Sri. M S Upendra Gowda vs Sri. S K Nagesh
2022 Latest Caselaw 5052 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 21ST DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

       CRIMINAL REVISION PETITION NO.389/2019

BETWEEN:

SRI M.S.UPENDRA GOWDA
S/O LATE SUBBE GOWDA,
AGED ABOUT 78 YEARS,
R/AT NEAR VENUGOPAL SWAMY TEMPLE,
MUDIGERE TOWN AND TALUK,
CHIKKAMAGALURU DISTRICT-577550.           ...PETITIONER

            (BY SRI B.H.DAYANANDA, ADVOCATE)
AND:

SRI S.K.NAGESH
S/O. KUMARE GOWDA,
AGED ABOUT 55 YEARS,
SATTIGANAHALLI VILLAGE,
GOWDAHALLI POST
MUDIGERE TALUK
CHIKKAMAGALURU DISTRICT-577550.          ...RESPONDENT

               (BY SRI P.B.UMESH, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT DATED 09.03.2016 PASSED IN THE
ABOVE CASE AND ALSO SET ASIDE THE JUDGMENT DATED
16.02.2019 PASSED IN CRIMINAL APPEAL NO.55/2016 ON THE
FILE OF THE LEARNED 1ST ADDITIONAL SESSIONS JUDGE,
CHIKKAMAGALURU AND TO ACQUIT THE PETITIONER FOR THE
ALLEGED OFFENCE WHICH ARE PUNISHABLE UNDER SECTION
138 OF N.I.ACT AGAINST HIM.
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    THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

This matter is listed for admission. Heard the learned

counsel for the petitioner and the learned counsel for the

respondent.

2. The factual matrix of the case of the respondent-

complainant is that, this petitioner borrowed a sum of

Rs.2,50,000/- as hand loan in the month of September, 2012.

In discharge of legal liability, he has issued post dated cheque

dated 30.10.2012. When the same was presented, it has

returned with an endorsement 'funds insufficient' and inspite of

repeated request, the petitioner did not repay the amount.

Hence, the respondent-complainant has issued legal notice and

even on receipt of legal notice, the petitioner has not repaid the

amount and complied the demand. When the demand was not

complied, the respondent-complainant filed the complaint and

the Trial Court took cognizance for the same and secured the

petitioner.

3. The complainant, in order to prove his case,

examined himself as P.W.1 and got marked the documents as

Exs.P1 to P6. Though the P.W.1 is cross-examined, the

petitioner herein has not led any rebuttal evidence before the

Trial Court.

4. The Trial Court, after considering the material on

record, convicted the petitioner and directed to pay the

compensation of Rs.2,50,000/-. Apart from that, the Trial Court

ordered to undergo simple imprisonment for a period of 6

months and to pay a fine of Rs.1,000/-. In default of payment

of fine, to undergo simple imprisonment for another 10 days.

5. Being aggrieved by the said judgment and order of

conviction and sentence, the petitioned the appeal in

Crl.A.No.55/2016. The Appellate Court, on re-appreciation of

the evidence on record, confirmed the judgment of the Trial

Court and dismissed the appeal. Hence, the revision petition is

filed before this Court.

6. Learned counsel for the petitioner would vehemently

contend that both the Courts have committed an error in not

considering the defence of the petitioner, though the petitioner

took a specific defence that cheque was given as security and it

is also elicited from the mouth of P.W.1 that transaction is in

respect of timber business, the Trial Court committed an error in

drawing presumption under Section 139 of Negotiable

Instruments Act ('N.I. Act' for short). The Appellate Court,

committed error in not considering the material on record. The

Appellate Court has also invoked Sections 118 and 139 of N.I.

Act regarding presumption in favour of the complainant i.e., the

holder of the cheque and cheque has not been disputed. The

counsel would vehemently contend that, unless the complainant

makes out his case, the presumption does not arise and the

respondent-complainant also admitted in the cross-examination

that, there was a transaction in respect of timber business.

Hence, the order passed by the Trial Court and also the

Appellate Court is perverse as against the material on record.

7. Per contra, learned counsel for the respondent would

submit that issuance of cheque and the signature on the same is

admitted both the Courts have rightly drawn the presumption

under Sections 119 and 138 of N.I. Act. The petitioner also not

led any evidence to prove his defence that he has given the

cheque for security. When there is no rebuttal evidence, this

Court cannot find fault with the findings of the Trial Court and

the Appellate Court.

8. Having heard the respective counsel and also on

perusal of the material on record, the very case of the

respondent-complainant is that the petitioner had received an

amount of Rs.2,50,000/- as hand loan and he also issued post

dated cheque and when the same was presented, it has returned

with an endorsement 'funds insufficient'. The fact that notice is

issued is not in dispute. The counsel would submit that, in the

cross-examination of P.W.1, he admits that reply was given but

the same is not placed before the Trial Court. On perusal of the

documents which have been marked, it is seen that no reply

notice is marked before the Trial Court and only legal notice and

postal acknowledgement are marked as Exs.P4 and P6

respectively.

9. The main contention of the revision petitioner before

the Trial Court is that cheque was issued towards security and

the fact that issuance of Ex.P1-cheque and its signature is not in

dispute. When such being the material on record, when the

petitioner has not disputed the issuance of cheque and also his

signature, there is a presumption in favour of the holder of

cheque under Sections 118 and 139 of N.I. Act and no doubt,

the presumptions are rebuttal presumptions, the same has to be

rebutted. In order to rebut the presumption, when the petitioner

took the specific defence that cheque was given as security,

ought to have led evidence before the Trial Court and the same

has not been done.

10. The Apex Court also in the judgment in the case of

BIR SINGH VS. MUKESH KUMAR reported in (2019) 4 SCC

197 has held that raising presumption of law that cheque duly

drawn was in discharge of debt or liability. However,

presumption is rebuttable and onus lies on drawer to rebut it by

adducing cogent evidence to the contrary. The Apex Court also

held that presumption that cheque, duly signed and voluntarily

made over to payee, was in discharge of debt or liability arises

irrespective of whether cheque was post-dated or blank cheque

for filling by payer or any other person, in absence of evidence of

undue influence or coercion, the Court has to draw the

presumption.

11. The other contention of the learned counsel for the

petitioner is that the Trial Court committed an error in imposing

sentence apart from directing to pay the fine amount and the

same has to be set aside. The said contention also cannot be

accepted. The Apex Court, in Bir Singh's case has also held

that fine by way of compensation, provision both punitive as well

as compensatory and restitutive. It also provides for

enforcement of civil liability for realization of cheque amount.

12. When such being the principles laid down in the

judgment of the Apex Court, both fine as well as imprisonment is

punitive, compensatory and restitutive. When there is no

rebuttal evidence and once the cheque and signature is admitted

and not complied with the demand and rebuttal evidence is also

not led before the Trial Court, the very contention that the

findings of the Trial Court is perverse and capricious cannot be

accepted. Both the Courts have taken note of evidence of P.W.1

and documentary evidence. Apart from that, the Trial Court

invoked presumption under Sections 118 and 139 of N.I. Act,

since there is no rebuttal evidence before the Trial Court.

Hence, there is no merit in the petition to admit the same and

the findings of the Trial Court as well as the Appellate Court is

based on the material on record. There are no grounds to admit

the revision.

13. In view of the discussions made above, I pass the

following:

ORDER

(i) The Criminal Revision Petition is dismissed.

(ii) The amount in deposit is ordered to be paid to the respondent on proper identification.

Sd/-

JUDGE

ST