Karnataka High Court
Sadanand Balaram Mule Prop vs Shara Finance And Investments on 20 June, 2023
Bench: Anil B Katti
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CRL.RP No. 100293 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20th DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100293 OF 2017
BETWEEN:
SADANAND BALARAM MULE PROP:
M/S. ANAND AGENCIES,
AGE:59 YEARS, OCC:TAILOR,
R/O. DALAYAT GALI, HALIYAL,
NOW RESIDING AT:GANAPATI GALLI, HALIYAL,
UTTAR KANNADA DIST.
...PETITIONER
(BY SHRI BASANNA N. PATTEKAR, ADV.)
Digitally AND:
signed by J
MAMATHA
J
MAMATHA Date: SHARA FINANCE & INVESTMENTS
2023.06.21
12:22:43 CHURCH ROAD, HALIYAL,
+0530
REPRESENTED BY ITS GPA HOLDER,
SHRI HASAN MOHAMMED SADIQ,
KATTIMANI, AGE: 33 YEARS,
R/O. HOSUR GALLI, HALIYAL.
...RESPONDENT
(BY SHRI CHETAN MUNNOLI AND
MS.SURABHI KULKARNI, ADVs.)
***
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C., SEEKING TO SET
ASIDE THE JUDGEMENTS AND ORDERS OF CONVICTION AND
FINE IN C.C.NO. 360/2011 AND CRIMINAL APPEAL NO.
74/ 2014 DATED 13.06.2014 AND 26.07.2017 PASSED BY THE
CIVIL JUDGE AND JMFC HALIYAL, FOR OFFENCE 138 NI ACT
AND THE ORDER OF FIRST ADDITIONAL DISTRICT AND
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CRL.RP No. 100293 of 2017
SESSIONS JUDGE, UK. KARWAR SITTING AT SIRSI
RESPECTIVELY.
THIS REVISION PETITION COMING ON FOR FURTHER
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 11.04.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
Revision petitioner/accused feeling aggrieved by the
judgment of first Appellate Court on the file of I Addl. District
and Sessions Judge, U.K., Karwar, sitting at Sirsi, in
Crl.A.No.74/2014 dated 26.07.2017, 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. The factual matrix leading to the case of
complainant can be stated in nutshell to the effect that accused
is customer of complainant-finance and availed loan facility
from the said finance. Accused for lawful discharge of debt
issued cheque bearing No.270491 dated 27.10.2010 drawn on
account maintained by him in KDCC Bank, Haliyal, under
account No.102. Complainant presented the said cheque for
encashment through his banker Corporation Bank, Haliyal and
CRL.RP No. 100293 of 2017
the same was returned with an endorsement 'insufficient funds'
dated 01.12.2010. Complainant issued demand notice dated
03.12.2010. The same is duly served to accused on
04.12.2010. Accused inspite of service of demand notice has
neither replied to the notice nor paid the amount as called upon
in the demand notice. Therefore, complaint is filed on
05.01.2011 for taking appropriate legal action against accused
for the offence punishable under Section 138 of the Negotiable
Instruments Act (for short 'the N.I.Act').
4. In response to summons, accused appeared and
contested the case. Complainant to prove his case relied on
the evidence of PW-1 and the documents Ex.P.1 to Ex.P.13.
5. On closure of evidence of complainant's side,
statement of accused under Section 313 of the Cr.P.C. came to
be recorded. Accused denied all incriminating material
evidence appearing against him and claimed that false case is
filed. The accused relied on his own evidence DW-1 and the
document Ex.D.1. The trial Court after appreciation of
evidence on record has convicted accused for the offence under
Section 138 of the N.I.Act and imposed sentence as per order
of sentence.
CRL.RP No. 100293 of 2017
6. Accused challenged the said judgment of conviction
and order of sentence before first Appellate Court on the file of
I Addl. District and Sessions Judge, U.K., Karwad, sitting at
Sirsi, in Crl.A.No.74/2014. The first Appellate Court after re-
appreciation of the evidence on record, dismissed the appeal
and confirmed judgment of trial Court.
7. Revision petitioner-accused challenging concurrent
finding of both the Courts below contended that cheque in
question Ex.P.1 was not issued for lawful discharge of debt. The
complainant-finance has taken blank cheque as surety and
even after clearance of the entire loan amount, cheque was
misused and false case is filed. The Courts below without
appreciating the said fact merely on the admitted fact of
issuance of cheque with signature of accused on the account
maintained by him has proceeded to hold that accused is guilty
of the offence under Section 138 of the N.I.Act. The approach
and appreciation of oral and documentary evidence by both the
Courts below are contrary to law and evidence on record and
the findings recorded cannot be legally sustained. Therefore,
prayed for allowing the revision petition and to set aside the
judgment of both Courts below. Consequently, to acquit the
accused from the accusation levelled against him.
CRL.RP No. 100293 of 2017
8. In response to notice, respondent appeared through
learned counsel.
9. Heard the arguments of both sides.
10. On careful perusal of material evidence placed on
record, it would got to show that accused has borrowed loan of
Rs.50,000/- from complainant -finance. Accused to repay the
balance amount issued cheque for Rs.37,000/- dated
27.10.2010 Ex.P.1. On presentation of cheque for collection
through the banker of complainant, Corporation Bank, same
was dishonoured vide bank endorsement Ex.p.2 as 'insufficient
funds'. Complainant issued demand notice on 03.02.2010
Ex.P.3 and the same is duly served to accused vide postal
acknowledgement card Ex.P.4. Accused has neither replied to
the said demand notice nor paid the amount covered under
cheque. Therefore, complaint is filed on 05.01.2011. If these
documents are appreciated with the oral evidence of PW-1,
then it is evident that accused issued cheque on the account
maintained by him with his signature for the amount covered
under cheque. The said cheque on its presentation was
bounced for want of sufficient funds in the account of accused.
The accused inspite of due service of demand notice neither
CRL.RP No. 100293 of 2017
replied to the same nor paid the amount covered under cheque.
Therefore, necessary inferences in terms of Sections 118 and
139 of the N.I.Act has to be drawn that cheque Ex.P.1 was
issued for lawful discharge of debt. It is now upto the accused
to place rebuttal evidence to displace the presumption available
in favour of complainant in terms of Section 118 of the N.I.Act.
11. In this context, 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
CRL.RP No. 100293 of 2017
evidentiary burden and not a persuasive
burden".
In view of the principles enunciated in this judgment, 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.
12. In the present case, accused apart from relying on
the material placed on record by complainant, also led his
evidence as DW-1 and the document Ex.D.1 which is the
certified copy of deposition of Ningappa Dattatreya Narvekar,
Manager of KDCC Bank, Haliyal branch, in C.C.No.360/2011.
13. Accused has not disputed availment of loan of
Rs.50,000/- from complainant -finance in the year 2006 and
same is also evidenced from the documents Ex.P.7 to Ex.P.13.
The defence of accused is that cheque was not issued for
legally enforceable debt as the loan was time barred and
secondly, blank signed cheque Ex.P.1 was issued by accused as
a security for the loan availed by him in the complainant -
finance.
CRL.RP No. 100293 of 2017
14. Before adverting to the defence of accused, it is
necessary to record finding on IA Nos.1/2020 and 2/2020
raised in written submission filed by learned counsel for
revision petitioner. The new counsel on obtaining NOC from
earlier counsel has filed power on 02.09.2020. IA-1/2020 was
filed on 14.09.2020 seeking to set aside criminal case in
C.C.Nos.360/2011 and 164/2010 on the file of JMFC, Haliyal.
The same was returned to learned counsel with office objection.
Thereafter, IA-2/2020 was filed on 16.09.2020 seeking
permission to produce the documents. Learned counsel for
revision petitioner wants to place on record the documents
related to C.C.No.360/2011 which is the subject matter in
Crl.R.P.No.100067/2018. It is pertinent to note that learned
counsel for revision petitioner filed memo dated 31.01.2023
stating that IA Nos.1/2020 and 2/2020 are not pressed and on
the same day, this Court has ordered that IA Nos.1/2020 and
2/2020 are dismissed as not pressed. The same was within the
knowledge of learned counsel for revision petitioner, since the
order was passed in his presence on the memo filed dated
31.01.2023 on the same day. Therefore, learned counsel for
revision petitioner cannot seek to decide IA-1/2020 on merits
as claimed in the written submissions.
CRL.RP No. 100293 of 2017
15. The defence of accused is that he has given blank
signed cheque as security for availment of loan in the year
2006. The said cheque dated 27.10.2010 is presented for
encashment and as such, same is barred by time. The Courts
below relied on judgment of this Court in S.R.MURALIDHAR
VS. G.Y.ASHOK reported in ILR 2001 KAR 4127 and
recorded finding that blank cheque issued by accused to the
complainant at the time of availing loan does not preclude the
complainant - finance from filling it up and presenting it before
the bank for encashment. The burden is on accused to prove
that cheque is given as security and the same has been
misused by the complainant - finance.
16. DW-1 has deposed to the effect that complainant -
finance has taken blank signed cheque in 2006 for loan availed
by him for Rs.50,000/-. The finance has not issued any notice
demanding outstanding loan amount. DW-1 has further
deposed to the effect that in 2009 itself, he has closed the
account and handed over remaining un-used cheque to the
bank. In support of such contention, has produced Ex.D.1
certified copy of deposition of PW-2 Ningappa Dattatreya
Narvekar, Manager of KDCC Bank, Haliyal branch. The mere
production of deposition of PW-2 in C.C.No.360/2011 itself
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CRL.RP No. 100293 of 2017
cannot be said as sufficient evidence to hold that accused has
closed the account and delivered un-used cheque to the
Manager of bank. PW-2 has never produced the application
said to have been given by accused with un-used cheque for
closing the bank account in KDCC bank, Haliyal branch. In
terms of presumption under Section 118 of the N.I.Act,
presumption will have to be drawn as to date in terms of
Section 118-B that every negotiable instrument bearing a date
was made or drawn on such date. Indisputably, cheque is
drawn on 27.10.2010. Therefore, in terms of Section 118-B of
the N.I.Act, effective date of cheque is the date mentioned in
cheque. The claim of accused that he has issued blank signed
cheque and the same is time barred has not been proved by
accused other than his self-serving statement. Therefore, both
the defences of accused that blank signed cheque given as
security was misused and the claim is time barred cannot be
legally sustained.
17. Learned counsel for revision petitioner argued that
cheque bearing No.270491 dated 27.10.2010 involved in this
case and the cheque bearing No.270498 dated 09.02.2010
involved in C.C.No.360/2011 both were issued on the same
account maintained by accused. However, cheque bearing
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CRL.RP No. 100293 of 2017
No.270498 dated 09.02.2010 was dishonoured as "Account
closed". If that is the case then how can the subsequent
cheque bearing No.270491 dated 27.10.2010 presented on
01.12.2010 can be returned as insufficient funds. The demand
notice Ex.P.3 is duly served to accused vide acknowledgement
Ex.P.4. The accused has not replied to said notice inspite of
due service of notice by making proper foundation of the
defence as referred above. Secondly, accused has not
examined the Bank Manager in the present case, but only
chosen to produce certified copy of deposition of Bank Manager
examined as PW-2 in C.C.No.360/2011. Thirdly, there was no
occasion for complainant to cross-examine PW-2 to disprove
the statement made by Bank Manager and lastly, statement of
PW-2 in the deposition as per Ex.D.1 is admittedly not
supported with the application of accused having returned un-
used cheque to the bank for closing bank account. Therefore,
without there being any proper foundation and evidence on
record, above referred contention of learned counsel for
revision petitioner cannot be accepted.
18. Revision petitioner/accused also contended that the
demand notice Ex.P.3 is not served to accused and the
signature appearing on postal acknowledgement Ex.P.4 as per
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CRL.RP No. 100293 of 2017
Ex.P.4(a) is not that of accused. When the notice is addressed
to the correct address of accused and there is
acknowledgement card Ex.P.4 showing that the same is duly
served to accused, accused has not made out any case that
signature appearing on Ex.P.4 as per Ex.P.4(a) is not of any of
his family members. Therefore, evidence of PW-1 and Ex.P.4
will have to be accepted as deemed service of demand notice to
accused. The burden is on accused to prove that no any such
notice is served to him. In so far as contention of learned
counsel for revision petitioner that signature on Ex.P.4 as per
Ex.P.4(a) is tampered, accused has not examined the postal
authority who has returned the acknowledgement card Ex.P.4.
Secondly, accused has not laid any foundation by replying to
the demand notice or after his appearance before the Court.
Thirdly, accused has not taken any steps to get expert opinion.
Therefore, without there being any basic foundation and
necessary evidence on record, contention of revision petitioner
that acknowledgement card Ex.P.4 is tampered cannot be
accepted.
19. Learned counsel for revision petitioner in support of
his contention that complaint filed by complainant - GPA holder
is hit by law laid down by Hon'ble Apex Court in
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CRL.RP No. 100293 of 2017
A.C.NARAYANAN VS. STATE OF MAHARASHTRA reported in
[(2015) 12 SCC 203]. I have carefully gone through the
guidelines issued by Hon'ble Apex Court regarding
maintainability of complaint filed by GPA Holder. In the present
case, GPA holder representing the complainant - finance as
described in the cause-title has filed the complaint. Further,
produced the GPA as per Ex.P.6 which was marked without any
objection by defence. PW-1 has deposed to the effect that on
the basis of records of finance has got knowledge about the
transaction and for the last 5 years he is working as Manager
and earlier also he was working in the same branch. Therefore,
in view of the facts of present case, above referred judgment of
the Hon'ble Apex Court has no application to the facts of
present case.
20. Learned counsel for revision petitioner relied on the
judgment of Orissa High Court in SWASTIK AGENCY VS.
STATE BANK OF INDIA, BHUBANESWAR reported in [AIR
2009 ORISSA 147]. There cannot be any dispute with regard
to the proposition of law laid down in the said decision, but
same has no application to the facts of present case.
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CRL.RP No. 100293 of 2017
21. Learned counsel for revision petitioner relied on the
judgment of Hon'ble Apex Court in SUBODH S. SALASKAR
VS. JAYPRAKASH M. SHAH AND ANOTHER reported in
[(2008) 13 SCC 689]. The Hon'ble Apex Court was
considering the delayed amendment application introducing an
additional offence under Section 420 of IPC and held that
Section 5 of the Limitation Act has no application.
22. Learned counsel for revision petitioner relied on the
judgment of Hon'ble Apex Court in U.P.STATE CO-
OPERATIVE LAND DEVELOPMENT BANK LTD., VS.
CHANDRA BHAN DUBEY AND OTHERS reported in [(1999)
1 SCC 741] wherein it has been observed and held that:
"When any citizen or person is wronged, the High
Court will step in to protect him, be that wrong be done
by the State, an instrumentality of the State, a
company or a co-operative society or association or
body of individuals, whether incorporated or not, or
even an individual. Right that is infringed may be
under Part III of the Constitution or any other right
which the law validly made might confer upon him."
In the present case, the alleged fraud, collusion and
perjury in tampering the acknowledgement card Ex.P.4 has not
been probabilized by accused with the evidence of DW-1 and
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CRL.RP No. 100293 of 2017
the document Ex.D.1. Therefore, said decision has no
application to the facts of present case.
23. When the complainant has proved by evidence on
record that Ex.P.1 cheque is issued by accused with his
signature on the account maintained by him for lawful
discharge of debt, then the presumption under Sections 118
and 139 will have to be drawn. In the present case, accused
has failed to probabilize his defence on any of the grounds
referred above by preponderance of probabilities. Therefore, it
will have to be held that complainant has proved the offence
under Section 138 of the N.I. Act. The Courts below have
rightly appreciated the evidence on record and arrived at a just
and proper conclusion in holding that accused is guilty of the
offence under Section 138 of N.I.Act. The imposition of
sentence as ordered by trial Court which is affirmed by first
Appellate Court also does not call for any interference.
Consequently, proceed to pass the following:
ORDER
Revision petition filed by revision petitioner is hereby
dismissed.
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CRL.RP No. 100293 of 2017
The judgment of first Appellate Court on the file of I Addl.
District and Sessions Judge, U.K.Karwar, sitting at Sirsi, in
Crl.A.No.74/2014 dated 26.07.2017 which has confirmed the
judgment of trial Court on the file of Civil Judge and JMFC.,
Haliyal, in C.C.No.360/2011 dated 13.06.2014 is hereby
confirmed.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
