H S Suresh vs S Panchakshari
2022 Latest Caselaw 9195 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF JUNE 2022

                       BEFORE

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

 CRIMINAL REVISION PETITION No.1155 OF 2012

BETWEEN:

H.S. SURESH,
S/O SOMBEGOWDA,
AGED ABOUT 31 YEARS,
R/A TAVAREKERE VILLAGE,
KASABA HOBLI,
THOREMAVINHALLI POST,
TURUVEKERE TALUK,
TUMKUR DISTRICT-572227.                  .. PETITIONER

(BY SRI.K.A. CHANDRASHEKARA, ADVOCATE)

AND:

S. PANCHAKSHARI,
S/O SHIVAPPA,
AGED ABOUT 43 YEARS,
R/A P.H.C. QUARTERS,
TURUVEKERE TOWN,
TUMKUR DISTRICT-572227.                  .. RESPONDENT

(BY SRI.M.B. CHANDRA CHOODA, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C BY THE ADVOCATE FOR THE
PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO CALL FOR THE ENTIRE RECORDS AND SET ASIDE
THE ORDER DATED 11TH SEPTEMBER 2012 IN CRIMINAL
APPEAL NO.48/2011, PASSED BY THE FAST TRACK AT TIPTUR,
(CONFIRMING THE JUDGMENT AND SENTENCE PASSED BY THE
                                                    Crl.R.P.No.1155/2012
                                    2


CIVIL JUDGE & JMFC TURUVEKERE, IN C.C.NO.378/2009
DATED 18/5/2011 BY ALLOWING THIS CRIMINAL REVISION
PETITION IN THE INTEREST OF JUSTICE.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING AND RESERVED ON 09.06.2022 AND COMING ON
FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:

                                ORDER

The petitioner has challenged in this revision petition,

the confirmation of his conviction for the offence

punishable under Section 138 of the Negotiable

Instruments Act, 1881 (hereinafter for brevity referred to

as "the N.I. Act").

2. The respondent in this revision petition is the

complainant in C.C.No.378/2009 filed in the Court of the

learned Civil Judge and J.M.F.C, Turuvekere (hereinafter

for brevity referred to as "the Trial Court") against the

present petitioner (accused) alleging the offence

punishable under Section 138 of the N.I. Act.

3. The summary of the case of the complainant in

the Trial Court was that on 6.6.2008, accused has Crl.R.P.No.1155/2012

borrowed a sum of `50,000/- from him for the purpose of

purchase of Maruti Omni Van and had agreed to return the

said amount within six months. When the complainant

demanded the accused for the return of the loan amount,

the accused issued him a cheque bearing No.338349 dated

3.1.2009, drawn on State Bank of Mysore, Turuvekere

branch, for a sum of `50,000/- in favour of the

complainant. On the same day, complainant presented the

cheque for its realization, however, it returned unpaid with

the banker's endorsement of ""funds insufficient" in the

account of the drawer. The complainant thereafter got

issued a legal notice to the accused demanding the

payment of the cheque amount. Since the accused failed to

make payment of the cheque amount, the complainant

was constrained to file a criminal case against him in

C.C.No.378/2009 in the Court of the Civil Judge and JMFC,

Turuvekere for the offence punishable under Section 138

of the N.I.Act.

Crl.R.P.No.1155/2012

4. The accused appeared in the Trial Court and

contested the matter through his counsel. He pleaded not

guilty and claimed to be tried. Accordingly, the Trial Court

by its judgment dated 18.05.2011, held the accused guilty

for the alleged offence punishable under Section 138 of the

N.I. Act and convicted him for the said offence and

sentenced him accordingly.

5. Aggrieved by the said judgment of conviction

passed by the Trial Court in C.C.No.378/2009, the

petitioner preferred a Criminal Appeal No.48/2011 in the

Court of the Fast Track at Tiptur, (hereinafter for brevity

referred to as "the Sessions Judge's Court).

6. After hearing both side, the learned Sessions

Judge's Court, by judgment dated 11.09.2012, dismissed

the appeal and confirmed the impugned judgment passed

by the Trial Court. Aggrieved by the same, the petitioner

has preferred this revision petition.

Crl.R.P.No.1155/2012

7. The Trial Court and Sessions Judge's Court's

records were called for and the same are placed before this

Court.

8. The learned counsel for the petitioner and

learned counsel for the respondent are physically present

in the Court.

9. Heard the arguments from both side. Perused

the materials placed before this Court including the Trial

Court and Sessions Judge's Court's records.

10. For the sake of convenience, the parties would

be henceforth referred to as per their rankings before the

Trial Court.

11. After hearing the learned counsels for the

parties, the only point that arise for my consideration in

this revision petition is:

     Whether      the   judgment          under     revision    is
     perverse,    illegal    and       erroneous,    warranting
     interference at the hands of this Court?
                                                                Crl.R.P.No.1155/2012

12. The complainant who got himself examined as

PW1 in his examination-in-chief in the form of affidavit

evidence, has reiterated the contentions taken up by him

in his complaint. In support of his contention, he got

produced and marked the returned dishonored cheque at

Ex.P-1, bankers endorsement for returning the cheque at

Ex.P-2, counterfoil at Ex.P-3, another bankers

endorsement at Ex.P-4, copy of the legal notice at Ex.P-5,

postal receipt at Ex.P-6, acknowledgement card at Ex.P-7,

Certificate of Posting at Ex.P-8 and the complaint filed by him

under Section 200 of Cr.P.C. at Ex.P-9. The complainant got

examined one Sri.Athik Chandra Rao - the Deputy Manager of

State Bank of Mysuru at Turuvekere branch as PW2, who in his

evidence has stated that the cheque at Ex.P-1 was issued by

their bank to the accused and when presented

for realization by the complainant, the same has

returned for the reason of ""funds insufficient"" in the

account of the drawer.

        The       accused               got       himself        examined       as

DW1       and     got           examined          one     Sri.Kantharaju,      one

Sri.Mahalinga and Sri.Aslamsab as DW2, DW3 and DW4 Crl.R.P.No.1155/2012

respectively. No documents were marked as exhibits from

the accused side. The accused both in the cross-

examination of PW1 and in his evidence as DW1, has taken

a contention that at no point of time, he had availed any

loan of `50,000/- from the complainant, however, on

6.10.2008, he had taken a loan of `20,000/- from the

complainant, at which time, the complainant had collected

three blank but duly signed cheques from him as security.

Even though the said loan amount of `20,000/- was repaid

to the complainant on 20.12.2008, however, the

complainant did not return the cheques collected by him as

security on the pretext that those cheques are in his house

at Tumakuru and that he would get them back within a

week. However, he failed to return those cheques. On the

other hand, he misused one among those cheques by

presenting to the bank, which cheque is the subject

matter of the present case. However, PW1 did not admit

those suggestions made to him in his cross-examination,

as true. Further, he made denial suggestions to DW1 in his

cross-examination.

Crl.R.P.No.1155/2012

13. In the light of the above, it was the argument of

the learned counsel for the petitioner/accused that the

alleged loan of `50,000/- said to have been given by the

complainant to the accused has not been proved by him.

The evidence of the accused and the cross-examination of

PW1 creates a serious doubt in the existence of alleged

legally enforceable debt. However, both the Trial Court as

well as the Sessions Judge's Court did not notice the said

fact but in a mechanical manner, have held that the

complainant has proved the alleged guilt against the

accused, as such, those two impugned judgments warrants

interference at the hands of this court.

14. Learned counsel for the respondent/complainant

in his arguments submitted that the accused has not

denied taking a loan of `50,000/-. No suggestion was

made to PW1 in that regard. He also submitted that the

accused did not reply to the legal notice taking his defence

at the earliest point of time. Thus, the defence of the

accused is purely an after-thought. He also submitted the Crl.R.P.No.1155/2012

statement about Sri.Aslamsab that at his recommendation,

the complainant has filed the present complaint which has

come in the cross-examination of PW1, is a typographical

error. With this, he submitted that both impugned

judgments under revision do not warrant any interference

in them.

15. From the analysis of the evidence of both side,

the undisputed fact remains that complainant and the

accused were known to each other and that the cheque at

Ex.P-1 was drawn by the accused. It is also not in dispute

that the said cheque shown to have been drawn in the

name of the complainant was presented for its realization

by the complainant through his banker but the same came

to be returned unpaid with the banker's shara "funds

insufficient" in the account of the drawer. It is also not

specifically denied that after the return of the cheque at

Ex.P-1, the complainant got issued a legal notice to the

accused as per Ex.P-5 demanding from him the cheque

amount, as could be seen from the postal receipt at Ex.P-6 Crl.R.P.No.1155/2012

and the postal acknowledgement card at Ex.P-7, the said

notice was served to the addressee. However, the accused

failed to repay the cheque amount to the complainant. A

legal notice was also sent to the accused under Certificate

of Posting, as could be seen in Ex.P-8. These facts form a

presumption in favour of the complainant under Section

139 of the N.I.Act about the existence of a legally

enforceable debt. However, the said presumption is

rebuttable.

16. In order to rebut the presumption, the accused

has taken a defence of non-existence of alleged legally

enforceable debt of a sum of `50,000/- alleged to have

been given by the complainant in his favour on 6.6.2008.

On the other hand, he has taken a contention that he had

availed a loan of only a sum of `20,000/- from the

complainant on 6.10.2008, at that point of time, the

accused had collected three blank duly signed cheques

from him as a security. Even after the repayment of the

said loan amount of `20,000/- to the complainant in Crl.R.P.No.1155/2012

December 2008, he did not return those three cheques but

misused one among them in the present form.

17. The said defence of the accused was first taken

in the cross-examination of PW1 in the form of several

suggestions made to PW1 in that regard. However, PW1

did not admit those suggestions except stating that he

knows three persons by name Sri.Aslamsab, Sri.Kantha

and Sri.Mahalingappa. The witness specifically denied a

suggestion that the accused had availed a loan of a sum of

`20,000/- from him and in that regard as a security, three

blank but duly signed cheques of State Bank of Mysore,

Turuvekere branch, were given by the accused to him.

18. In his cross-examination as PW1, the

complainant in order to show that the alleged transaction

of a loan of `50,000/- from him to the accused is a fact,

has stated that the accused has got the cheque in question

written through Sri.Aslamsab on 3.1.2009 and it was the

said Sri.Aslamsab who himself brought that cheque and

gave it to him (PW1) and taken back Maruti Omni Van Crl.R.P.No.1155/2012

bearing registration No.KA 20-2789. He further stated that

the complaint in question was given by him on the

recommendation made by the said Sri.Aslamsab.

19. On the contrary, the said Sri.Aslamsab who was

examined as DW4 from the accused side in his

examination-in-chief, has categorically and specifically

stated that on 3.1.2009, the accused has not got any

cheques returned by him in favour of the complainant. He

also stated that in his presence, Maruti Omni vehicle

bearing registration No.KA 20-2789 was not taken back.

He also stated that he has not stated to the complainant to

lodge a complaint against the accused. These three very

material and important statements made by none-else

than Sri.Aslamsab about whom the complainant himself

has stated in his evidence, has not been denied or disputed

in the cross-examination of said Sri.Aslamsab (DW4).

Therefore, the very contention of the complainant that the

cheque in question was not only written by Sri.Aslamsab

but also was brought and delivered to him through Crl.R.P.No.1155/2012

Sri.Aslamsab and that it was at the recommendation of

Sri.Aslamsab, he has filed the present complaint against

the accused, proves to be not true.

20. On the other hand, apart from the accused who

got himself examined as DW1, the remaining three

witnesses i.e., Sri.Kantharaju as DW2, Sri.Mahalinga as

DW3 and Sri.Aslamsab as DW4 in their examination-in-

chief, have specifically stated that the accused had availed

a loan of only a sum of `20,000/- from the complainant in

their presence and it was at that time, the complainant

had collected three blank but duly signed cheques from the

accused for the security purpose. These witnesses have

also stated that it was in their presence only, the said loan

amount was repaid to the complainant. However, the

complainant did not return the three cheques collected by

him as a security purpose on the pretext that those three

cheques were at his home in Tumakuru and that he would

get them within a week. However, all these three

witnesses in their cross-examination have expressed their Crl.R.P.No.1155/2012

ignorance about the alleged loan transaction dated

6.6.2008 of a sum of `50,000/- between the complainant

and the accused. Thus, according to DW1 to DW4, the

three blank cheques were given to the complainant by the

accused while he availed a loan of `20,000/-.

21. Even though DW2, DW3 and DW4 in their cross-

examination have admitted as true that they were not

aware of alleged loan transaction between the complainant

and the accused dated 6.6.2008, however, by that itself, it

cannot be concluded that the complainant has shown that

there was any such loan transaction dated 6.6.2008 where

under the accused availed a loan of `50,000/- from him. It

is for the reason that throughout in his cross-examination,

PW1 has contended that there was no loan transaction

dated 6.10.2008 and that he had not given any loan on the

said day much less of a sum of `20,000/- to the accused.

If that is the contention of the complainant, then he has to

show as to what happened to three blank signed cheques

said to have been collected by him from the accused on Crl.R.P.No.1155/2012

the said date of 6.10.2008. Merely because PW1 denies the

loan transaction dated 6.10.2008 and he receiving three

blank cheques, by that itself, it cannot be held that there

was no loan transaction dated 6.10.2008 and no blank

cheques were given by the accused to the complainant. It

is because apart from DW1, all the three remaining

witnesses i.e., DW2, DW3 and DW4 admittedly acquainted

with the complainant have stated uniformly that on the

said day, three blank cheques of the State Bank of Mysore,

Turuvekere branch and belonging to the account of

accused, was given to complainant at his insistence. The

said uniform evidence of DW2, DW3, DW4 cannot be

disbelieved. Therefore, it is for the complainant to show as

to what happened to those three cheques, since according

to DW1, corroborated by the evidence of DW2, DW3 and

DW4, the complainant is alleged to have misused the one

among those three cheques in the form of the present

complaint. The alleged loan transaction as canvassed by

the complainant appears to be highly doubtful.

Crl.R.P.No.1155/2012

22. The above view also gains support from the fact

that according to PW1, as has come out in the cross-

examination, the cheque in question which is at Ex.P-1,

was got filled by the accused from Sri.Aslamsab (DW4)

and that it was the very said Sri.Aslamsab who brought the

said cheque and gave it to the complainant and collected

Maruti Omni vehicle bearing registration No.KA 20-2789. It

is also his case that, asked by said Sri.Aslamsab, he has

filed the present complaint against the accused. All these

four important and vital statements made, have been

categorically and specifically denied by the very said

Sri.Aslamsab who was examined as DW4. As analyzed

above, the said statement of Sri.Aslamsab that he had not

written any cheque on behalf of the accused on 3.1.2009

and that the vehicle was not collected in his presence and

also that he had not asked the complainant to lodge the

complaint against the accused, having remained undenied,

clearly falsifies the statement of PW1 that cheque at Ex.P-1

was written by Sri.Aslamsab and that he himself brought

that cheque and delivered it to him (complainant) and that Crl.R.P.No.1155/2012

he asked the complainant to file complaint. Therefore, the

very basis of delivery of the cheque dated 3.1.2009 from

the accused side to the complainant and the alleged scribe

of the cheque, everything having been falsified, it creates a

serious doubt in the case of the complainant that he had

lent a sum of `50,000/- to the accused on 6.6.2008. On

the other hand, it further makes more probable to believe

the evidence of DW1 to DW4 who have uniformly stated

that the complainant had collected three blank cheques

from the accused on the date 20.12.2008 while lending a

sum of `20,000/- to the accused and that even after

repayment of the said loan amount of `20,000/- to the

complainant, he on some false pretext, did not return

those cheques to the accused and has misused one among

them in the form of the present complaint. This is more

than sufficient to hold that accused has successfully

rebutted the presumption formed in favour of the

complainant.

Crl.R.P.No.1155/2012

23. The learned counsel for the respondent also

canvassed a point in his argument that accused has not

denied taking of loan of `50,000/- from the complainant. A

careful reading of the cross-examination of PW1 go to

show that it was suggested to the witness that without

giving any loan to the accused of a sum of `50,000/- and

only giving `20,000/- as loan, the complainant had

collected three cheques as security. Though PW1 did not

admit the said suggestion as true but by making the said

suggestion, the accused has specifically suggested to the

witness (the complainant) that he has not given loan of

`50,000/- to the accused. Therefore, the argument of the

learned counsel for the respondent that accused has not

denied taking of loan of `50,000/-, is not acceptable.

24. The learned counsel for the respondent also

submitted that even after service of notice, the accused

did not send any reply to the legal notice, as such, the

defence taken up by him is purely an afterthought.

25. It is a fact that the respondent did not reply to the

legal notice sent by the complainant to him demanding the Crl.R.P.No.1155/2012

payment of the cheque amount. However, merely because

the accused has not replied to the legal notice sent to him

by the complainant, by that itself, it cannot be inferred

that the accused had no defence in the matter and that he

has admitted his liability under the cheque. In the instant

case, even though the accused has not replied to the legal

notice sent to him by the complainant, however, he has

put his defence in the cross-examination of PW1 and also

himself has entered into the witness box and got examined

himself as DW1 and examined three more witnesses from

his side as DW2, DW3 and DW4. The defence taken by the

accused is also not of any subsequent events happened, if

any, subsequent to the institution of the complaint or that

there are anything to suspect that the said defence taken

up by the accused is an afterthought. Hence, the argument

of the learned counsel for the petitioner on the said point is

also not acceptable.

26. Lastly, the learned counsel for the respondent

submitted that few statements of PW1 made by him in his Crl.R.P.No.1155/2012

cross-examination with respect to the involvement of one

Sri.Aslamsab in the transaction, was a mere typographical

error.

As analyzed above, before making those statements

with respect to Sri.Aslamsab, the complainant as PW1

himself in his cross-examination has stated that he knows

not only the said Sri.Aslamsab but also two more persons

by name Kantha and Mahalingappa but incidentally, later

examined by the accused as witness from his side i.e., as

DW4, DW2 and DW3 respectively. The statement made by

PW1 about DW2 to DW4 in his cross-examination and

more particularly about the alleged role of DW4 in the

alleged loan transaction has come in a natural flow and

sequence in his cross-examination and that at no stretch of

imagination, those statements made by PW1 can be

considered as typographical error.

Further, had it been a typographical error, the

witness should have brought the same to the notice of the

learned Presiding Officer of the Court who recorded the

said evidence when the said evidence was read over to him Crl.R.P.No.1155/2012

before the Presiding Officer subscribing his signature to the

deposition and also obtaining the signature of the witness

himself to the said depositions. Now since those

statements made by PW1 were proved to be detrimental to

the case of the petitioner, more particularly after

examining the said Sri.Aslamsab as DW4, the petitioner

through his learned counsel in this Revision Petition, has

come up with the contention that the statement with

respect to Sri.Aslamsab made by PW1 in his cross-

examination are mere typographical error. Thus, the said

argument of the learned counsel for the respondent also is

not acceptable.

27. From the analysis made above, it is clearly

established that though the complainant attempted to

show that there existed a legally enforceable debt and

attempted to encash the benefit of presumption formed in

his favour but the accused could able to rebut the said

presumption successfully. Needless to say that as observed

by the Hon'ble Apex court in Sumeti Vij vs. Paramount Crl.R.P.No.1155/2012

Tech Fab Industries, reported in 2021 SCC Online SC

201, the scope of Section 139 of the N.I.Act is that when

an accused has to rebut the presumption, the standard of

proof for doing so is that of "preponderance of

probabilities".

The accused in a trial under Section 138 of the

N.I.Act has two options. He can either show that

consideration and debt did not exist or that under the

particular circumstances of the case, the non-existence of

consideration and debt is so probable that a prudent man

ought to suppose that no consideration and debt existed.

28. In the instant case, as analyzed above, though

a presumption about existence of legally enforceable debt

was initially formed in favour of the complainant under

Section 139 of the N.I.Act, however, the accused by

eliciting several statements in the cross-examination of

PW1 in his favour and also leading evidence by examining

four witnesses from his side, could able to successfully

make this court to suppose that no consideration and debt Crl.R.P.No.1155/2012

existed. Thus, the presumption formed in favour of the

complainant was successfully rebutted by the accused.

Once the presumption formed in favour of the complainant

stands rebutted, the onus would be upon the complainant

to prove the existence of legally enforceable debt or

passing of the consideration to the drawer of the cheque

towards the cheque issued in his favour. In the instant

case, except attempting to show that a presumption was

formed in his favour under Section 139 of the N.I.Act,

since the complainant has not taken any further steps to

show that there existed a legally enforceable debt or that

consideration towards the cheque under Ex.P-1 was passed

on to accused, suffice it to say that the complainant had

failed to prove the alleged guilt against the accused.

However, both the Trial Court and the Sessions Judge's

Court without analyzing the evidence placed before them

in their proper perspective, have hastily embraced the fact

that both the parties to the case were known to each other

and the cheque that was issued by the accused, was

presented by the complainant and the same came to be Crl.R.P.No.1155/2012

dishonored and also of the fact that a legal notice was also

sent by the complainant after dishonor of the cheque,

calling upon the accused to pay the cheque amount, have

jumped to a conclusion that complainant has proved the

alleged guilt of the accused. Since the said finding of both

the Trial Court and the Sessions Judge's Court now proved

to be perverse and erroneous, the same warrants

interference at the hands of this Court.

Accordingly, I proceed to pass the following:

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The impugned judgment of conviction and order

on sentence dated 18.05.2011 passed by the learned Civil

Judge and J.M.F.C, Turuvekere, in C.C.No.378/2009,

holding the revision petitioner (accused) guilty of the

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 and sentencing him for the alleged

offence, is set aside;

Crl.R.P.No.1155/2012

Consequently, the judgment passed by the Court of

Fast Track at Tiptur, dated 11.09.2012, in Criminal Appeal

No.48/2011, is also set aside.

(iii) The revision petitioner/accused - Sri. H.S.

Suresh, S/o Sombegowda, age 31 years, r/o Tavarekere

Village, Kasaba Hobli, Thoremavinhalli post, Turuvekere

Taluk, Tumkur District-572227, is acquitted of the offence

punishable under Section 138 of the Negotiable

Instruments Act, 1881.

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, at the earliest.

Sd/-

JUDGE

CBC