Padmanabha vs Gopalakrishna
2023 Latest Caselaw 4989 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF JULY, 2023

                      BEFORE

THE HON'BLE MR. JUSTICE RAMACHANDRA D.HUDDAR

   CRIMINAL REVISION PETITION No.1071/2015


BETWEEN:

  PADMANABHA
  S/O.LATE. NARAYANA MULYA
  AGED ABOUT 43 YEARS
  R/AT. VIDAYANAGARA HOUSE,
  MUDIPU POST, KAIRANGALA,
  NARINGANA VILLAGE, BANTWAL TALUK,
  D.K. DISTRICT- 574 219.
                                      ...PETITIONER

(BY SRI.G.RAVISHANKAR SHASTRY, ADVOCATE)

AND:

  GOPALAKRISHNA
  S/O. SEETHARAMA ACHARYA,
  AGED ABOUT 45 YEARS,
  R/AT VRS COMPOUND,
  NETTARKERE, POST VITTAL,
  BANTWAL TALUK,
  D.K.DISTRICT - 574 243.

                                  ...RESPONDENT

(BY SRI.ISMAIL, ADVOCATE)

    THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 AND 401 OF CR.P.C., PRAYING TO
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SET ASIDE THE JUDGMENT AND ORDER DATED
08.07.2015 IN CRIMINAL APPEAL NO. 12/2012 PASSED BY
THE COURT OF THE III ADDL. DISTRICT & SESSIONS
JUDGE, D.K., MANGALORE AND THE JUDGEMENT DATED
30.12.2011 IN CC NO. 61/2010 PASSED BY THE COURT OF
THE SENIOR CIVIL JUDGE & JMFC., BANTWAL, D.K. AND
THIS REVISION PETITION BE ALLOWED BY ACQUITTING
THE PETITIONER FOR THE OFFENCES PUNISHABLE UNDER
SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT IN
THE INTEREST OF JUSTICE.

    THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 23.06.2023 COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                        ORDER

The revision petitioner being aggrieved and

dissatisfied by the concurrent judgments of conviction and

sentence passed against him in CC No. 61/2010 passed by

the Court of the Senior Civil Judge & JMFC., Bantwal, D.K.,

affirmed by the III Addl. District & Sessions Judge, D.K.,

Mangalore vide Judgment dated 30.12.2011, has preferred

this revision.

2. Parties to this revision are referred to as per their

rank before the trial court for convenience.

3. Brief facts leading up to this revision are as under:

complainant and accused were known to each other. In the

first week of January 2007, accused borrowed a sum of

Rs.38,000/- to meet his urgent needs with an assurance to

repay the same within thirty days to together with interest

at the rate of 15% p.a. It is the case of the complainant

that, he advanced the said loan amount and in the first

week of February 2007, he requested the accused to repay

the said amount. In discharge of the said debt, accused

issued two cheques dated 15.2.2007 for Rs.19,000/- each

drawn on Vijaya Bank, Vitla Branch. Complainant

presented the said cheques for encashment. But, they

were dishonoured for want of "insufficient funds" in the

account of the accused as per memo dated 4.6.2007

issued by the Bank. Once again, the complainant

presented the said cheques but, they were again

dishonoured. Therefore, complainant got issued a statutory

notice on 7.6.2007 calling upon the accused to pay the

cheque amount. The said notice was duly served on the

accused on 9.6.2007 but, he has issued a false reply on

14.6.2007. Therefore, complainant presented the

complaint under Sec.200 of Cr.PC against the accused for

the offence punishable under Section.138 of the NI Act.

4. After filing the complaint, the trial Court took

cognizance of the offence, recorded the sworn statement

of the complainant and issued process against the

accused. Pursuant to the summons, accused appeared

before the trial Magistrate and was enlarged on bail.

Thereafter substance of accusation was recorded against

accused for the offence under Sec.138 of NI Act. Accused

pleaded not guilty and claimed to be tried. To prove the

guilt of the accused, complainant himself was examined as

PW.1 and also examined one more witness by name

Sanjeeva Billava as PW.2 and got marked Ex.P1 to P21

closed complainant's evidence.

5. Thereafter, the accused was questioned under

Sec.313 of Cr.PC so as to enable him to answer the

incriminating circumstances appearing in the evidence of

the complaint. He denied his complicity in the crime and

did not choose lead any defence evidence on his behalf.

6. The learned trial Magistrate on hearing found the

accused guilty for the offences punishable under Sec.138

of NI Act and passed the judgment of conviction and

sentence as under:

"The accused is found guilty and convicted under Section 255(2) of Cr.P.C for the offence punishable under Section 138 of N.I.Act. Further, the accused is sentenced to pay a fine of Rs.54,500/-. Failing wich he shall undergo simple imprisonment for 6 months. The entire amount if recovered shall be paid to the complainant as compensation under Section 257(3) of Cr.P.C."

7. This judgment of conviction and sentence was

challenged by the accused by preferring an appeal before

the III Addl.Dist.and Sessions Judge, D.K. Mangaluru

12/2012. The learned appellate Court after hearing the

arguments of both the side, dismissed the appeal upholding

the judgment of conviction and sentence passed by the trial

court.

Submissions of Counsel for petitioner/Accused:

8. The learned counsel for the revision-

petitioner/accused has vehemently argued that both the

Courts did not consider the material alteration on the

cheque though it is supported by evidence. He submitted

that both the courts have discarded the defense observing

that such an alteration is not a material alteration. He

submits that, there is no proper appreciation of the

evidence placed on record by the defense.

Submissions of Counsel for Respondents/Complainants:

9. The learned counsel for the

respondent/complainant would argue that both the Courts

have rightly come to the conclusion that once the cheque

was issued, it is deemed that it is issued for payment of

legally enforceable debt. Accused admits his signature and

also date so mentioned on the cheque. Therefore, as there

is clear and acceptable evidence, both the courts have

rightly held the accused guilty. No interference is required.

10. The learned counsel for the revision petitioner

relied upon the judgment of the Kerala High Court in

Ramachandran vs. K. Dineshan and another1 so also

judgment of a co-ordinate Bench of this Court between

Herman Castelino vs. Suresh Kurva.2

11. A short question for consideration is, whether the

alteration so found on the cheque is a material alteration

that renders the negotiable instruments void against the

revision petitioner/accused.

12. It is a complaint being filed by the complainant

alleging that accused borrowed a sum of Rs.38,000/- to

meet his urgent necessity from the complainant. He

assured to repay the same within 30 days along with the

interest at the rate of 15% p.a. As he did not return,

therefore, at the demand of the complainant, to repay the

debt, towards the said payment accused issued two

cheques bearing no.425303 and 425035 dated 15.2.2007

(2005 CRL.LJ 1237)

LAWS KR 2022 - 6 -1198.

drawn on VijayaBank, Vitla Branch for a sum of

Rs.19,000/- each in discharge of his liability. When the

said cheques were presented for encashment, they were

dishonoured with an endorsement `insufficient funds' as

per the memo dated 4.6.2007 issued by the bank.

Therefore, complainant issued a notice to the accused and

called upon him to pay the cheque amount within fifteen

days from the date of receipt of the notice. But, accused

did not pay. Therefore, complaint was filed.

13. To prove the aforesaid facts, complainant has

produced cheque as Ex.P1 and P2, bank memo Ex.P3,

notice as per ex.p4, postal receipt as per Ex.P5 and

communication from post office Ex.p 6. to this notice. The

accused has issued a reply as per Ex.P7 dated 14,7,2007

denying the entire contents of the notice.

14. The accused has questioned the very financial

capacity of the complainant to advance the money.

According to him, complainant has no such financial

capacity. To substantiate the said fact, PW.1 complainant

has reiterated the complaint assertions and examined

PW.2 the bank official working then, about dishonour of

cheque. He states throughout his evidence that he is a

goldsmith by profession earning Rs.12,000/- per month. In

addition to that, his father is possessing rented premises

and he is collecting the rent. To prove the same he has

produced the photocopies of the rent agreements which

are marked as Ex.P8 to P19. While marking these

documents, no little finger was raised by the accused. The

trend of cross-examination do reveal that the defence of

the accused is of total denial. For the first time during the

course of arguments before the trial court, accused has

taken up a defence of alteration of the date in Ex.P2. It is

argued that there is a material alteration in Ex.P2 and on a

single day, the accused would not have issued two

cheques for Rs.19,000 each. The complainant has misused

the said cheques and has materially altered therefore, no

case is made out by the complainant. But, the learned trial

Court as well as first appellate court have disbelieved the

said defence of the accused.

15. So far as offence under sec.138 of NI Act is

concerned, in order to bring application of Sec.138 of the

NI Act, the complaint must show:

(1) that the cheque was issued (2) The same was presented (3) It was dishonoured on presentation (4) A notice in terms of the provisions was served on the person sought to be made liable.

(5) Despite service of notice neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of notice.

16. If the aforesaid requirement are considered and

applied to the present facts of the case, the complainant in

this case has complied all the aforesaid requirements and

has produced documents to that effect in his evidence.

There is no rebuttal evidence adduced by the accused to

disbelieve the evidence of the complainant.

17. Sec.20 of the Negotiable Instrument Act speaks

as under:

Inchoate stamped instruments: Where one person signs and delivers to another a paper stamped in accordance

with the law relating to negotiable instruments then in force in (India) and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid there under.

18. In this case, accused has not denied his

signature in Ex.P1 and P2. It is not his case that, he was

not acquainted with the complainant. He has put forth the

defence of total denial. When he admits his signature on

Ex.P1 and P2, the presumption available under Sec.118

and 139 of the NI Act comes into operation. These

presumptions are rebuttal presumptions. But there is no

rebuttal evidence adduced by the accused.

19. One more defence has been taken up by the

accused that there is material alteration in Ex.P2 with

regard to the year, therefore, the said instrument is

invalid, thereby, he does not dispute the contents of Ex.P1.

Sec.87 of the NI Act speaks of "effect of material

alteration". The learned counsel for revision petitioner

relied upon judgment of the Kerala HC3 in Ramachandran

vs. K.Dineshan and another stated Supra of wherein, it is

held that when a document itself is void, it cannot be held

that any legally recoverable debt is due under that

document.

20. When reply notice was issued by the accused, no

such defence was taken that the said cheque was

materially altered. Except denial, nothing is stated in his

reply notice. It is not his case that without his knowledge,

the complainant has altered the said year appearing in

Ex.P2. It is true that if there is material alteration in the

cheque, option is very much available to the banker to

2005 Crl.L.J 1237

dishonour the cheque. But, in this case, Ex.P1 and P2 were

dishonoured for want of sufficient funds. PW.2 also speaks

that said Ex.P1 and P2 were dishonoured for want of

sufficient funds.

21. The learned trial magistrate as well as first

appellate court have considered all these aspects and have

come to the conclusion that accused in discharge of legally

enforceable debt, has issued Ex.P1 and P2. Section 20 of

NI Act states that when a person signs and delivers a

blank cheque to another, he thereby gives prima facie

authority to holder thereof to make or complete it for any

amount specified therein not exceeding the amount

covered by stamp. After perusal of said Sec.20, it appears

that, the accused in this case has issued the cheque with

the knowledge that the complainant has got authority to

fill up its contents. Therefore, after combined reading of

Sec.20 and 138 of the `Act',. It appears that to make out

an offence in question against the accused, the necessary

ingredient is that, the cheque should be drawn on account

of the drawer and it is immaterial the contents therein are

in whose handwriting as per Sec.20 of the Act. No doubt

whenever there is correction it requires initial. Here in this

case, provisions of Sec.87 of the NI Act cannot be properly

brought on record by the accused. Sec.87 of the Act says

that a person who consents to the alteration and the

individual who made the alteration are disentitled to the

complaint against such alteration. If any alteration have

been made without consent of the party to the negotiable

instrument, then only it becomes void against any one who

is a party to such a negotiable instrument at the time of

making such alteration.

22. Thus, the law is well settled that once a cheque

is issued it is to presumed, that legally enforceable debt

exist and is enforceable. Where alterations have been

made in the cheque, and drawer signs over it, that would

indicate that the said alterations have been made with the

consent of the drawer then, only such alterations would

not disentitle the drawee to negotiate the instrument. In

this case, no objection was raised with regard to said

change of the year in Ex.P2. it is not a material alteration.

He does not dispute Ex.P1 and Ex.P2.

23. The first appellate court and the trial court have

observed that there is no substance in the defence of the

accused with regard to the material alteration in the

cheques. The learned trial court and first appellate court

have concurrently observed that, accused must have

acknowledged the said correction of the year and have

correctly given reasons to disbelieve the alleged alteration

put forth by the accused. The reasons assigned by the trial

court as well as the first appellate court are free from

errors and both the courts have judiciously appreciated the

evidence. This Court in exercise of jurisdiction under

Section 397 of Cr.P.C cannot sit as an appellate Court and

re-appreciate the evidence. Therefore, the impugned

judgments of both the courts do not warrant interference

by this Court. Hence, the revision petition filed by the

petitioner fails and is liable to be dismissed.

Resultantly, the following:

ORDER

(i) The Revision Petition filed by accused-petitioner is dismissed.

(ii) The judgment dated 30.12.2011 in CC No. 61/2010 passed by the Court of the Senior Civil Judge & JMFC., Bantwal, D.K. and the Judgment dated 08.07.2015 in Criminal Appeal No. 12/2012 passed by the Court of the III Addl. District & Sessions Judge, D.K., Mangalore are confirmed.

(iii) Accused shall deposit the fine amount before the trial Court within fifteen days from today. The trial Court shall take proper steps in accordance with law to collect the fine.

(iv) Send back the trial Court records and first Appellate court records forthwith along with a copy of this judgment.

(v) Intimate the operative portion of this order to the trial Court as well as the first appellate court forthwith.

SD/-

JUDGE

SK/-