Karnataka High Court

Mr B Manjunatha vs Mr Boregowda on 30 August, 2023

Bench: M G Uma

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                                                         NC: 2023:KHC:31069
                                                     CRL.RP No. 939 of 2022




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 30TH DAY OF AUGUST, 2023

                                           BEFORE
                             THE HON'BLE MRS JUSTICE M G UMA
                       CRIMINAL REVISION PETITION NO. 939 OF 2022
                   BETWEEN:

                   MR. B. MANJUNATHA,
                   S/O BORA,
                   AGED ABOUT 52 YEARS,
                   KPTCL EMPLOYEE MUSS HOLALURU,
                   SHIVAMOGGA TALUK AND
                   DISTRICT - 577 201.
                                                              ...PETITIONER
                   (BY SRI. H. MALATESH, ADVOCATE)

                   AND:
Digitally signed
by HARSHITHA       MR. BOREGOWDA,
B
                   S/O BAIRAPPA,
Location: High
Court Of           AGED ABOUT 68 YEARS,
Karnataka
                   RETIRED, KPTCL EMPLOYEE,
                   NRUPATUNGA NAGARA,
                   NMC, BHADRAVATHI - 577 245.
                                                             ...RESPONDENT
                   (BY SRI. GOPAL K.B., ADVOCATE)

                         THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
                   PRAYING TO a) SET ASIDE THE JUDGMENT OF CONVICTION
                   DATED 24.03.2021 PASSED BY THE IV ADDITIONAL CIVIL
                   JUDGE AND J.M.F.C., SHIVAMOGGA IN C.C.NO.2284/2015 AND
                   ETC.,

                        THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
                   THE COURT MADE THE FOLLOWING:
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                                          NC: 2023:KHC:31069
                                      CRL.RP No. 939 of 2022




                           ORDER

The accused in CC. No.2284 of 2015 on the file of the

learned IV Additional Civil Judge and JMFC, Shivamogga,

(hereinafter referred to as 'the Trial Court' for brevity), is

impugning the judgment of conviction and order of

sentence dated 24.03.2021, convicting him for the offence

punishable under Section 138 of Negotiable Instruments

Act (for short 'NI Act'), sentencing him to pay fine of

Rs.1,55,000/-, in default to undergo simple imprisonment

for a period of 3 months, which was confirmed vide

judgment dated 27.04.2022 passed in Criminal Appeal

No.77 of 2021 on the file of the learned I Addl.Sessions

Judge, Shivamogga (hereinafter referred to as 'the First

Appellate Court' for brevity).

2. Brief facts of the case are that, the complainant

filed the private complaint in PCR No.232/2015 before the

trial court against the accused alleging the commission of

offence punishable under Section 138 of NI Act. It is

contended that the accused has borrowed a hand loan of

Rs.1,00,000/- on 02.10.2012 by executing an on demand

NC: 2023:KHC:31069 CRL.RP No. 939 of 2022

promissory note and the consideration receipt. He agreed

to repay the same with interest at 18% per annum. The

complainant repeatedly demanded the accused to repay

the loan amount. He has even issued legal notices asking

him to repay the same. But inspite of that he had not

repaid the loan amount. Finally, the accused issued the

cheque dated 25.09.2013, drawn on Syndicate Bank,

Durgigude Branch, Shivamogga Rs.1,00,000/-, towards

the legally recoverable debt. When the cheque was

presented for encashment, the same was dishonored as

there was insufficient funds in the account of the accused.

The complainant issued the legal notice on 15.10.2013

informing the accused regarding dishonor of cheque and

calling upon him to pay the cheque amount. The notice

was served upon the accused. Inspite of that he has

neither replied nor repaid the amount. Thereby, the

accused has committed the offence punishable under

Section 138 of NI Act. Accordingly, the complainant

requested the trial court to take cognizance of the offence

and to try the accused.

NC: 2023:KHC:31069 CRL.RP No. 939 of 2022

3. The trial court took cognizance of the offence

and registered CC.No.2284/2015. The accused appeared

before the Trial Court in response to the summons and

pleaded not guilty for the accusation made against him.

The complainant examined himself as PW1 and got

marked Exs.P1 to P6 in support of his contention. The

accused denied all the incriminating materials available on

record under Section 313 of Cr.P.C., but has not chosen to

lead evidence in support of his defence. The Trial Court

after taking into consideration all these materials available

on record, came to the conclusion that the complainant is

successful in proving the guilt of the accused beyond

reasonable doubt for the offence punishable under Section

138 of NI Act and passed the impugned judgment of

conviction and order of sentence as stated above.

4. Being aggrieved by the same, the accused

preferred Criminal Appeal No.77 of 2021. The First

Appellate Court on re-appreciation of the materials on

record, dismissed the appeal by confirming the impugned

NC: 2023:KHC:31069 CRL.RP No. 939 of 2022

judgment of conviction and order of sentence passed by

the Trial Court.

5. Being aggrieved by the same, the accused is

before this Court.

6. Heard Sri.H.Malatesh, learned counsel for the

revision petitioner and Sri. Gopal.K.B., learned counsel for

the respondent. Perused the materials including the Trial

Court records.

7. Learned counsel for the revision petitioner

submitted that the complainant has not proved lending of

the amount. According to the complainant, on demand

promisory note and consideration receipts were issued by

the accused, but the same were not produced before the

trial court. It is also the contention of the complainant that

he had issued the legal notices but, the copies of which

are also not produced before the trial court. Moreover, the

cheque Ex.P.1 discloses that there is a line drawn on the

signature of the accused. Under such circumstances, it

NC: 2023:KHC:31069 CRL.RP No. 939 of 2022

cannot be said that cheque in question was issued in

discharge of the legally recoverable debt. The trial court

and the first appellate court have ignored all these facts

and proceeded to convict the accused. The accused has

raised reasonable and probable defence. Therefore, he is

entitled to be acquitted. Accordingly, prays for allowing the

revision petition, in the interest of justice.

8. Per contra, learned counsel for the respondent-

complainant opposing the revision petition submitted that

there is a specific pleading regarding lending of amount of

Rs.1,00,000/- by the complainant to the accused. The

cheque Ex.P.1 was issued by the accused towards

repayment of the legally recoverable debt. When the

cheque was presented for encashment, the same was

dishonored for insufficient funds. The legal notice as per

Ex.P.4 was issued informing the accused regarding

dishonor of cheque and calling upon him to pay the

cheque amount. The notice was served on the accused as

NC: 2023:KHC:31069 CRL.RP No. 939 of 2022

per Ex.P.6. Inspite of that, the accused has neither repaid

nor replied to the notice.

9. Learned counsel further submits that even

though the complainant was subjected to cross

examination, nothing has been elicited from him to

disbelieve his version. The accused has not taken any

defence, even during the cross examination of PW1. He

has not stepped into the witness box to depose about his

contentions. Under such circumstances, even though there

are presumptions under Sections 118 and 139 of NI Act,

the accused has not rebutted the same. Therefore, the

trial court and the first appellate court have rightly

convicted the accused. There are no reasons to interfere

with the same. Hence, prays for dismissal of the petition.

10. In view of the submissions made by the learned

counsel for the revision petitioner, the point that would

arise for my consideration is:

"Whether the impugned judgment of conviction and order of sentence passed by the Trial Court, which was confirmed by the First

NC: 2023:KHC:31069 CRL.RP No. 939 of 2022

Appellate Court suffers from any infirmities and calls for interference by this Court?"

My answer to the above point is in the 'Negative' for

the following:

REASONS

11. The complainant has specifically stated in the

complaint that he had lent Rs.1,00,000/- to the accused

on 02.10.2012. The accused has agreed to repay the same

with interest. He had not repaid the same even on

repeated requests. He has issued cheque Ex.P.1 towards

legally recoverable debt. The cheque in question was

dishonored on presentation, as there was insufficient fund

in the account of the accused. Exs.P.2 and 3 are the

endorsements issued by the bank for dishonoring the

cheque. Ex.P.4 dated 15.10.2013 is the copy of the legal

notice issued by the complainant to the accused calling

upon him to pay the cheque amount. Ex.P.5 is postal

receipt. Ex.P.6 is the postal acknowledgement for having

served notice on the accused. The address mentioned in

the legal notice and the postal acknowledgement is the

NC: 2023:KHC:31069 CRL.RP No. 939 of 2022

same address which is mentioned by the petitioner in the

revision petition. Admittedly, the petitioner has not replied

to the said notice nor he has paid the cheque amount.

12. The complainant has stepped into witness box

and deposed as PW1 and produced Exs.P.1 to 6 as stated

above in support of his contention. PW1 was cross

examined by the learned counsel for the accused. Except

denying the statement of the accused, no specific defence

is suggested. It is suggested, that the complainant has

concocted the cheque Ex.P.1 and the same is denied by

PW1. Nothing has been elicited from the witness to

disbelieve his version.

13. Once the complainant is successful in placing

primary materials to prove his contention regarding

issuance of Ex.P.1 towards legally recoverable debt, the

presumption under Sections 118 and 139 of NI Act comes

into operation and the burden shifts on the accused to

rebut the presumption. The accused has not rebutted the

said presumption either during the cross examination of

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NC: 2023:KHC:31069 CRL.RP No. 939 of 2022

PW1 nor he has lead any evidence taking any defence. He

is not successful in rebutting the legal presumption. Under

such circumstances, the complainant is successful in

proving the guilt of the accused beyond reasonable doubt.

14. It is relevant to refer to the decision of the

Hon'ble Apex Court in M/s Kalamani Tex and another

Vs P Balasubramanian1, wherein, the Hon'ble Apex

Court referring to its various decisions and held in

paragraphs 15 and 17 as under:

"15. No doubt, and as correctly argued by Senior Counsel for the appellants, the presumptions raised under Sections 118 and Section 139 are rebuttable in nature. As held in M.S. Narayana Menon v. State of Kerala, which was relied upon in Basalingappa, a probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility. These principles were also affirmed in Kumar Exports, wherein it was further held that a bare denial of passing of consideration would not aid the case of accused.

(2021) 5 SCC 283

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NC: 2023:KHC:31069 CRL.RP No. 939 of 2022

17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar, where this court held that:

"36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."

(emphasis supplied)

15. In view of the above, position of law is very well

settled that the burden is on the accused to rebut the

presumption under Section 139 of NI Act. Even though

the standard of proof required is only a preponderance of

probability, the accused has never taken any defence to

probablise the same. Under such circumstances, is to be

held that the complainant is successful in proving the guilt

of the accused beyond reasonable doubt and therefore the

accused is liable for conviction.

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NC: 2023:KHC:31069 CRL.RP No. 939 of 2022

16. I have gone through the impugned judgment of

conviction and order of sentence passed by the Trial Court,

which was confirmed by the First Appellate Court. Both

the Courts have taken into consideration all these

materials on record in a proper perspective and arrived at

a right conclusion. I do not find any reason to interfere

with the same. Hence, I answer the above point in the

Negative and proceed to pass the following: