Karnataka High Court

Afzal vs Suresh on 12 December, 2023

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                                                      NC: 2023:KHC:45177
                                                 CRL.RP No. 787 of 2017




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                 DATED THIS THE 12TH DAY OF DECEMBER, 2023

                                     BEFORE
                     THE HON'BLE MR JUSTICE ANIL B KATTI
                 CRIMINAL REVISION PETITION NO. 787 OF 2017
             BETWEEN:

             AFZAL,
             S/O LATE ABDUL BAYRE,
             AGED ABOUT 28 YEARS,
             R/AT INDIRANAGARA,
             BILOGOLA VILLAGE,
             HESGAL POST, KASABA HOBLI,
Digitally    MUDIGERE TALUK,
signed by    CHIKKAMAGALUR DISTRICT - 577 101.
SUMITHRA R
                                                           ...PETITIONER
Location:
HIGH         (BY SRI. GIRISH B BALADARE .,ADVOCATE)
COURT OF
KARNATAKA    AND:

             SURESH,
             S/O MUKUNDA,
             AGED ABOUT 27 YEARS,
             R/AT HALEMUDIGERE VILLAGE AND POST,
             KASABA HOBLI, MUDIGERE TALUK,
             CHIKKAMAGALUR DISTRICT - 577 101.
                                                          ...RESPONDENT
             (BY SRI. K. SURYAPRAKASH RAO, ADVOCATE)

                  THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
             PRAYING TO SET ASIDE THE JUDGMENT DATED 17.03.2016
             PASSED BY THE PRL. CIVIL JUDGE AND J.M.F.C., MUDIGERE IN
             C.C.NO.526/2013 BY CONVICTING THE PETITIONER AND THE
             SAME ORDER WAS CONFIRMED BY THE I ADDL. SESSIONS
             AND SPL. JUDGE, CHIKKAMAGALURU BY DISMISSING THE
             APPEAL FILED BY THE PETITIONER, THE JUDGMENT DATED
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                                          NC: 2023:KHC:45177
                                      CRL.RP No. 787 of 2017




04.07.2017 IN CRL.A.NO.63/2016 AND THE PETITIONER TO BE
ACQUITTED FOR THE OFFENCE ALLEGED AGAINST HIM.

     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

Revision petitioner/accused feeling aggrieved by the

judgment of I Appellate Court on the file of I Additional

Sessions and Special Judge, Chikkamagaluru in

Crl.A.No.63/2016 dated 04.07.2017 in confirming the

judgment of trial Court on the file of the Principal Civil

Judge and JMFC Mudigere in C.C.No.526/2013 dated

17.03.2016, preferred this revision petition.

2. Parties to the revision petition are referred with

their ranks as assigned in the trial Court for the sake of

convenience.

3. Heard the arguments on both sides.

4. After hearing the arguments and on perusal of

the trial Court records, so also the judgment of both the

Court below, the following points arise for consideration:

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1) Whether the impugned judgment of the I Appellate Court under revision confirming the judgment of trial Court for the offence punishable under Section 138 of N.I.Act, is perverse, capricious and legally not sustainable ?

2) Whether interference of this Court is required ?

5. On careful perusal of the oral and documentary

evidence placed on record by the complainant, it would go

to show that accused has borrowed an amount of

Rs.6,50,000/- from the complainant on 02.10.2012 for his

urgent necessity and issued post dated cheque bearing

No.245308 dated 15.02.2013 for a sum of Rs.6,50,000/-

drawn on Vijaya Bank, Mudigere Branch-Ex.P.1.

Complainant presented said cheque through his banker

and same was dishonored as "funds insufficient" vide

Bank endorsement Ex.P2 dated 15.02.2013. Complainant

issued demand notice dated 08.03.2013 Ex.P3 and postal

receipt Ex.P4. Demand notice is duly served to the

accused vide postal acknowledgment Ex.P5. Accused has

replied to the demand notice on 25.03.2013 Ex.P6 and

denied that he borrowed money of Rs.6,50,000/- from the

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complainant. If the above referred documents are carefully

perused and appreciated with the evidence of

complainant-P.W.1, it would go to show that complainant

has complied all the necessary legal requirements in terms

of Section 138(a) to (c) of Negotiable Instruments Act,

1881 (hereinafter for brevity referred as "N.I.Act").

Accused has not denied his signature on Ex.P1 and he

maintained account in Vijaya Bank. When issuance of

cheque is either admitted or proved then statutory

presumption in terms of Section 118 and 139 of N.I.Act

will have to be drawn.

6. On perusal of the cross-examination of P.W.1, it

would go to show that, accused has raised defence that

cheque in question at Ex.P.1 was not issued to

complainant for lawful discharge of debt, but it was issued

to one Biligegowda who in turn has given the same to Ravi

and from Ravi complainant got the cheque of accused and

misused the same to file the complaint. It is the duty of

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accused to probablise the said defence by evidence on

record.

7. In this context it is profitable to refer the

judgment of Hon'ble Apex Court in Basalingappa Vs.

Mudibasappa reported in 2019 Cr.R. page No. 639

(SC), wherein it has been observed and held that:

"Presumption under Section 139 is rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence laid by him or accused can also rely on materials submitted by complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from materials brought on record by parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Section 139 imposed an evidentiary burden and not a presumptive burden".

8. The Hon'ble Apex Court in the latest decision in

Rajesh Jain Vs. Ajay Singh reported in 2023 SCC

online 1275, wherein it has been held that burden of

placing rebuttal evidence to displace the statutory

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presumption available in favour of complainant is on

accused.

In view of the principles enunciated in both the

aforementioned judgment of Hon'ble Apex Court, it is

evident that the accused to probabilise his defence can

rely on his own evidence or also can rely on the materials

submitted by complainant. It is not necessary for the

accused to step into witness box to probabilise his

defence.

9. In the present case, the accused has not led

any of his independent evidence to probablise the above

referred defence. On the contrary accused has chosen to

rely on the material produced by the complainant.

Whether the material evidence brought on record in the

cross-examination of P.W.1 would be sufficient rebuttal

evidence to displace the statutory presumption available in

favour of the complainant or not is to be decided.

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10. It has been suggested in the cross-examination

of P.W.1 that complainant and accused during the year

2013 were doing joint business of selling ginger and

pepper and in this regard complainant has filed complaint

against the accused in Banakal Police Station, wherein the

matter was settled for paying Rs.1,50,000/-. Accused

was in due of Rs.50,000/- to one Biligegowda and had

issued two cheques. Accused has repaid an amount of

Rs.40,000/- and there was balance of Rs.10,000/-. The

said Biligegowda has returned one cheque, since

remaining Rs.10,000/- was not paid and he passed the

said cheque to one Ravi of Chikkamagaluru. Complainant

has collected the said cheque from Ravi of Chikkamagaluru

to file this false complaint. The said suggestion put forth

to P.W1 has been denied by the complainant. Accused has

not produced any documents with regard to the

transaction between himself and one Biligegowda and he

has given two signed cheques to him. Accused had also

not produced any document to show that in what way Ravi

of Chikkamagaluru was concerned to the transaction

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between accused and Biligegowda who alleged to have

come in possession of said cheque and from whom

complainant had collected the same to file false case.

Accused has not entered the witness box and led

evidence, so also produced any documents in support of

such defence. Further for the reasons best known to

accused other than putting suggestions to P.W.1 in the

cross-examination which has been denied by him has not

produced any documents to substantiate the above said

defence of accused. Therefore, material brought on record

in the cross-examination of P.W.1 is totally insufficient to

hold that accused has probablised his defence.

11. When once issuance of cheque is admitted or

proved by the complainant out of evidence of P.W.1 and

documents at Exs.P1 to P5 then statutory presumption in

terms of Section 118 and 139 of N.I.Act., will have to be

drawn in the absence of any rebuttal evidence of accused

or the rebuttal evidence led by accused cannot be legally

sustained then the statutory presumption will continue to

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operate in favour of complainant. The Court below have

rightly appreciated the oral and documentary evidence

placed on record and justified in holding that complainant

has proved that accused has committed an offence

punishable under Section 138 of N.I.Act. The said findings

recorded by the Court below are based on regal evidence

on record.

12. Now coming to the question of imposition of

sentence. The trial Court has imposed sentence of simple

imprisonment of six months and fine of Rs.1,000/- for the

offence under Section 138 of N.I.Act., further directed the

accused to pay compensation of Rs.6,50,000/- in terms of

Section 357 of Cr.P.C. The said findings of Trial Court has

been affirmed by the I Appellate Court by judgment dated

04.07.2017. The learned counsel for revision

petitioner/accused has argued that, the sentence of

imprisonment of six months is totally unwarranted looking

to the facts and circumstances of the case. The

complainant and accused even according to the

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complainant are friends and no commercial transaction is

involved in this case. In support of such contention

reliance is placed on the judgment of Co-ordinate Bench of

this Court in the case of Ajay Gupta S/o Ram Avad

Gupta vs. Banakar Manjunath S/o Bheemeppa in

Crl.RP.No.100050/2020 dated 26.02.2021 wherein, this

Court has observed and held that the imposition of

sentence and fine is little bit harsh and disproportionate to

the offence committed by the accused.

13. In this context of the matter, it is useful to refer

the judgment of Hon'ble Apex Court in the case of

Somnath Sarkar vs. Utpal Basu Mallick and another

reported in (2013) 16 SCC 465 wherein, the Hon'ble

Apex Court has held that:

"14. This Court also took note of the number of cases involving dishonour of cheques choking the criminal justice system of this country, especially at the level of the Magisterial Courts, and held that dishonour of cheque being a regulatory offence, aimed at ensuring the reliability of negotiable instruments, the provision for imprisonment extending up to two years was only intended

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to ensure quick recovery of the amount payable under the instrument. The following passages from the decision are in this regard apposite: (Damodar S. Prabhu case, SCC p.666 paras 4-5)

"4. ... It is quite evident that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a 'fine which may extend to twice the amount of the cheque' serves a compensatory purpose. What must be remembered is that the dishonour of a cheque can be best described as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the private parties involved in commercial transactions.

5. Invariably, the provision of a strong criminal remedy has encouraged the institution of a large number of cases that are relatable to the offence contemplated by Section 138 of the Act. So much so, that at present a disproportionately large number of cases involving the dishonour of cheques is choking our criminal justice system, especially at the level of Magistrates' Courts. As per the 213th Report of the Law Commission of India, more than 38 lakhs cheque bouncing cases were pending before various courts in the country as of October 2008. This is putting an unprecedented strain on our judicial system."

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The Hon'ble Apex Court having so observed, the

order of sentence set aside by the High Court remained

undisturbed and imposed the sentence of payment of fine

with default sentence.

14. In the present case also looking to the facts and

circumstances of the case and evidence on record, the

imposition of sentence of simple imprisonment for six

months in the light of aforementioned judgment of Hon'ble

Apex Court is to harsh and needs to be interfered by this

Court. Consequently, proceed to pass the following:

ORDER

The revision petition filed by the revision petitioner is

hereby partly allowed.

The judgment of the I Appellate Court on the file of I

Additional Sessions and Special Judge at Chikkamagaluru

in Crl.A.No.63/2016 dated 04.07.2017 in confirming the

judgment of trial Court on the file Principal Civil Judge and

JMFC, Mudigere, in C.C.No.526/2013 dated 17.03.2016 is

ordered to be modified as under:

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Accused is sentenced to pay a fine of Rs.6,55,000/-

in default of payment of fine amount shall undergo simple

imprisonment for a period of six months for the offence

under Section 138 of N.I.Act.