Amar Acharya vs Nivas Patel
2021 Latest Caselaw 1895 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF APRIL, 2021

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No.696 OF 2015

BETWEEN:

Amar Acharya,
S/o. Harishchandra Acharya
Aged about 35 years,
R/o. Jeevan Jyothi Jewelleries,
Kairanna Building, Falnir Road,
Mangalore D.K. 575 001.
                                                     ..Petitioner
(By Sri. S. Rajashekar, Advocate)

AND:

Nivas Patel,
Aged about 33 years
Proprietor Shubhani Jewellaries,
Opposite Town Bank Car Street,
Mangaluru - 1 - 575 001.
                                                    .. Respondent
(By Sri.P.P. Hegde, Advocate)

                                 ****
      This Criminal Revision Petition is filed under Section 397
read with Section 401 of Cr.P.C. praying to set aside the
judgment dated 25-06-2015 passed by the IV Additional District
and Sessions Judge, D.K. Mangaluru in Crl.Appeal No.17/2013,
confirming the order passed in C.C.No.1454/2009 dated
22-12-2012 by JMFC (V Court) Mangaluru, Dakshina Kannada
and acquit the accused of the charges levelled against her under
the facts and circumstances of the case, in the interest of justice
and equity.
                                             Crl.R.P.No.696/2015
                               2


      This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing and reserved on
12-04-2021, coming on for pronouncement of orders this day,
the Court made the following:

                          ORDER

The present petitioner as the accused was tried by the

Court of the learned Chief Metropolitan Magistrate (V Court),

Mangaluru, Dakshina Kannada (hereinafter for brevity referred to

as the "Trial Court"), in C.C.No.1454/2009, for the offence

punishable under Section 138 of the Negotiable Instruments Act,

1881 (hereinafter for brevity referred to as the "N.I. Act") and

was convicted for the said offence by its judgment of conviction

and order on sentence dated 22-12-2012.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the learned IV Additional District and

Sessions Judge, Dakshina Kannada, Mangaluru, (hereinafter for

brevity referred to as the "Sessions Judge's Court") in Criminal

Appeal No.17/2013.

The appeal was contested by the respondent who was the

complainant in the Trial Court. The Sessions Judge's Court in its

order dated 25-06-2015 dismissed the appeal, confirming the Crl.R.P.No.696/2015

judgment of conviction and order on sentence passed by the

Trial Court dated 22-12-2012 in C.C.No.1454/2009.

Aggrieved by the said judgment, the accused has preferred

this revision petition.

2. The summary of the case of the complainant in the Trial

Court is that, the accused had purchased gold ornaments from

him on 21-04-2009 as per invoice/Bill No.1410 dated

21-04-2009. Towards the payment of the same, the accused

had issued a cheque bearing No.400071 dated 23-07-2009 for a

sum of `13,80,000/- drawn on Vijaya Bank, Falnir Branch,

Mangalore. When the said cheque was presented for realisation

by the complainant, the same came to be dis-honoured and

returned with the banker's shara 'insufficient funds'. The

complainant issued a legal notice to the accused, demanding the

payment of the cheque amount. Though the accused sent a

detailed reply to the said notice, but he did not pay the cheque

amount, which constrained the complainant to institute a

criminal case against him for the offence punishable under

Section 138 of the N.I. Act before the Trial Court.

Crl.R.P.No.696/2015

3. The accused appeared in the Trial Court and contested

the matter through his counsel.

4. To prove his case, the complainant got himself

examined as PW-1 and also examined one Sri. Shankar Rai, the

Bank Manager as PW-2 and got marked documents from Exs.P-1

to P-13. The accused got himself examined as DW-1 and got

marked the reply sent by him to the legal notice as the sole

document at Ex.D-1.

The Trial Court after recording the evidence led before it

and hearing both side, by its impugned judgment dated

22-12-2012 convicted the accused for the offence punishable

under Section 138 of the N.I. Act and sentenced him to pay a

fine of `16,00,000/-, in default, to undergo simple imprisonment

for a period of one year. Challenging the said judgment of

conviction passed by the Trial Court, the accused preferred an

appeal in Criminal Appeal No.17/2013 before the learned

Sessions Judge's Court, which, after hearing both side, by its

impugned judgment dated 25-06-2015, dismissed the appeal

filed by the accused, while confirming the impugned judgment of

conviction and order on sentence passed by the Trial Court.

Crl.R.P.No.696/2015

Being aggrieved by the judgments of conviction and order on

sentence, the accused has preferred this revision petition.

5. The respondent herein is being represented by his

counsel.

6. The Trial Court and Sessions Judge's Court's records

were called for and the same are placed before this Court.

7. Learned counsel for the revision petitioner/accused is

appearing physically in the Court and learned counsel for

respondent is appearing through Video Conference.

8. Heard the arguments from both side. Perused the

materials placed before this Court including the Trial Court and

Sessions Judge's Court's records.

9. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

10. After hearing the learned counsels for the parties, the

only point that arise for my consideration in this revision petition

is:

Crl.R.P.No.696/2015

Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court?

11. Learned counsel for the revision petitioner/accused in

his argument submitted that, the entire case of the complainant

is based upon the tax invoice at Ex.P-8 and the same has not

been proved. There is no evidence to show that, the said

transaction has been mentioned by the complainant before the

Commercial Tax Department authorities, as such, the alleged

sale of gold by the complainant to the accused is not established

and that there is no legally enforceable debt between the parties.

In his support, he relied upon three judgments of the

Hon'ble Apex Court, which are as follows:-

[i] In John K. Abraham Vs. Simon C. Abraham and

another reported in (2014) 2 Supreme Court Cases 236,

paragraph 9 of the judgment, towards which the attention of this

Court was drawn by the petitioner, reads as below:-

"9. It has to be stated that in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant."

Crl.R.P.No.696/2015

[ii] In K. Prakashan Vs. P.K. Surenderan reported in

(2008) 1 Supreme Court Cases 258, with respect to Section 138,

139 and 118(a) of the N.I. Act, the Hon'ble Apex Court was

pleased to discuss about the nature of presumption under

Section 139 of the N.I. Act and pleased to hold that, the said

presumption under Sections 139 and 118(a) is rebuttable. The

burden of proof lying on the accused is required to be discharged

by preponderance of probability while that lying on prosecution

to be discharged by proof beyond reasonable doubt. It was

further observed by the Hon'ble Apex Court that, in the said

process of rebutting the presumption, the accused need not step

into the witness box to discharge his burden of proof.

[iii] In Basalingappa Vs. Mudibasappa reported in (2019)

5 Supreme Court Cases 418, reiterating the nature of

presumption under Section 139 of the N.I. Act, the Hon'ble Apex

Court was pleased to hold that the presumption under Section

139 is a rebuttable presumption and the onus is on the accused

to raise a probable defence. The standard of proof for rebutting

the presumption is that of preponderance of probabilities. It was

further held in the same case that, to rebut the presumption, it

is open for the accused to rely on the evidence led before him or Crl.R.P.No.696/2015

the accused can also rely upon the materials submitted by the

complainant in order to raise a probable defence. Inference of

preponderance of probabilities can be drawn not only from the

materials brought on record by the parties but also by reference

to the circumstances upon which they rely.

12. Learned counsel for the respondent/complainant in his

argument submitted that, even though the accused contends

that, the complainant was a stranger to him, but the evidence of

PW-1 and PW-2 read with Exhibits P-11(a), P-11(b), P-12 and

P-13 makes it very clear that, even earlier to the transaction in

question also, there were transactions between the parties and

that the cheques issued by the accused to the complainant were

encashed by the complainant, as such, both of them knew each

other prior to the transaction in question.

Learned counsel further submitted that, since the accused

has suppressed the said fact and taken a contention that, the

complainant was a stranger to him, the conduct of the accused is

not appreciable, as such, his defence is also not tenable.

Crl.R.P.No.696/2015

In his support, learned counsel for the respondent also

relied upon three judgments of the Hon'ble Apex Court, which

are as follows:-

[i] In Kalamani Tex and Another Vs. P. Balasubramanian

reported in 2021 SCC OnLine Supreme Court 75, at paragraph

14 of its judgment, the Hon'ble Apex Court was pleased to

observe with respect to Sections 118 and 139 of the N.I. Act

that, the statute mandates that, once the signature(s) of an

accused on the cheque or a negotiable instrument is/are

established, then, these 'reverse onus' clauses become

operative. In such a situation, the obligation shifts upon the

accused to discharge the presumption imposed upon him. It was

also held at paragraph 18 in the same judgment by the Hon'ble

Apex Court that, even if we take the arguments raised by the

appellants at face value that only blank cheque and signed blank

stamp papers were given to the respondent, yet the statutory

presumption cannot be obliterated.

[ii] In Rangappa Vs. Sri. Mohan reported in (2010) 11

Supreme Court Cases 441, the Hon'ble Apex Court was pleased

to hold that the presumption mandated by Section 139 of the

N.I. Act thus indeed include the existence of a legally enforceable Crl.R.P.No.696/2015

debt or liability. However, the said presumption is in the nature

of 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 is an initial

presumption which favours the complainant.

[iii] In Hiten P. Dalal Vs. Bratindranath Banerjee reported

in (2001) 6 Supreme Court Cases 16, with respect to Sections

118, 138 and 139 of the N.I. Act, the Hon'ble Apex Court was

pleased to hold that, it is obligatory on the Court to presume the

liability of the drawer for the amount of the cheque in every case

where the factual basis for such presumption is established.

Such a presumption can be rebutted by the drawer by proving

on evidence that the holder of the cheque had not received the

same towards the discharge of any liability. Such rebuttal does

not have to be compulsively established. The Court must either

believe the defence to exist or consider its existence to be

reasonably probable. But mere explanation given by the

drawer, although plausible, would not suffice.

It is keeping the principles laid down in the above

judgments, the case on hand is required to be analysed.

Crl.R.P.No.696/2015

13. The complainant got himself examined as PW-1,

wherein, in his examination-in-chief, he reiterated the

contentions taken up by him in his complaint. In support of his

contention, he got marked documents from Exs.P-1 to P-13. He

also got examined one Sri. Shankar Rai, the Bank Manager as

PW-2. The accused got himself examined as DW-1 and got

marked a copy of his reply to the legal notice of the complainant

as Exhibit D-1. The Complainant got produced and marked the

dis-honoured cheque at Exhibit P-1, which admittedly is drawn

by the accused. However, the contention of the accused is that,

he had not issued the said cheque to the complainant, much less

towards any legally enforceable debt, on the other hand, it was

his defence that, he had issued the said cheque to one of the

friend of the complainant by name Praveen as a blank but duly

signed cheque.

14. DW-1 in his cross-examination has stated that, as a

security towards the amount borrowed by him from said

Sri.Praveen Achar, he had given the said cheque at Exhibit

P-1 to him about seven to eight years back. At a later stage, in

the very same cross-examination, DW-1 also stated that, he had

given four signed cheques to Sri. Praveen Achar, in which he had Crl.R.P.No.696/2015

returned only one cheque and three cheques had remained with

him. Even after clearing the entire loan amount, the said

Sri. Praveen Achar did not return the said cheques, but stated

that the said cheques were not with him. However, the said

statement made by DW-1 was not admitted by the complainant.

In the very same cross-examination of DW-1, the accused also

stated that, he does not know where the said Sri. Praveen Achar

is there at present (then). He also stated that, he has not taken

any step against Sri. Praveen Achar for not returning the alleged

cheques. He also stated that he has not even issued any notice

to the said Sri.Praveen Achar, seeking return of those cheques.

Thus, it gives rise to a doubt in the defence taken by the accused

that, the alleged cheque at Exhibit P-1 was given by him to one

Sri.Praveen Achar.

Furthermore, DW-1 in his cross-examination has also

stated that, when the legal notice at Ex.P-4 was served upon

him, he was aware that, according to him, the cheque at Exhibit

P-1 was given by him to Sri. Praveen Achar. However, it is

interesting to note that at the earliest point of time, in his reply

to the notice, which is at Exhibit D-1, the accused has not at all

mentioned that the cheque at Exhibit P-1 was issued to the said Crl.R.P.No.696/2015

Praveen Achar as a security. On the other hand, he has only

stated that, the cheque was not issued to the complainant and

he would explain as to how the said cheque reached the hands

of the complainant when the matter reaches a Court of law. As

submitted by the learned counsel for the respondent/

complainant, the said reply of the accused at Ex.D-1 to the legal

notice of the complainant at Exhibit P-4 is nothing but a clever

reply by the accused. Had he really given the cheque to the said

Praveen Achar but not to the complainant, then, he should have

at least at the earliest point of time in his reply notice come up

with such a contention which the accused has not done in the

matter. Therefore, the defence of the accused that the cheque

at Ex.P-1 was issued to Sri.Praveen Achar and the same was

mis-used by the complainant, is neither proved nor could able to

create any doubt in the case of the complainant.

15. According to the complainant, the accused was known

to him and the accused had purchased some gold ornaments

worth `13,80,000/-. On the other hand, the contention of the

accused is a total denial, who has gone to the extent of telling

that the complainant was a stranger to him. As already

observed above, nowhere the accused has stated as to how Crl.R.P.No.696/2015

come his cheque at Ex.P-1 reached the hands of the

complainant, who, according to him, was totally a stranger.

The complainant, in order to show that the accused was

known to him even prior to the transaction, has examined PW-2

- Sri. Shankar Rai, the Bank Manager and also got produced

documents from Exhibits P-10 to P-13.

16. PW-2 - Sri. Shankar Rai, the Bank Manager has stated

that, in his Branch, which is Falnir Branch of Vijaya Bank, the

accused was maintaining an account, in which the cheques

bearing Serial Numbers from 401541 to 401550 were issued on

10-02-2008. The said Ledger extract was marked at Exhibit

P-10. He also stated that from the Ledger of the accused, it is

noticed that, on 16-12-2008 and 20-01-2009, a sum of

`50,000/- and a sum of `1,00,000/- was respectively paid to the

complainant, as could be seen in the entries at Exhibits P-11(a)

and P-11(b). Those payments were made by honouring two

cheques, the copies of which were also produced by him and

marked as Exhibits P-12 and P-13. In his cross-examination, he

admitted a suggestion as true that those two cheques were

bearer cheques and that the complainant by mentioning as Crl.R.P.No.696/2015

account payee cheques had got the amount credited to his

account. The said evidence of PW-2, more particularly, the

suggestions made to him in his cross-examination and a perusal

of Exhibits P-11(a), P-11(b), P-12 and P-13 would go to show

that, a sum of `50,000/- and a sum of `1,00,000/- were shown

to have been paid by the accused to the complainant through

cheques. The debit entries in the account of the accused can be

found as on 16-12-2008 and 20-01-2009 respectively. The

name of the complainant is also shown in the account statement,

which clearly would go to show that, much prior to the date of

the cheque at Exhibit P-1, the accused had earlier made two

payments to the complainant through cheques, which establishes

that the complainant and the accused were known to each other

even prior to the alleged transaction. The said contention of the

accused that, the complainant was a stranger to him is also

proved to be a false one.

17. According to the complainant, the cheque in question

at Exhibit P-1 was given to him by the accused after purchasing

the gold ornaments. In order to prove the alleged transaction,

the complainant has produced Form VAT 100 which is the tax

return towards Value Added Tax (VAT), said to have been Crl.R.P.No.696/2015

submitted by the complainant for the month of April 2009 and

which is marked at Ex.P-9 and a tax invoice at Ex.P-8.

PW-1 in his evidence has stated that, Exhibit P-8 is the tax

invoice raised towards the sale of gold ornaments to the

accused. The said tax invoice bearing No.1410 goes to show

that, on 21-04-2009, different gold ornaments mentioned

therein, weighing about 91.6 grams were sold by the

complainant to the accused/petitioner who is also shown to be

running a Jewellery shop at that time. A total amount of

`13,81,527/- is shown as the total value of the articles including

the Value Added Tax (VAT) of `13,678/-.

18. Learned counsel for the petitioner/accused in his

arguments submitted that, the said transaction was not shown

in the tax, particularly for the Commercial Tax Department by

the complainant, as such, the transaction itself is a doubtful one.

In that regard, he drew the attention of the Court to the tax

returns submitted under Form VAT 100 and submitted that the

Tax amount mentioned in Exhibit P-8 is not reflected in the said

returns at Ex.P-9.

A perusal of the tax invoice book which has specific serial

numbers of the several tax invoices raised by the complainant Crl.R.P.No.696/2015

towards the business made in the month of April 2009 and

collection of the value added tax would go to show that, under

various invoices for the month of April 2009 including Ex.P-8

which is the tax invoice dated 21-04-2009, the complainant has

collected the following amounts in the month of April 2009, as

Value Added Tax (VAT) from various customers:-

"`25 + `11 + `5 + `9 + `21 + `6 + `4 + `7 + `11 + `13,678/- + `15 + `6 = `13,798/-".

It is the said amount of `13,798/- which is shown as the

tax payment details and the total tax payable in the tax returns

produced at Ex.P-9. The said amount of `13,678/- is the value

added tax (VAT) shown in Exhibit P-8 which is also included in

Ex.P-9. Therefore, the contention of the learned counsel for the

petitioner/accused that, there is no declaration of the alleged

sale transaction in the tax returns (VAT) filed by the complainant

at Ex.P-9, is also not acceptable.

19. Barring the above, the petitioner/accused has not

raised any other grounds or addressed any other augments

worth to be considered. On the other hand, as observed above,

the admitted cheque at Exhibit P-1, of which the accused is the

drawer has been dishonoured with the banker's shara of Crl.R.P.No.696/2015

'insufficient funds' as could be seen in the banker's memo at

Ex.P-2 and the debit slip at Ex.P-3. The copy of the legal notice

at Exhibit P-4 has been admittedly served upon the accused

which is further evidenced in the postal receipt and postal

acknowledgement card at Exhibits P-5 and P-6 respectively. The

reply sent by the accused as per Exhibit D-1 proves to be

untenable and could not able to shaken the evidence of the

complainant, both oral and documentary and even the evidence

of DW-1 also, could not, in any way, succeed in introducing any

doubt in the case of the complainant. On the other hand, the

evidence of PW-1 and PW-2 corroborated by Exhibits P-1 to P-13

have clearly shown that towards the legally enforceable debt, the

accused had issued a cheque to the complainant as per Exhibit

P-1, which came to be dishonored for the reason of insufficiency

of funds. Thereafter, despite the complainant issuing the legal

notice to the accused, demanding the cheque amount, the

accused has failed to meet the demand. As such, the

complainant has proved beyond reasonable doubt that the

accused has committed the offence punishable under Section

138 of the N.I. Act.

Crl.R.P.No.696/2015

20. It is appreciating the evidence placed before them

properly, both the Trial Court and the learned Sessions Judge's

Court have rightly held the accused guilty of the alleged offence

and after convicting him, have awarded proportionate sentence

for the proven guilt. I do not find any illegality, irregularity or

impropriety, warranting interference in the impugned judgments

of conviction and order on sentence passed by the Trial Court

and confirmed by the learned Sessions Judge's Court.

Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition stands dismissed as devoid

of merit.

In view of disposal of the main petition, I.A.No.1/2019

does not survive for consideration.

Registry to transmit a copy of this order to both the Trial

Court and also the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

BMV*