and give an opportunity to cross-examine the complainant to adduce his evidence. On these grounds, he prays to allow the petition and set aside the impugned judgment of the Court below.
5. The learned counsel for the respondent /complainant submits that the trial Court as well as First Appellate Court have rightly drawn presumption and accused has also admitted the signature of Ex.P.1 and records disclose that sufficient opportunity has been given to the accused, in spite of that, he has not led his evidence. On these grounds he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submission made by the learned counsel for the parties.
7. As could be seen from the records, in order to prove the case of the complainant, the complainant got himself examined as PW.1 and got marked Ex.P.1 to P.7. In his evidence, he deposed that he is acquainted with the accused and in order to meet his domestic needs, he took a loan of Rs.1,75,000/- on 01.07.2012 and in order to repay the same, he issued post dated cheque as per Ex.P1 and when he was presented it in the bank, it returned with shara “insufficient funds”. Thereafter, a legal notice has also been issued but the accused has not replied. All these materials clearly go to show that the ingredient of Section 138 of the Act has been proved by the complainant. Though it is contended by the learned counsel for the petitioner that the complainant has not produced any material to show that the accused had seeking money and he was having a source of income, but the complainant has produced the evidence to show that he was working in Pearlite Liners Limited Company since 1981 and he has maintained SB account at State Bank of Mysuru, Shivamogga branch and the monthly salary used to be credited to the said account and as and when he required, he has withdrawn the said amount through ATM and that there was a balance in the account of the complainant.
8. As could be seen from the cross examination of PW.1 made by the accused, the signature on the cheque belongs to him and his cheque has been misused by the complainant. When once the accused admit the signature and that cheque has been issued from the account, which the accused was holding, then under such circumstances, the Court is duty bound to draw a presumption under Section 139 of the Act. In the decision of the Hon’ble Apex Court in the case of Rangappa v. Mohan reported in AIR 2010 SC 1898 at para 14, it has been observed as under:
“ 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 (Supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision 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 favour of the complainant Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonor of cheque, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable under Section 138 can be better described as regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in the commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justification, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that, when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of “preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence, which creates doubts about the existence of a legally enforceable debt or liability, the presumption can fail. As clarified in the citation, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some case the accused may not need to adduce evidence on his/her own”.
8. By going through the said paragraph, it clearly goes to show that once the accused admitted the signature on the cheque, then the Court is duty bound to draw a presumption under Section 139 of the Act and it also substantiate the fact that there was a recoverable debt in pursuance of the said cheque which has been issued. But however, the said presumption under Section 139 of the Act is rebuttable on the preponderance of the probabilities, the accused has to rebut the said presumption on cogent and acceptable evidence. In the instant case on hand, admittedly, the accused has not stepped into the witness box and not produced any documents. In the said facts and circumstances, it can be safely held that the complainant has proved that there exists a legally recoverable debt and in pursuance of the same, Ex.P1/cheque has been issued. Though it is contended by the learned counsel for the petitioner/accused that he has not been given an opportunity to cross-examine the PW.1 and to led his further evidence, but on going through the judgment of the trial, it clearly goes to show that PW1/ complainant was came to be examined before the Court on 18.04.2013 and on 08.11.2013, the complainant has been cross-examined and again the case was adjourned and further cross-examination of the complainant was made on 06.05.2014 and on the same day, when the case was kept for further cross-examination of PW.1, the learned counsel for the accused remained absent and the said cross-examination is taken as nil and the case of the complainant is closed. Thereafter, it was posted for recording the statement of accused under Section 313 and on 17.05.2014 the statement of the accused was recorded and the case was posted for the evidence of the accused on 18.07.2014. subsequently, it was posted on 22.08.2014 and 12.09.2014 but the accused did not led evidence. Thereafter, the petitioner/accused has filed application under Section 145(2) of the Act to recall the PW.1 for the purpose of further cross-examination but the said application was dismissed with cost on 31.10.2014. Thereafter, again the case was posted for the evidence on 04.11.2014. even on that date, he has not led any evidence and the defence evidence was taken as nil and subsequently, five adjournments have also been granted for the purpose of arguments. Even at that time also, no application has been filed either to reopen the case or to lead his evidence. All the materials which has been discussed above clearly goes to show that even in spite of sufficient opportunity given, the petitioner/accused has not availed the benefit and has not led any evidence on his behalf to rebut the presumption which has been raised under Section 139 of the Act. When once that presumption has been raised and if it is not rebutted then under such circumstances, the case of the complainant stands proved and even that opportunity given is more than sufficient. Under such circumstances, it cannot be held that the learned Magistrate has not given any opportunity to the petitioner/accused to cross-examine PW.1 and to lead his evidence. The said contention is not supported with any substantial material. Under the said facts and circumstances, I feel that the petitioner/accused has not made out any grounds to allow the petition and to set aside the impugned order and the same is liable to be confirmed.
Accordingly, the petition is dismissed.
nms Sd/- JUDGE