Lakshmamma W/O Late Narasimhaiah vs Smt Devamma W/O Late Mallaiah
2021 Latest Caselaw 675 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 12TH DAY OF JANUARY, 2021

                               BEFORE

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

        CRIMINAL REVISION PETITION No.311 OF 2012


BETWEEN:

Lakshmamma
W/o late Narasimhaiah
Aged 50 years
Working as Lab Attender,
Pathalogy,
M.M.C. Medical College
K.R. Hospital, Mysuru.                                 :PETITIONER


(By Sri S.N. Bhat, Advocate)


AND:

Smt. Devamma
W/o late Mallaiah
Aged 58 years
Sanitory Worker,
K.R. Hospital, Mysuru.                                 :RESPONDENT

(By Sri P. Venkataramana, Advocate)


       This Criminal Revision Petition is filed under Section 397 read
with Section 401 of Cr.P.C. praying to set aside the Judgment
                                                     Crl.R.P.No.311/2012
                                   2


passed by the V Addl. Dist. and Sessions Judge at Mysuru in Crl.A.
No.91/2011 dated 07.02.2012 and the Judgment passed by the Prl.
I Civil Judge and JMFC at Mysuru in C.C. No.788/2008 dated
10.06.2011 and allow this appeal in the interest of justice.


      This Criminal Revision Petition coming on for hearing through
Video Conferencing / Physical Hearing this day, the Court made the
following:

                               ORDER

The petitioner was the accused in the Court of learned Prl. I

Civil Judge and JMFC at Mysuru (hereinafter referred to as 'the Trial

Court) in C.C. No.788/2008 who was tried for the offence

punishable under Section 138 of the Negotiable Instruments Act,

1881 (for brevity, hereinafter referred to as 'the N.I. Act').

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

Court is that the accused who was acquainted with her had

borrowed a sum of `60,000/- on 01.05.2007, another sum of

`35,000/- on 12.07.2007 and one more sum of `55,000/- on

18.09.2007 agreeing to repay the entire amount within a short

period of time. However, since the accused did not return the said

money, at the demand made by the complainant the accused Crl.R.P.No.311/2012

issued a post-dated cheque bearing No.130273 dated 01.02.2008

for a sum of `75,000/- drawn on State Bank of Mysore, Medical

College Extension Counter, Mysore, in favour of the complainant.

When the complainant presented the said cheque for realisation on

01.02.2008 through her banker, the same came to be dishonoured

with banker's endorsement "insufficiency of funds" on 08.02.2008.

It is thereafter the complainant got issued a legal notice to the

accused demanding the cheque amount. Since the accused neither

replied to the notice nor met the demand, the complainant

instituted a case against her for the offence punishable under

Section 138 of the N.I. Act.

In the Trial Court, the accused appeared through her counsel

and contested the matter. After recording the evidence led before it

and hearing both side, the Trial Court by its impugned Judgment of

conviction and Order on sentence dated 10.06.2011, convicted the

accused for the offence punishable under Section 138 of the N.I.

Act and sentenced her to undergo simple imprisonment for a period

of twenty days and also to pay a fine of `1,00,000/- and in default

of payment of fine to undergo simple imprisonment for one month.

Crl.R.P.No.311/2012

Challenging the said Judgment of conviction, the accused

preferred Crl.A. No.91/2011 in the Court of V Additional District and

Sessions Judge, Mysore (for brevity, 'Sessions Judge's Court') which

Court, after hearing both side arguments, by its Judgment dated

07.02.2012 dismissed the appeal with regard to conviction.

However, it modified the sentence and confined the sentence only

for fine amount that too for a sum of `78,000/-. Not satisfied with

the same, the accused has preferred the present revision petition.

3. The Sessions Judge's Court's and the Trial Court records

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

the arguments of learned counsels for the parties and perused the

materials placed on record.

4. The point that arises for my consideration is, "whether

the Judgment of conviction and Order on sentence passed by the

Trial Court and the modified Judgment and Order on sentence

passed by the Sessions Judge's Court are incorrect and suffer with

any illegality or perversity, warranting interference at the hands of

this Court?"

Crl.R.P.No.311/2012

5. Learned counsel for the petitioner appearing through

video conference, in his single point argument submitted that the

materials placed by the complainant in the Trial Court itself clearly

go to show that there exists no legally enforceable debt as on the

alleged date of issuance of the cheque. Therefore, when there

exists no legally enforceable debt, Section 138 of the N.I. Act would

not get attracted. This aspect both the Trial Court as well as the

Sessions Judge's Court did not consider in its proper perspective

which has led them to pass erroneous Judgments.

6. Learned counsel for the respondent in his arguments

submitted that the cheque and its signature as that of the accused

is not in dispute. Admittedly, the accused has not replied to the

legal notice sent to her by the complainant demanding the cheque

amount. No defence evidence has been led to rebut the

presumption drawn in favour of the complainant and the

complainant was illiterate though she was working in a hospital.

Thus, considering all these aspects, the Trial Court as well as the

Sessions Judge's Court have rightly appreciated the evidence and Crl.R.P.No.311/2012

given a correct finding which cannot be called as erroneous or

illegal.

7. It is not in dispute that the accused and the

complainant were known to each other about fifteen to twenty

years prior to the date of cross examination of P.W.1 which was

recorded on 28.01.2011. The evidence of P.W.1 that since about

fifteen to twenty years the accused was availing loans from her in

the form of handloan and used to repay those loans has also not

been specifically denied in the cross examination of P.W.1. As

such, the acquaintance between the parties and the frequent

monetary transactions between them in the form of handloan from

complainant to accused remain an undisputed fact. It is also not

in dispute that the cheque at Ex.P1 is a cheque pertaining to the

account of the accused and it bears the signature of the accused. It

is also not in dispute that the said cheque when presented for

realisation by the complainant, came to be dishonoured by the

banker's endorsement as per Ex.P2 showing that there was no

sufficient funds in the account of drawer of the instrument. It is

also not in dispute that thereafter the complainant issued a legal Crl.R.P.No.311/2012

notice demanding the cheque amount from the accused as per the

notice at Ex.P3 which was served upon the accused as evidenced in

the postal acknowledgements at Exs.P4 and P5. However, the only

defence of the accused is that there was no debt in existence as on

the date of the dishonoured cheque and/or its presentation, as

such, Section 138 of the N.I. Act is not attracted. These aspects

prima facie confers the presumption in favour of the complainant

under Section 139 of the N.I. Act. However, the said presumption

is rebuttable.

8. In order to rebut the presumption, the accused has

taken a defence that there existed no legally enforceable debt as on

the alleged date of either issuance of the cheque or presentation of

the cheque, as such, Section 138 of the N.I. Act is not attracted.

Explanation to Section 138 of the N.I. Act says that, for the purpose

of Section 138 of the N.I. Act "debt or other liability" means a

legally enforceable debt or other liability. Therefore, there must be

a legally enforceable debt in order to attract Section 138 of the

N.I. Act. No doubt, Section 139 of the N.I. Act forms a

presumption in favour of the holder once he proves that he has Crl.R.P.No.311/2012

received a cheque from the drawer of the instrument which cheque

is duly executed by the drawer in his favour or that he is the holder

in due course of the instrument. The said presumption is rebuttable.

No doubt the accused has neither replied to the legal notice served

upon her by the complainant nor entered the witness box to lead

evidence to rebut the presumption. But it is not mandatory that

such a legal notice is required to be necessarily replied or the

accused should enter the witness box to rebut the presumption

formed in favour of the complainant. If the accused is satisfied that

in the cross examination of P.W.1 or through other available

materials placed before Court itself, she can rebut the presumption

then, she need not have to enter the witness box and lead evidence

from her side. Therefore, the argument of the learned counsel for

the respondent "that the accused has neither replied to the notice

nor led her defence evidence, as such, her contention cannot be

accepted" is not convincing.

9. In order to dismantle the presumption which had

formed in favour of the complainant who could show that the

accused had issued a cheque as per Ex.P1 which subsequently Crl.R.P.No.311/2012

came to be dishonoured when presented for realisation and also

legal notice was issued to the accused, the accused subjected P.W.1

to a thorough and searching cross examination.

10. In the cross examination, P.W.1 in the opening

paragraph has stated that accused was availing loan from her since

about fifteen to twenty years. About fifteen years back the accused

had requested her for a loan. At that time she has not given

anything in writing except the cheque. It is relying upon the said

statement made by the complainant, learned counsel for the

petitioner vehemently submitted that even according to the

complainant the said cheque was given to her about fifteen years

back. Admittedly as on the said date / period, there was no loan in

existence, as such, there existed no legally enforceable debt.

11. It is pertinent to note that nowhere in her evidence, the

complainant has specifically or categorically stated the date of

receipt of the cheque by her. She has not stated as to when the

accused had given her the cheque which is at Ex.P1. Therefore,

when the date of alleged issuance of cheque to the complainant by

the accused has not been stated, then the answer to the said Crl.R.P.No.311/2012

question can be looked into only by her answer given in the cross

examination where she has stated that the cheque was given to her

about fifteen years back. Had really the cheque was given to the

complainant subsequent to the alleged loans dated 01.05.2007,

01.07.2007 and 18.09.2007, she should have definitely and

necessarily stated the date of issuance of cheque. On the other

hand, as already observed above, nowhere in her cross examination

she has stated as to when the said cheque was given to her. But in

her cross examination she has stated that cheque was given to her

about fifteen years back. The said fifteen years back goes back

somewhere near the year 1996. Admittedly the loan in question

is alleged to have been given by the complainant to the accused

in the year 2007. Therefore, a question of issuing a cheque

in the year 1996 anticipating taking a loan in the year 2007 would

not arise. Though the complainant has not told that cheque

given was a post-dated cheque but even according to

the complainant there was no existing loan as on the said

date of issuance of cheque i.e. fifteen years prior to

her date of cross examination which date is 28.01.2011.

Crl.R.P.No.311/2012

Furthermore, the complainant has nowhere made any further

statement showing any nexus between the said cheque said to have

been issued about fifteen years back which is at Ex.P1, and the

alleged loans dated 01.05.2007, 12.07.2007 and 18.09.2007.

Therefore, the reading of the evidence of P.W.1 in its entirety would

clearly go to show that about fifteen years prior to the alleged loan

transaction of the year 2007, the accused was in the habit of taking

loan from the complainant now and then and she used to repay the

same. It is at that time she had given a duly filled cheque to the

complainant and complainant has made use of the said cheque as

though it has been made towards the repayment of the alleged

loans of the year 2007.

12. No doubt, learned counsel for the respondent in his

arguments submitted that had the accused given a cheque to the

complainant about fifteen years back, she should have definitely

taken action in recollecting the same. But the mere alleged inaction

to collect the said cheque back would not by itself lead one to

believe that the said cheque was given for repayment of the alleged

loan of the year 2007. This is also for the reason that P.W.1 Crl.R.P.No.311/2012

(complainant) nowhere has stated that, when her alleged loan said

to have been given to the accused in the year 2007 was three

different loans totally to `1,15,000/-, how could she receive a

cheque for a part amount i.e. `75,000/- only. Nothing is mentioned

either in her complaint or in her evidence as to what made her to

accept a lesser sum than the alleged sum said to have been lent to

the accused. This also further raises a doubt in the contention of

the complainant that the cheque in question was given to her

towards the alleged repayment of the alleged loans of the year

2007.

13. However, both the Trial Court as well as the Sessions

Judge's Court ignored these vital aspects but gave more

emphasis on the alleged aspects that the complainant was an

illiterate and as such, was not aware of the niceties and

requirements for the transaction through a cheque. The said

reasoning does not appear to be correct in the circumstances

of the case for the reason that admittedly, the complainant is

working in a hospital and claims to have been doing monetary

transaction with none else than the present accused for

about fifteen to twenty years. In such a situation, as a money Crl.R.P.No.311/2012

lender though not by profession she was expected to have the basic

knowledge about money lending and the cheque transaction etc.

When she lends the loan amount and accepts the cheque towards

the payment of the loan amount it means that she knows the

nature and the consequences of the transaction through cheque.

Therefore, her alleged illiteracy would not take away her required

knowledge about the transaction through availing cheque.

Therefore, when the evidence of none else than the PW-1

(complainant) herself is clear that the cheque was given to her

about fifteen years back and admittedly when there was no existing

loan liability from the accused towards her and admittedly when the

complainant has failed to establish any nexus between the alleged

cheque and the subsequent loan of the year 2007, the only

conclusion that could have been drawn by the Trial Court as well as

the Sessions Judge's Court was that the accused has successfully

rebutted the presumption which was formed in favour of the

complainant under Section 139 of the N.I. Act.

14. Since the Trial Court as well as the Sessions Judge's

Court have failed to notice the said aspect and have not appreciated Crl.R.P.No.311/2012

the evidence in its proper perspective, the same has led to the

passing of an erroneous Judgment convicting the accused for the

alleged offence. Since the said finding now proves to be an

erroneous finding with some perversity, the same requires to be set

aside and since the complainant has failed to prove that the

accused has committed the guilt punishable under Section 138 of

the N.I. Act, the petition deserves to be allowed and the accused

deserves to be acquitted of the alleged offence. Accordingly, I

proceed to pass the following:

ORDER

The criminal revision petition is allowed.

The Judgment of conviction and Order on sentence passed by

the Prl. I Civil Judge and JMFC at Mysuru in C.C. No.788/2008

dated 10.06.2011 and the Judgment and Order on sentence passed

by learned V Addl. District and Sessions Judge at Mysore in

Crl. A. No.91/2011 dated 07.02.2012 are set aside. The accused is

acquitted of the offence punishable under Section 138 of the N.I.

Act.

Crl.R.P.No.311/2012

The amount of deposit made if any by the petitioner in this

revision petition be refunded to her after the period of appeal and if

no appeal is preferred by the complainant.

Registry to transmit copies of this Order along with Trial Court

and Sessions Judge's Court records to the concerned Courts,

without delay.

Sd/-

JUDGE

sac*