IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION NO.1008/2015 BETWEEN :
Smt. Yasmeen Taj Aged about 48 years Sr. TOA(G) in BSNL Office Now working at Harihar BSNL Office, P.B.Road, Harihara Town, Davanagere District-577 601.
(By Smt. Haleema Ameen, Advocate for Sri S.Vishwajith Shetty, Advocate) AND :
Sri V.Thirumalesh S/o H.Venkataramappa Aged about 43 years R/o D.No.880/2, Saraswathi Extension Davanagere City-577 001.
(Respondent Served and unrepresented) … Petitioner … Respondent This Criminal Revision Petition is filed under Section 397(2) of Cr.P.C praying to set aside the judgment and order of conviction dated 09.06.2014 made in C.C.No.233/2012 by the Court of I Additional Senior Civil Judge and JMFC, Davanagere, and the judgment and order dated 26.08.2015 made in Criminal Appeal No.64/2014 by the II Additional District and Sessions Judge, Davanagere and acquit the petitioner.
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 being aggrieved by the judgment and order dated 26.8.2015 passed by the II Additional District and Sessions Judge, Davangere in Criminal Appeal No.64/2014, whereunder the judgment and order of conviction and sentence passed by the I Additional Senior Civil Judge and JMFC., Davanagere in CC.No.233/2012, dated 5/9.6.2014 was confirmed.
2. Though the respondent-complainant is served with notice, he has remained absent. I have heard the learned counsel for the petitioner-accused.
3. The case of the complainant before the trial Court is that on 10.11.2008 accused borrowed a hand loan of Rs.1,00,000/- from the complainant and at that time, she had issued cheque bearing No.257606 for a sum of Rs.1,00,000/-. When the complainant presented the cheque for encashment through banker, the same was returned with an endorsement “funds insufficient” on 12.1.2009. Thereafter on 21.1.2009, the complainant issued a legal notice to the accused, which was returned with shara “refused”. For having not paid the cheque amount, the complaint was registered.
4. In order to prove his case, the complainant got examined himself as PW.1 and got marked the documents at Exs.P1 to P5. Thereafter, accused was examined under Section 313 of Cr.P.C. and she did not choose to lead any evidence. After hearing both the parties, the impugned judgment and order came to be passed by the trial Court convicting the accused. The same was confirmed by the first appellate Court. Aggrieved by the same, the accused is before this Court.
5. It is the submission of the learned counsel for the petitioner-accused is that the trial Court while appreciating the evidence on record has committed a serious error and the complainant has not produced an iota of evidence to show that the petitioner-accused has availed hand loan from the complainant. All these materials have not been appreciated and considered by the trial Court. It is her further submission that documentary evidence produced does not substantiate the case of the complainant. In that light, she prays that there is miscarriage of justice. It is her further submission that the accused-petitioner herein is ready to give the cheque amount and fine amount may be reduced. On these grounds, she prayed to allow the petition.
6. It is the case of the complainant that a sum of Rs.1,00,000/- was given to the accused as hand loan. Towards repayment of the said amount, accused has issued the cheque. Accused has filed written arguments contending that the she had given a signed blank cheque. But the same has been misused by the complainant by fabricating for wrongful gain. It is well settled proposition of law 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.
7. On going through the aforesaid paragraph, it would indicate that when once the accused admits the signature on the cheque, then under such circumstances, Section 139 of N.I. Act mandates that the presumption has to be drawn to the effect that there exists legally enforceable debt or liability. It is also observed that the said presumption is rebuttable presumption and it is open for the accused to raise a defence by rebutting that there does not exist legally enforceable debt or liability.
8. As could be seen from the records, it would indicate that the petitioner-accused has not stepped into the witness box and has not rebutted the presumption raised under Section 139 of N.I. Act. It is also brought on record that even during the course of cross- examination the said presumption has not been rebutted by the petitioner-accused. Keeping in view the aforesaid facts and circumstances, I feel that the petitioner has not made out any good grounds so as to interfere with the judgment and order of the trial Court.
9. However, I feel that if the order of the trial Court made under Section 357(3) of Cr.P.C. is modified and the accused is directed to pay a sum of Rs.1,10,000/- towards compensation, in default to pay the said amount, if she is directed to undergo SI for a period of four months, it would meet the ends of justice. Accordingly, the following order is made:-
The accused-petitioner herein shall pay a sum of Rs.1,10,000/- (Rupees one lakh and ten thousand only) towards compensation, in default to pay the said amount, she shall undergo SI for a period of four months.
After depositing of the aforesaid amount of Rs.1,10,000/- by the accused, inclusive of the amount already deposited before the trial Court, the trial Court is directed to pay an amount of Rs.1,05,000/- (Rupees one lakh and five thousand only) in favour of the complainant Sri V. Thirumalesh and Rs.5,000/- (Rupees five thousand only) shall vest in the State.
Accordingly, the petition is partly allowed.
Sd/- JUDGE *ck/-