Karnataka High Court
Sri.Prakash S/O Kariyappa ... vs Sri.Ravi Torasa Miskini on 25 July, 2023
Bench: Anil B Katti
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CRL.A No. 100121 of 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100121 OF 2020
BETWEEN:
SRI. PRAKASH S/O KARIYAPPA BANNIHALLI,
AGE.52 YEARS, OCC. ADVOCATE,
R/O. TEJASWINAGAR,
DHARWAD-580008. ...APPELLANT
(BY SRI. SANTSOH B. ALLIGAWAD, ADV.)
AND:
Digitally
signed by
ANNAPURNA
ANNAPURNA CHINNAPPA
SRI.RAVI TORASA MISKINI,
CHINNAPPA DANDAGAL
DANDAGAL AGE. MAJOR, OCC. PRIVATE SERVICE,
Date:
2023.07.26
11:22:44 -0700
R/O. NEW MISKIN STUDIO,
OPPOSITE TO OLD BUS STAND,
DHARWAD-580008. ...RESPONDENT
(BY SRI. V.G. KATTIMANI, ADV.)
***
THIS CRIMINAL APPEAL IS FILED U/S 378 (4) OF CR.P.C.,
PRAYING TO CALL FOR RECORDS IN C.C.NO.395/2018 III ADDL.
CIVIL JUDGE AND JMFC, DHARWAD AND SET ASIDE THE JUDGMENT
DATED 04.01.2020 PASSED BY THE III ADDL. CIVIL JUDGE AND
JMFC, DHARWAD IN C.C.NO.395/2018 AND CONVICT THE ACCUSED /
RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTION 138
OF THE NEGOTIABLE INSTRUMENTS ACT, AND COMPENSATE THE
PETITIONER / COMPLAINANT WITH DOUBLE THE CHEQUE AMOUNT.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION AND THE
SAME HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
14.07.2023, THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
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CRL.A No. 100121 of 2020
JUDGMENT
Appellant/complainant feeling aggrieved by judgment of
trail Court on the file of III Addl. and JMFC, Dharwad, in
C.C.No.395/2018 dated 04.01.2020 preferred this appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of complainant
can be stated in nutshell to the effect that complainant and
accused are known to each other. Accused asked for financial
help of Rs.5 lakhs from complainant and complainant paid the
money of Rs.5 lakhs in July, 2006. Accused assured to make
repayment of the said amount within a period of six months.
Accused in discharge of lawful debt has issued cheque bearing
No..794507 drawn on UCO Bank, Dharwad branch, dated
20.03.2018. On presentation of the said cheque through the
banker of complainant/State Bank of India on 22.03.2018, the
same was returned with endorsement 'account closed'.
Complainant issued demand notice dated 06.04.2018. Accused
inspite of due service of notice, has not paid the amount as
called upon in the notice. Therefore, complaint is filed on
05.05.2018 for taking appropriate legal action against accused.
CRL.A No. 100121 of 2020
4. In response to summons, accused appeared through
counsel and contested the claim of complainant. Complainant in
order to prove his case relied on the evidence of PW-1 and the
documents Ex.P.1 to Ex.P.6.
5. On closure of the evidence of complainant,
statement of accused under Section 313 of Cr.P.C. came to be
recorded. Accused denied all incriminating material evidence
appearing against him and claimed that false case is filed.
Accused relied on his own evidence DW-1 and the documents
Ex.D.1 to Ex.D.10. The trial Court after appreciation of evidence
on record acquitted the accused from the accusation levelled
against him.
6. Appellant/complainant challenged the said judgment
of acquittal passed by trial Court contending that trial Court has
committed serious error in relying on the evidence of DW-1 and
Ex.D.1 and Ex.D.2 as rebuttal evidence to displace the initial
presumption available in favour of complainant. When the
issuance of cheque with signature of accused is admitted then
necessary presumption in terms of Sections 118 and 139 of the
Negotiable Instruments Act (for short 'the N.I.Act') have to be
drawn. The accused has not replied to the demand notice and
CRL.A No. 100121 of 2020
not made any basic foundation even on his appearance
regarding the defence taken in the cross-examination of PW-1.
Therefore, the trial Court has committed serious error in
believing the defence of accused that cheques were taken by his
brother Narayan Torasi Miskin by force under threat and one of
the cheques has been misused by the complainant to file this
case. This defence of accused is without there being any basis
and same cannot be accepted as rebuttal evidence to displace
the presumption in favour of complainant. The approach and
appreciation of oral and documentary evidence is contrary to law
and evidence on record. Therefore, prayed for allowing the
appeal and to set aside the judgment of trial Court.
Consequently, to convict the accused for the offence punishable
under Section 138 of N.I.Act.
7. In response to notice of appeal, respondent
appeared through learned counsel.
8. Heard the arguments of both sides.
9. On careful perusal of oral and documentary evidence
placed on record by complainant, it would go to show that
accused has issued cheque in question Ex.P.1 bearing
No.794507 dated 20.03.2018 drawn on UCO Bank, Dharwad
CRL.A No. 100121 of 2020
branch, bearing his signature. The said cheque was presented
by complainant through his banker/State Bank of India,
Hosayellapur branch, Dharwad and the cheque was returned
with an endorsement 'account closed' Ex.P.2. Complainant
issued demand notice Ex.P.3 and the postal receipt is at Ex.P.4.
The said demand notice is duly served to the accused vide
acknowledgement Ex.P.5. Accused has given reply Ex.P.6. The
evidence of PW-1 and the above referred documents would go
show that accused issued cheque Ex.P.1 for lawful discharge of
debt. On presentation of the said cheque for collection by
complainant, same was dishonoured as 'account closed' vide
bank endorsement Ex.P.2. The demand notice Ex.P.3 is duly
served to the accused vide acknowledgement Ex.P.5 and the
accused replied to the notice as per Ex.P.6 and proved the legal
requirement in terms of Section 138 of the N.I.Act. Accused do
not dispute issuance of cheque with his signature Ex.P.1.
Therefore, necessary presumption in terms of Sections 118 and
139 of the N. I. Act will have to be drawn and it will have to be
held that cheque in question Ex.P.1 is issued by accused for
lawful discharge of debt.
10. Learned counsel for appellant relied on the judgment
of Hon'ble Apex Court in UTTAM RAM VS. DEVINDER SINGH
CRL.A No. 100121 of 2020
HUDAN AND ANOTHER [(2019) 10 SCC 287] wherein it has
been observed and held that:
" Presumption mandated by S. 139 does indeed
include the existence of a legally enforceable debt or
liability- Bare denial of the passing of the
consideration and existence of debt, is not enough to
rebut the presumption -To rebut the statutory
presumption an accused is not expected to prove his
defence beyond reasonable doubt as is expected of
the complainant in a criminal trial- Rather, something
which is probable has to be brought on record for
getting the burden of proof shifted to the complainant-
To disprove the presumptions, the accused should
bring on record such facts and circumstances, upon
consideration of which, the court may either believe
that the consideration and debt did not exist or their
non-existence was so probable that a prudent man
would under the circumstances of the case, act upon
the plea that they did not exist- Apart from adducing
direct evidence to prove that the consideration did not
exist, or that he had not incurred any debt or liability,
the accused may also rely upon circumstantial
evidence and if the circumstances so relied upon are
compelling, the burden may likewise shift again on to
the complainant- Accused may also rely upon
presumptions of fact, for instance, those mentioned in
S. 114 of the Evidence Act to rebut the presumptions
arising under Ss. 118 and 139 of the NI Act".
CRL.A No. 100121 of 2020
11. On the same analogy, it is useful to refer the
judgment of Hon'ble Apex Court in BASALINGAPPA VS.
MUDIBASAPPA reported in 2019 Cr. R. 639 (SC) wherein it has
been observed and held that:
"Presumption under Section 139 is a
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 led 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
persuasive burden".
In view of the principles enunciated in both
aforementioned judgments, it is evident that accused to
probabilize his defence can rely on his own evidence or also can
rely on material submitted by complainant. It is not necessary
for the accused to step into the witness box to probabilize his
defence. It is now upto the accused to prove by rebuttal
CRL.A No. 100121 of 2020
evidence either by bringing material evidence in the cross-
examination of PW-1 or by producing independent rebuttal
evidence. In the present case, accused relied on his own
evidence as DW-1 and documents Ex.D.1 to Ex.D.10.
12. The accused has taken the following specific
defences:
i) There is inconsistency as to when the loan
amount was paid,
ii) PW-1 has not obtained any separate receipts
for having paid the money of Rs.5 lakhs,
iii) Ex.D.1 is dated 28.04.2016 and the money is
said to have been advanced in the month of July,
2016.
13. Learned counsel for revision petitioner with respect
to the first contention that there is inconsistency as to when the
loan was given, relies on the co-ordinate bench judgment of this
Court in B.RAJE GOWDA VS. N.SHIVAPRAKASH [(2019
Cr.R.133 (KANT)]. The principle of law laid down in the said
decision is that complainant has to discharge his burden of proof
to establish existence of legally enforceable debt or liability
CRL.A No. 100121 of 2020
against accused. In the said case, there was sufficient rebuttal
evidence to displace the initial presumption available in favour of
the complainant and the non-mentioning of the dates of loan
was examined in the light of rebuttal evidence. Therefore, the
said decision has no application to the facts of the present case.
Therefore, the said inconsistency of advancing loan as averred in
the complaint in the month of July, 2016 and the one stated in
the cross-examination of PW-1 as 22.06.2016 cannot be a valid
ground to discredit the evidence of PW-1 and issuance of cheque
Ex.P.1 for lawful discharge of debt.
14. The next contention is that complainant has not
obtained any separate receipts for having advanced loan of Rs.5
lakhs. It is true that no any separate receipt is obtained by
complainant for having advanced the amount of Rs.5 lakhs to
the accused. There is no legal requirement to obtain separate
receipt for the amount covered under the cheque as per Ex.P.1.
In terms of Section 118 of the N. I. Act when the issuance of
cheque with the signature of accused is held to be proved, then
presumption in terms of Section 118 regarding consideration,
date, time of acceptance, time of transfer, order of
indorsements and as to that holder is a holder in due course has
to be drawn. The defence has not brought any material
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CRL.A No. 100121 of 2020
evidence in the cross-examination of PW-1 to rebut the
presumption with regard to passing of consideration in terms of
Section 118 (a) of N. I. Act. Therefore, the second contention of
learned counsel for revision petitioner also cannot be legally
sustained.
15. The last contention of accused is that the cheque in
question Ex.P.1 was misused by the complainant which was
forcibly taken by the brother of accused under threat. In order
to prove the said defence, accused relied upon his own evidence
DW-1 and the documents Ex.D.1 to Ex.D.10. DW-1 has
deposed to the effect that his brother Narayan Torasi Miskin
under threat obtained signature of accused on blank cheques
under threat and out of the said cheques, one cheque was
misused by the complainant to file this false case. Accused
relied on Ex.D.1 dated 28.04.2016 for having filed the complaint
against his brother before Commissioner of Hubballi-Dharwad,
Navanagar, Hubballi, and another complaint dated 02.06.2017
addressed to Commissioner of Police, Hubballi-Dharwad,
Navanagar, Hubballi, alleging that PSI of town police station has
not taken any action against accused. These two documents are
essentially between the accused and his brother regarding the
money transaction. In that process, accused alleges that his
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CRL.A No. 100121 of 2020
brother under threat obtained signature of accused on many
blank cheques. However, the accused has not taken any further
action either by filing private complaint before the Court or
giving written instructions to the bank alleging that his brother
has taken blank signed cheques by force and not to honour the
said cheques. Accused has also not offered any explanation as
to how accused came in possession of cheque in question
Ex.P.1. What was the occasion for complainant to get one of the
signed blank cheque from his brother which accused alleges that
his brother has taken blank signed cheques from him. The
particulars of the cheque and the other required evidence to
substantiate his defence has not been produced by the accused.
Therefore, in the absence of any such evidence on record, the
contention of accused that complainant has misused one of the
signed blank cheques taken by his brother to file this false case
cannot be legally sustained. The trial Court without assigning
any valid reason has simply accepted the defence of accused
and Ex.D.1 and Ex.D.2 and description in referring the month on
which loan was advanced has proceeded to hold that rebuttal
evidence placed on record by accused is sufficient to displace
the initial presumption available in favour of complainant. In
view of the reasons recorded as above, the finding recorded by
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CRL.A No. 100121 of 2020
trial Court based on the rebuttal evidence of accused cannot be
legally sustained.
16. When once the issuance of cheque with signature of
accused has been held to be proved and failure of accused to
displace the presumption available in favour of complainant then
it will have to be held that complainant has proved the offence
under Section 138 of N.I.Act. The contrary finding recorded by
the trial Court cannot be legally sustained.
17. Now, coming to the question of sentence, the cheque
amount as per Ex.P.1 is Rs.5 lakhs and it is of the year 2018
and accused has withheld the money due to the complainant
without there being any legal justification. Looking to the facts
and circumstances of the case and the evidence on record, in
my opinion, if accused is sentenced to pay fine amount of
Rs.5,10,000/-, in default of payment of fine, sentenced to
undergo simple imprisonment for six months, is ordered will
meet the ends of justice. Consequently, proceed to pass the
following:
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CRL.A No. 100121 of 2020
ORDER
Appeal filed by complainant is hereby allowed.
The judgment of the trial Court on the file of III Addl. Civil
Judge and JMFC, Dharwad, in C.C.No.395/2018 dated
04.01.2020 is hereby set aside.
Accused is sentenced to pay fine of Rs.5,10,000/- and in
default to pay fine amount, to undergo simple imprisonment for
six months.
In exercise of powers under Section 357 of Cr.P.C., out of
the fine amount, a sum of Rs.5 lakhs is ordered to be paid to the
complainant as compensation and the remaining fine amount of
Rs.10,000/- is defrayed as litigation expenses.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
