Smt. M.N.Sujatha vs Sri. G. Surendra Shetty
2022 Latest Caselaw 526 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 12TH DAY OF JANUARY, 2022

                              BEFORE:

             THE HON'BLE MR. JUSTICE P.N.DESAI

        CRIMINAL REVISION PETITION No.389/2016

BETWEEN:
SMT. M.N.SUJATHA
W/O. B.E.NAGESH
AGED ABOUT 38 YEARS
R/O. BYGOOR VILLAGE
AVATHI POST
CHIKKAMAGALUR TALUK & DISTRICT - 577101
                                               ... PETITIONER

(BY SRI MADHU M.T. FOR
    SRI GIRISH B.BALADARE, ADVs.)

AND:
SRI. G. SURENDRA SHETTY
S/O. SEENA SHETTY
AGED ABOUT 48 YEARS
TIMBER MERCHANT
R/AT. SOURABHA
CHRISTIAN COLONY
CHIKKAMAGALUR - 577 101
                                               ...RESPONDENT

(BY SRI ARAFAT, FOR
    SRI SACHIN B.S., ADVS.)


      THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION
397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER
PRYAING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE JUDGMENT DATED 25.07.2013 PASSED BY THE II ADDL. CIVIL
JUDGE AND JMFC AT CHIKKAMAGALUR IN C.C.NO.1287/2008 BY
CONVICTING THE PETITIONER AND THE SAME ORDER WAS
CONFIRMED BY THE APPELLATE COURT BY DISMISSING THE APPEAL
FILED BY THE PETITIONER, THE JUDGMENT DATED 01.03.2016
PASSED BY THE II ADDL. S.J. AT CHIKKAMAGALUR IN
                               -2-


CRL.A.NO.257/2013 AND THE PETITIONER TO BE ACQUITTED FOR
THE OFFENCE ALLEGED AGAINST HIM.


      THIS CRIMINAL REVISION PETITION IS COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-

                         ORDER

This revision petition is filed assailing the dismissal of

Crl.A.No.257/2013 dated 01.03.2016, wherein the learned

II Additional Sessions judge, Chikmagaluru, dismissed the

appeal by confirming the judgment of conviction and order

of sentence passed in C.C.No.1287/2008 on the file of 2nd

Additional Civil Judge, JMFC, Chikmagaluru dated

25.07.2013, wherein the accused/revision petitioner is

convicted for the offence punishable under Section 138 of

Negotiable Instruments Act, 1881(for short hereinafter

referred as 'N.I. Act') and sentenced him to pay a fine of

Rs.2,05,000/- and out of the fine amount of Rs.2,05,000/-,

the accused was ordered to pay a sum of Rs.2,00,000/- to

the complainant as compensation and in default of

payment of fine, the accused shall undergo Simple

Imprisonment for a period of one year.

2. The revision petitioner was the accused and

respondent was the complainant before the trial court and

they will be referred as complainant and accused as per

their respective ranks before the trial court for the sake of

convenience.

3. The brief case of the complainant before the

trial court is that the accused issued a cheque for

Rs.1,86,000/- dated 20.03.2008 in order to discharge the

consideration amount received by him from the

complainant. The said cheque was drawn on Chikmagalur-

Kodagu Grameena Bank. It is further contended that the

accused had promised to the complainant that cheque will

be honoured. When the complainant presented the cheque

for encashment, it was dishonoured. The said cheque was

returned with an endorsement "funds insufficient" in the

account of accused. Therefore the complainant got issued

a legal notice on 16.04.2008 and the said notice was duly

served on the accused. But in spite of that either the

accused paid the amount nor replied the said notice.

Hence, the complainant lodged the complaint before the

JMFC court.

4. Accused appeared before the court, not

pleaded guilty and claims to be tried.

5. Thereafter, the complainant got himself

examined as PW.1 and got marked seven documents as

Exs.P1 to P7 and closed his side evidence. On behalf of

accused, she got examined herself as DW.1, but no

documents were marked on behalf of accused. After

hearing the arguments, the learned JMFC convicted the

accused for the offences punishable under Section 138 of

N.I Act.

6. Aggrieved by the judgment of conviction and

order of sentence, the revision petitioner/accused

preferred Crl.A.No.257/2013 before the II Additional

Sessions Judge, Chikmagaluru. After hearing the

arguments, learned Sessions Judge dismissed the appeal

preferred by accused, thereby confirmed the judgment of

conviction and order of sentence, passed by the trial court.

Aggrieved by the same, the revision petition has preferred

this revision petitioner.

7. I have heard Sri. Madhu M.T., learned counsel

appearing on behalf of Sri. Girish B.Baladare, learned

counsel for the petitioner and Sri. Arfat, learned counsel

who is representing learned counsel Sri. Sachin B.S.,

learned counsel for respondent.

8. Perused the records and also the evidence of

both oral and documentary produced by both the parties.

9. From the above materials, the point that arise

for my consideration is:

"Whether the impugned order passed by both courts are correct, legal and in conformity with the settled principle regarding appreciation of evidence in cases under Section 138 of the Negotiable Instruments Act, 1881, which are popularly called as cheque bounce cases ?"

10. Learned counsel for the revision

petitioner/accused argued that the judgment passed by

the learned JMFC and learned Sessions Judge are perverse

and not based on merits. It is contended that both the

courts have not properly appreciated the evidence of the

accused. It is further contended that the said cheque was

issued only for the purpose of security and the same was

not returned to the accused in spite of paying principal

amount to the complainant by accused. The said cheque

was mis-utilised for unlawful gain. The said aspect was not

properly appreciated by both the courts. The notice was

not duly served on the accused. It is also further

contended that there is no evidence to show that the

complainant has financial capacity to advance such huge

amount. The cheque in question was issued by the accused

in connection with the timber transaction with the

complainant. In the circumstances, it is evident that the

said cheque was issued as a security only and this fact was

not properly appreciated by both the courts. The

complainant has failed to prove the burden casted upon

him. Therefore, the question of raising presumption in

favour of the complainant does not arise. Learned counsel

argued that the complainant has failed to comply the

ingredients of Section 138 of N.I. Act. Therefore, the said

conviction is not sustainable. With these main arguments,

learned counsel prayed to set aside the judgment passed

by learned Sessions Judge in Crl.A.No.257/2013 whereby

confirming the judgment of conviction passed by trial court

in C.C.No.1287/2008 against the accused/Revision

Petitioner.

11. Against this learned counsel for the

respondent/complainant supported the judgment of both

the courts and argued that complainant has discharged his

initial burden casted upon him by placing both oral and

documentary evidence. Both the courts have rightly

appreciated the evidence in a proper perspective and have

rightly come to the conclusion and convicted the accused.

He further contends that as there is no perversity or

illegality in both the judgments, the revision petition needs

to be dismissed. With these arguments, he prays to

dismiss the revision petition.

12. I have carefully considered the arguments

advanced by the learned counsel for both the parties and

perused the contents of the complaint and also evidence

on record.

13. The complainant/respondent has filed his

examination-in-chief affidavit, as PW-1 wherein he has re-

iterated the contentions of his written complaint. He has

also produced the cheque which is marked as Ex.P1 -

Cheque which shows that the accused/revision petitioner

has issued the cheque dated 20.03.2008 in favour of the

complainant for a valuable consideration of Rs.1,86,000/-.

Ex.P2 is the Bank intimation stating that the said cheque

was returned dishonored for the reason that 'in sufficient

funds'. Ex.P4 is the legal notice calling upon the accused to

repay the said amount. Ex.P5 is the postal

acknowledgment. Ex.P6 is the postal receipt. Ex.P7 is the

certificate of posting. All these documents clearly indicates

that the accused/revision petitioner has issued a cheque

and it was returned with an endorsement cheque dis-

honored due to 'in sufficient funds'. In the cross-

examination by the accused, it is suggested that accused

and her husband - Nagesh were doing timber work and the

accused has issued the cheque as security for giving the

timber, they have gave timber and asked him to encash

the cheque and hence, he presented the same. Simply, it

is suggested that the accused has not issued any cheque

and just to make unlawful gain, complainant has filed the

complaint, such suggestion is denied. So cross-

examination does not show that the evidence adduced by

the complainant is not probable. On the other hand, the

evidence placed by the complainant is in conformity with

ingredients of Section 138 of N.I. Act.

14. Against this the accused/respondent has gave

her defence evidence as DW-1. In her evidence, she has

stated that she is working as Attender in Assistant

Commissioner's office at Chickmagaluru. She admits that

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the cheque - Ex.P1 is her cheque and she also admits her

signature on the said cheque. She states that she has lost

one cheque and she has not lodged any complaint to the

police in this regard. Therefore, she prayed to dismiss the

complaint. This is only her evidence. In the cross-

examination, she has admitted that she has not lodged

any complaint before the police intimating them with

regard to loss of cheque. She also admitted that since she

is the government servant, she is having knowledge about

transaction. She has stated that she has kept ready the

signed cheque, in order to go to bank to draw the amount,

but she has lost the said cheque. Such evidence does not

inspire any confidence in her. On the other hand, she has

stated that she does not know whether the Nagesh is

having any timber business and she has stated that

Nagesh is not her husband. Simply she stated that

signature on Ex.P1 - cheque is her signature. But she has

not taken any steps to produce any documents to prove

that the amount given by the complainant are not legally

recoverable debt. On the other hand, she admitted that

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address mentioned in the notice is her father in law's

address. Therefore, her contention that the notice was not

duly served on her cannot be accepted. In spite of service

of notice, she has not replied the said notice and kept

quite. Therefore, on entire consideration of evidence of

complainant and accused, it is evident that the

complainant by adducing oral and documentary evidence

as per Exs.P1 to P7, has discharged his initial burden

casted on him to show that the accused has committed

offence under Section 138 of N.I Act. Further the

presumption under Sections 118 and 139 of N.I. Act is in

favour of the complainant, which is not reubutted by the

accused by placing legally reliable and admissible

evidence.

15. The accused has to rebut the presumption by

producing documents to show that, either the evidence

lead in by the complainant cannot be believed or he has to

lead his defence evidence to show that the case of the

complainant is not probable and there is no existence of

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legally recoverable debt or any liability by him in favor of

complainant. If the evidence of the accused is taken, it is

evident that she does not know where she has lost the

cheque but she admits her signature on Ex.P1 - cheque

and stated that she has misplaced or lost the same. Such

vague statement cannot be accepted in the absence of any

documents. She has not intimated the bank. If at all she

has lost the cheque, she could immediately intimate to

bank or taken action against complainant. She is working

as Attender in Assistant Commissioner's office She is a

Government Servant. Both the courts have raised the

presumption under General Clause Act regarding service of

notice and held that when once the notice is sent to the

correct address, then the presumption is in favor of

deemed services. Accused has to rebut it. But accused was

miserably failed to rebut any such presumption in favor of

complainantt.

16. The trial court has relied on the decision of

Hon'ble Apex Court in case of Mohan Vs. Rangappa

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reported in 2010 Crl.L.J. 2871, wherein the Supreme

Court held that unless the contrary is proved, it shall be

presumed that the alleged cheque is issued for the

repayment of debt or other liability and it shall also

presume that such debt is legally recoverable debt under

Section 139 of N.I.Act. The said presumption is not

rebutted by the accused either by preponderance of

probability or by placing any other cogent evidence.

Therefore, it is evident from evidence that the complainant

has discharged his initial burden casted on him to prove

the legally recoverable debt but the accused has failed to

rebut the presumption. Therefore, both the courts have

rightly come to the conclusion that the complainant has

proved the ingredients of Section 138 of N.I. Act,

accordingly, convicted the accused and sentenced him.

17. I find no perversity in the findings of the first

appellate court or the trial court. The evidence on record

clearly indicates that the defence which has taken by the

accused is only for the sake of defence and there is no

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truth in it. Therefore, the judgment of the learned Sessions

Judge, whereby confirming the judgment of conviction

passed by the trial court is neither perverse nor illegal and

calls for any interference by this court.

18. On the other hand, both the courts have

appreciated the evidence in a proper perspective also in

the light of the presumption arising under N.I. Act and also

principles stated by Hon'ble Supreme Court in appreciation

of evidence in cheque bounce case which are filed under

Section 138 of N.I. Act. I find no ground to allow the

revision petition and revision petition is liable to be

dismissed. Accordingly, I pass the following:

ORDER

(i) Revision petition is dismissed.

      (ii)    No order as to costs.

      (iii)   Intimate the trial court.



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                                             Sd/-
                                            JUDGE

HJ