Karnataka High Court
M Nagaraj S/O Late Hanumanthappa vs A. Anjini S/O A Ramappa on 30 May, 2023
Bench: Anil B Byabkj
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CRL.RP No. 100071 of 2021
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100071 OF 2021
BETWEEN:
M. NAGARAJ S/O LATE HANUMANTHAPPA,
AGE-ABOUT 40 YEARS, OCCUPATION: AGRICULTURIST,
R/O. ULUVATHI VILLAGE, HAGARIBOMMANAHALLI, TALUK,
DISTRICT-BALLARI-583212.
...PETITIONER
(BY SHRI. DEEPAK S. KULKARNI, ADV.)
AND:
Digitally
signed by J
MAMATHA A. ANJINI S/O A RAMAPPA,
J
MAMATHA Date:
2023.06.01 AGED-ABOUT 35 YEARS, OCC: BUSINESS
10:36:15 R/O. ANAND BAZAAR, SANDUR TOWN AND POST,
+0530
BALLARI DISTRICT-583119.
...RESPONDENT
(BY SHRI. S.M. KALWAD, ADV.)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397(1)
OF CR.P.C., SEEKING TO THE JUDMGNE AND ORDER DATED
08.02.2021 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BALLARI IN CRIMINAL APPEAL NO.26/2015
CONFIRMING THE JUDGMENT AND ORDER PASSED BY THE
CIVIL JUDGE AND JMFC SANDUR IN C.C. NO.246/2010 DATED
14.08.2015 WHEREIN THE REVISION PETITIONER HAS BEEN
CONVICTED FOR AN OFFENCE PUNISHALBE U/S 138 OF
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CRL.RP No. 100071 of 2021
N.I.ACT MAY KINDLY BE SET ASIDE BY ALLOWING THIS
REVISION PETITION.
THIS REVISION PETITION COMING ON FOR FURTHER
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 15.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
Revision petitioner-accused being aggrieved by the
judgment on the file of I Additional District and Sessions
Judge, Ballari (hereinafter referred as 'First Appellate
Court' for brevity) in Criminal Appeal No.26/2015, dated
08.02.2021, preferred the present Criminal 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
prosecution can be stated in nutshell to the effect that
complainant and accused are well known to each other. In
the month of March-2009, accused approached the
complainant for financial assistance of Rs.1,50,000/- for
the purpose of his business. The complainant gave money
CRL.RP No. 100071 of 2021
of Rs.1,50,000/- to accused who assured to return the
same within 15 days. Thereafter, complainant demanded
payment of money from the accused and payment was
postponed on one or the other pretext. Accused in order to
discharge legally enforceable debt issued cheque bearing
No.0952765 drawn on State Bank of Mysuru,
Hagaribommanahalli branch, dated 01.03.2010 for
Rs.1,50,000/-. Complainant presented the said cheque
and the same was dishonored as insufficient funds and
drawers signature differs vide bank endorsement dated
08.03.2010. The complainant issued demand notice on
18.03.2010 and the same is duly served to the accused on
29.03.2010. Accused gave reply dated 30.03.2010.
Accused has not paid the amount as called upon in the
demand notice. Therefore, complaint came to be filed on
27.04.2010 for taking appropriate legal action against
accused.
4. In response to the summons, accused has
appeared before the trial Court through the counsel and
contested the matter. The trial Court after being prima-
CRL.RP No. 100071 of 2021
facie satisfied framed the accusation against accused and
accused pleaded not guilty and claimed to be tried.
5. Complainant to prove his case relied on the
evidence of PW.1 and documents Exs.P.1 to 8. On closure
of the prosecution evidence, statement of accused under
Section 313 of Cr.P.C, came to be recorded. Accused
denied all the incriminating material evidence appearing
against him and placed rebuttal evidence in the form of
oral evidence of DWs.1 and 2 and the documents at
Exs.D.1 to D.6. The Trial Court after appreciating the
evidence on record has convicted the accused for the
offences punishable under Sections 138 of N.I.Act and
imposed sentence as per order of sentence.
6. The said judgment of conviction and order of
sentence was challenged by accused before First Appellate
Court on the file of learned I Additional District and
Sessions Judge, Ballari in Criminal Appeal No.26/2015,
dated 08.02.2021. The First Appellate Court on re-
appreciating the material evidence on record has
CRL.RP No. 100071 of 2021
dismissed the appeal and confirmed the judgment of
conviction and order of sentence passed by trial Court.
7. The revision petitioner-accused challenging the
concurrent findings of both the Courts below contending
that both the Courts below have not properly appreciated
the evidence on record more particularly rebuttal evidence
placed on record by accused in the form of evidence of
DWs.1 and 2 and the documents at Ex.D.1 to D.6. The
Courts below have committed serious error in holding that
the cheque-Ex.P.1 is issued for lawful discharge of debt in
spite of specific denial about signature of accused on
cheque-Ex.P.1. The evidence of DW.2-Bank Manager and
the documents at Exs.D.2 to D5 previous cheques issued
by the accused have been conveniently ignored by both
the Court below and proceeded to record finding on the
basis of statutory presumption available in favour of
complainant. The approach and appreciation of evidence
by both the Courts below are contrary to law and evidence
on record. Therefore, prayed for allowing the revision
petition and to set-aside the judgment of both the Courts
CRL.RP No. 100071 of 2021
below. Consequently, to acquit the accused from the
accusation leveled against him.
8. Heard the arguments of both sides.
9. On careful perusal of the oral and documentary
evidence, it would go to show that accused has drawn the
cheque bearing No.095276 dated 01.03.2010 on the
account maintained by him in State Bank of Mysuru,
Hagaribommanahalli in favour of complainant for lawful
discharge of debt. The said cheque was presented by
complainant for encashment on 01.03.2010 and the same
was dishonored vide bank endorsement-Ex.P.2, which was
communicated to the banker of the complainant on
08.03.2010 vide bank endorsement-Ex.P.3. Complainant
has issued demand notice-Ex.P.4 and the accused issued
reply notice-Ex.P.8. Accused has failed to pay the amount
covered under the cheque. Therefore, complaint came to
be filed on 27.04.2010. If the oral evidence of PW.1 and
the above referred document are perused in the light of
complaint allegations, it is evident that the cheque-Ex.P.1
is issued by accused with his signature on the account
CRL.RP No. 100071 of 2021
maintained by him. The said cheque on its presentation
was dishonored with the endorsement of "insufficient
funds" and "drawer signatures differs". Accused has failed
to comply the demand notice. Complainant has discharged
initial burden of proving said fact and therefore, statutory
presumption in terms of Section 118 and 139 of N.I.Act
has to be drawn in favour of complainant. Now it is up to
the accused to place rebuttal evidence to displace the
statutory presumption available in favour of complainant.
10. Revision petitioner-accused apart from relying
on the materials placed by the complainant also lead his
evidence as DW.1 and examined the bank manager-DW.2,
so also got marked Exs.D.1 to D.6. Whether the said
rebuttal evidence placed on record by the accused can be
said as sufficient evidence to disprove the statutory
presumption available in favour of complainant or not is to
be decided.
The specific defence of accused as could be made out from
the cross-examination of PW.1 and through the evidence
CRL.RP No. 100071 of 2021
of DWs.1 and 2 with the documents as per Exs.D.1 to D.6
are as follows:
1) Accused lost the cheque.
2) Signature appearing on
Ex.P.1 is not that of accused.
3) Complainant has forged
signature of accused on Ex.P.1.
4) Demand notice is not duly
served to the accused.
11. The trial Court as well as First Appellate Court
recorded finding that DW.2 has not produced original
application of accused. Secondly, stop payment instruction
was not issued to the bank for having lost the cheque and
lastly no expert opinion is sought in terms of Section 45
and 47 of Indian Evidence Act. Thus, rebuttal evidence
placed on record by the accused is insufficient to displace
the statutory presumption available in favour of
complainant.
CRL.RP No. 100071 of 2021
12. Before adverting to the other defence of
accused, it is necessary to first decide the last defence of
accused about non service of demand notice. Complainant
has stated in the complaint that he has issued demand
notice on 18.03.2010 through RPAD and also through
certificate of posting. The notice sent through RPAD was
returned "addressee did not collect cover within 7 days".
However, notice sent through certificate of posting did not
return which was sent on the same address.
13. Indisputably, accused has replied to the
demand notice-Ex.P.8 on 30.03.2010. Accused has not
denied correctness of the address shown in the cause title
of the complaint. On the same address notice through
RPAD and certificate of posting was sent. The notice sent
through RPAD was not collected by accused within 7 days
and notice sent through certificate of posting was not
returned to complainant. In view of the fact that accused
has replied the notice Ex.P.8, it will have to be inferred
that notice sent through certificate of posting is duly
served and therefore, he has given reply notice-Ex.P.8.
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CRL.RP No. 100071 of 2021
Hence, accused cannot contend that demand notice is not
duly served to him and accordingly, the said contention is
rejected.
14. The other three defences of accused of having
lost the cheque, complainant forged the signature on
Ex.P.1 and accused has not signed Ex.P.1 are taken
together for consideration to better appreciate the
evidence on record.
15. Accused has contended in reply notice-Ex.P.8
that he has lost some cheques and given application to
bank not to honor the said cheques. It is further
contended that signature appearing on the cheque
referred in the notice is not belongs to him. The marriage
talks between complainant and accused in the house of
bridegroom was not materialized and to take revenge
complainant has forged and fabricated the document to
file false complaint. Accused in support of said defence
examined the bank manager as DW.2 and through him
specimen signature of accused was produced at Ex.D.1
and the copies of the earlier cheques issued by accused
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Exs.D.2 to 5 are produced with the bank statement at
Ex.D.6.
16. DW.2 in the cross-examination claimed that
accused has submitted an application in respect of lost
cheque and though claimed that he will produce the said
application, but has not produced the same. Accused has
denied that he is A.Nagaraj and claimed that he is
M.Nagaraj. Accordingly, he used to sign in Kannada which
can be found in the specimen signature-Ex.D.1. The
earlier cheques issued by him Exs.D.2 to 5 are also signed
in Kannada "M.Nagaraj". The cheque-Ex.P.1 is signed in
English as "A.Nagaraj". Therefore, accused contended his
signature is forged on Ex.P.1. On perusal of the vakalath
filed by accused before the trial Court, it would go to show
that accused has described himself as "M.Nagaraj alias
A.Nagaraj".
17. Indisputably, the cheque was dishonored as
"funds insufficient and drawer signature differs". The bank
statement of accused Ex.D.6 right from 2006 to 2014
would go to show that at any point of time in between said
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CRL.RP No. 100071 of 2021
period, the amount credited to the account of accused did
not exceed Rs.1,00,000/-. On the other hand, accused has
failed to maintain even minimum balance at some point of
time. Accused deposited money to continue account and
also withdrawn cash from the said account. Accused has
not filed any complaint to the concerned police station to
show that he has filed the complaint having lost the
cheque. DW.2 has not produced original letter given by
accused that he has given intimation to the bank about
loss of cheque and instructed bank not to honor cheque.
In the reply to the demand notice-Ex.P.8, it is only stated
that he has lost the cheques. However, no any particulars
have been revealed. However, in examination-in-chief
accused claimed that while traveling in the bus, he lost
some of the cheques and he has given intimation to the
bank accordingly. The evidence of DWs.1 and 2 cannot be
said as sufficient evidence to conclusively hold that
accused has proved theory of lost cheque during traveling.
18. It is true that the signature of accused
appearing on Ex,.P.1 is in English as "A.Nagaraj". The
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CRL.RP No. 100071 of 2021
specimen signature appearing on Ex.D.1 is "M.Nagaraj".
The same signature found on Exs.D.2 to 5 which are
earlier cheques issued by accused. Whether deliberate
change of signature of accused on Ex.P.1 contrary to the
one given as specimen to the bank attract penal action in
terms of Section 138 of N.I.Act or not is to be decided.
19. The Hon'ble Apex Court in Nepc Micon Limited
And Others vs Magma Leasing Limited reported in
(1999) 4 SCC 253, wherein it has been observed and
held at para No.14 that "object of bringing Section 138 on
statute appears to be to inculcate faith in the efficacy of
banking operations and credibility in transaction in
business on negotiable instruments and to promote the
efficacy of banking operations and to ensure credibility in
transacting business through cheques. Thereafter, the
Court disagreed with other views expressed in aforesaid
two cases and held that once the cheque is issued by the
drawer a presumption under section 139 must follow and
merely because the drawer issues a notice to the drawee
or to the bank for stoppage of the payment, it will not
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CRL.RP No. 100071 of 2021
preclude an action under Section 138 of the Act by the
drawee or the holder of a cheque in due course. The
Hon'ble Apex Court further held that it will make section
138 a dead letter, if the contention that by giving
instruction to the Bank to stop payment immediately after
issuing a cheque against the debt or liability, the drawer
can easily get rid of the penal consequences
notwithstanding the fact that deemed offence was
committed. Finally, the Court held that Section 138 of the
Act gets attracted only when the cheque is dishonoured."
The Hon'ble Apex Court having so observed concluded
that penal action in terms of Section 138 of the N.I.Act can
be maintained for dishonor of cheque for any reason.
20. The question of case covering signature do not
match was directly under consideration before Hon'ble Apex
Court in the judgment of M/S Laxmi Dyechem vs State
Of Gujarat & Ors reported in (2012) 13 SCC 375,
wherein it has been observed and held that "signatures do
not match" or that the "image is not found", which too
implies that the specimen signatures do not match, the
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signatures on the cheque would constitute a dishonour
within the meaning of Section 138 of the Act."
21. The co-ordinate bench of this Court in Dinesh
Harakchand Sankla vs Kurlon Ltd. And Ors reported
in ILR 2006 Kar 234 and also the judgment in
H.P.Mudlappa Vs. H.Narayana reported in 2016 (5) KCCR
1180 has taken similar view that drawers signature differs
will come within the purview of Section 138 of N.I.Act.
Therefore, heavy burden is on the accused to prove that
the signature appearing on Ex.P.1 is not belongs to him.
22. Accused except denying his signature on Ex.P.1
has not taken any effective steps to seek expert opinion in
terms of Sections 45 and 47 of the Indian Evidence Act.
Looking to the English alphabets used by accused in
signing Exs.D.2 to 5 prefixing his signature in Kannada
goes to show that he is using English alphabets for
signing. Accused could have offered his writing for
comparison of signature on Ex.P.1 for seeking expert
opinion. The deliberate change of signature to avoid
payment of lawful debt and to escape from the legal
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clutches of prosecution for the offence under Section 138
of N.I.Act cannot be ruled out. The bank is going to
certainly will not honor the cheque, where the signature
differs and to avoid suspicion of deliberate change in the
signature, so also to show the bona-fides of accused could
have sought for expert opinion. The trial Court as well as
First Appellate Court rightly appreciated the evidence on
record and justified in rejecting defence of accused of
having lost the cheque and complainant forged the
signature of accused on Ex.P.1 and signature appearing on
Ex.P.1 is not that of accused.
23. The question now remains about imposition of
sentence. The trial Court has imposed sentence of one
year imprisonment and pay a fine of Rs.5,000/- and in
default of payment of fine, accused shall undergo simple
imprisonment for one month. The same is affirmed by First
Appellate Court. The object of penal action in terms of
Section 138 of N.I.Act is to ensure credibility in transacting
business through cheques. Looking to the nature of
transaction and the evidence place on record, the
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imposition of sentence of imprisonment is too harsh and
the same needs to be interfered with. If the accused is
sentenced to pay a fine of Rs.1,55,000/- and in default of
payment of fine shall undergo imprisonment for three
months would meet the ends of justice. Consequently,
proceeded to pass the following:
ORDER
Criminal Revision Petition filed by the revision
petitioner is hereby partly allowed.
The judgment of the First Appellate Court on the file
of I Addl. District and Sessions Judge, Ballari in
Crl.A.No.26/2015 dated 8.2.2021 confirming the judgment
of the trial Court on the file of Civil Judge and JMFC,
Sandur in C.C.No.246/2010, dated 14.08.2015 for the
offence punishable under Section 138 of N.I.Act is hereby
modified as under:
The accused is sentenced to pay a fine of
Rs.1,55,000/- in default to pay the said fine amount, shall
undergo simple imprisonment for six months for the
offence under Section 138 of N.I.Act.
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CRL.RP No. 100071 of 2021
Out of the said fine amount, an amount of
Rs.1,50,000/- is ordered to be paid to the complainant as
compensation. The remaining amount of Rs.5,000/- shall
be forfeited to the State towards litigation expenses.
The registry is directed to transmit the records with
the copy of this judgment to trial Court.
(Sd/-)
JUDGE
AM/-
