Karnataka High Court
Mr Mohandas Patil vs K Mahesh Pai on 2 November, 2023
Bench: Anil B Katti
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CRL.RP No. 817 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 817 OF 2014
BETWEEN:
MR. MOHANDAS PATIL
S/O KRISHNARAYA PATIL
AGED ABOUT 50 YEARS
PATIL PUBLICITY AND TRAVELS
DEVI PIYUSH BUILDING
NEAR ANAND NURSING HOME
BRAHMAVARA, UDUPI TALUK
UDUPI DISTRICT-576 201
...PETITIONER
(BY SRI.HAREESH BHANDARY T., ADVOCATE)
AND:
K.MAHESH PAI
S/O LATE K.KRISHNADAS PAI
Digitally AGED ABOUT 40 YEARS
signed by R/A CAR STREET
SUMITHRA R BRAMHAVARA
Location: UDUPI TALUK AND DIST-576 201
HIGH COURT ...RESPONDENT
OF (BY SMT.SANDHYA U.PRABHU, ADVOCATE)
KARNATAKA
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C, PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER CONVICTION
DATED:31.10.12 PASSED BY THE PRL.C.J. AND JMFC, UDUPI IN
C.C.NO.972/2008 AND JUDGMENT AND ORDER DATED:25.8.14
IN CRL.A.NO.103/12 PASSED BY THE PRL.S.J., UDUPI, AND
ALLOW THE PETN.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 817 of 2014
ORDER
Revision Petitioner/accused feeling aggrieved by the
judgment of First Appellate Court on the file of
Prl.District and Sessions Judge, Udupi in
Crl.A.No.103/2012, dated 25.08.2014, confirming the
judgment of Trial Court on the file of Prl.Civil Judge and
J.M.F.C., Udupi in C.C.No.972/2008, dated 31.10.2012
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 of both sides.
4. After hearing both the sides and on perusal of
Trial Court Records with judgment of both the Courts
below the following points arise for consideration:
1) Whether the impugned judgment under
revision petition which confirmed the
judgment of the Trial Court is perverse
capricious and legally not sustainable and
call for any interference by this Court?
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5. On perusal of the oral and documentary
evidence placed on record, it would go to show that the
accused has borrowed an amount of Rs.2,70,000/- on
04.07.2007. On the same day accused in order to
discharge the lawful debt has issued post dated cheque
bearing No.346568 dated 09.07.2007 for Rs.2,70,000/-
drawn on Vijaya Bank, Brahmavara Branch Ex.P.1. The
said cheque was presented by the complainant through his
banker for collection and the same was dishonoured vide
bank endorsement Ex.P.2 as 'Exceeds arrangement'. The
complainant has issued demand notice dated 19.11.2007
through RPAD Ex.P.3. and also through Under Certificate
of posting Ex.P.4. The notice sent to the accused through
RPAD returned as "Unclaimed" on 30.11.2007. However,
the notice sent to accused through UCP has been served.
The accused has neither replied to the notice nor paid the
amount covered under the cheque. Therefore, complainant
has filed the complaint on 27.12.2007. If the above
referred dates with regard to issuance of cheque and
dishonour of the same and non-compliance of accused to
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the demand notice issued by complainant are appreciated
with the oral testimony of PW.1, then it is evident that the
cheque issued by the accused for lawful discharge of debt
was dishonoured as "Exceeds Arrangement". Accused has
not replied to the demand notice nor paid the amount
covered under the cheque. Complainant has complied
necessary legal requirements in terms of Section 138 (a)
to (c) of Negotiable Instruments Act, 1881 (hereinafter for
brevity referred to as "N.I.Act"). Therefore, the statutory
presumption in terms of Section 118 and 139 of N.I.Act
will have to be drawn.
6. In this context of the matter, it is useful to refer
the judgment of Hon'blel Apex Court in APS Forex
Services Pvt. Ltd. Vs. Shakti International Fashion
Linkers and others reported in AIR 2020 SC 945,
wherein it has been observed and held that once the
issuance and signature on cheque is admitted, there is
always a presumption in favour of complainant that there
exist legally enforceable debt or liability. Plea by accused
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that cheque was given by view of security and same has
been misused by complainant is not tenable.
7. It also profitable to refer another judgment of
Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and
another reported in 2022 SCC OnLine SC 1131,
wherein it has been observed and held that:-
" Once the initial burden is discharged by the
complainant that the cheque was issued by the
accused and signature of accused on the
cheque is not disputed, then in that case, the
onus will shift upon the accused to prove the
contrary that the cheque was not for discharge
of any debt or other liability. The presumption
under Section 139 of N.I. Act is statutory
presumption and thereafter, once it is
presumed that the cheque is issued in whole or
in part of any debt or other liability which is in
favour of the complainant/holder of the cheque,
in that case it is for the accused to prove the
contrary."
In view of the principles enunciated in the
aforementioned two judgments of Hon'ble Apex Court, it is
evident that when once issuance of cheque with signature
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of accused on the account maintained by him is admitted
or proved, then statutory presumption in terms of Sections
118 and 139 of N.I. Act will have to be drawn. It is now
up to the accused to place rebuttal evidence to displace
the statutory presumption available in favour of the
complainant in terms of Sections 118 and 139 of N.I.Act
the burden of placing rebuttal evidence to displace the
statutory presumption is on the accused.
8. In this context of the matter, it is useful 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
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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".
9. 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
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 material
submitted by complainant. It is not necessary for the
accused to step into witness box to probabilise his
defence.
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10. It is the specific defence of accused that there
was no any transaction between the complainant and
himself and he has issued the cheque to one Shantharam
Padiyar, the said cheque has been misused by the
complainant and filed this case. The accused in order to
prove the said fact relied on the evidence of DW.1
Shantharam Padiyar as his witness. It is pertinent to note
that the accused has not made any basic foundation by
replying to the demand notice by raising the defence that
he has issued the cheque to Shantharam Padiyar and the
same has been misused by the complainant. Secondly, the
accused has not led any of his evidence, nor brought on
record any circumstances in the cross-examination of
PW.1, as to how cheque in question Ex.P.1 came in
possession of accused, except suggesting that he has
issued the cheque to Shantharam Padiyar and the same
has been misused by the complainant which has been
denied by PW.1. The accused has chosen to lead the
evidence of Shantharam Padiyar in support of the above
referred defence.
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11. DW.1 has deposed to the effect that he know
both the complainant and the accused and having
transaction with them. While making transaction with the
accused, he had received the blank signed cheque and the
bond and identifies the cheque Ex.P.1 which was given to
him by the accused. DW.1 further deposed to the effect
that he suffered loss in his business and he was in due of
money to the complainant. Therefore, he has given the
cheque issued by the accused Ex.P.1 to complainant. Later
on he came to know from accused that complainant has
misused the said cheque and filed this false case. There is
no any material evidence that has been brought on record
in the cross-examination of PW.1 as to the time when this
DW.1 Shantharam Padiyar has taken loan from the
complainant and on which date the loan was taken, so also
no any allegations were made against the complainant
that he came in possession of the cheque Ex.P.1 either by
means of an offence or fraud which was said to have been
given to accused. DW.1 claims that earlier he was doing
money lending business and for the loan given to the
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accused he had taken blank signed cheque. DW.1 has not
produced any documents that cheque bearing
No.346568 Ex.P.1 dated 09.07.2007 was given to him
and he delivered the same to the complainant. There are
no material evidence produced on record to show that this
DW.1 having taken any loan from the complainant. It is
unimaginable as to why DW.1 delivered the blank signed
cheque of accused said to have been given to him to the
loan taken by accused from the complainant. Accused has
not made any basic foundation of taking such a defence by
replying to the demand notice. Secondly, no any worth
material has been elicited in the cross-examination of
PW.1 to show the transaction between complainant and
DW.1 so that he has an occasion to give the blank signed
cheque of accused to the complainant. Therefore in the
absence of any such rebuttal evidence placed on record by
the accused then presumption in terms of Section 118 of
the N.I.Act regarding passing of consideration covered
under the cheque will have to be accepted. In view of the
reasons stated above, the defence of the accused that he
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has given the blank signed cheque to DW.1 and the same
has been misused by the complainant cannot be legally
sustained.
12. The learned counsel for the Revision Petitioner
has argued that complainant has offered no any
explanation as to the delayed presentation of the said
cheque Ex.P.1. According to the complainant post dated
cheque was issued on the day of taking the loan on
04.07.2007 by showing the date as 09.07.2007. However,
the said cheque was presented for collection by the
complainant through the banker on 02.11.2007. In terms
of Section 138(a) of N.I.Act the holder of cheque can
present cheque for collection within the period of six
months. There is an amendment to the said proviso having
reduced the period from six months to three months with
effect from 01.04.2012. The present transaction is prior to
amendment. Therefore the validity period for presentation
of the cheque is six months and indisputably complainant
has presented the said cheque for collection within the
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period of six months. When the issuance of cheque with
signature of accused is either admitted or proved then it is
for the accused to maintain sufficient balance in his
account whenever the cheque is presented within the
limitation prescribed in terms of Section 138(a) of N.I.Act.
Therefore the non-explanation of delay in presenting the
said cheque cannot be a ground to displace the statutory
presumption available in favour of the complainant.
13. When once issuance of cheque is admitted and
proved by complainant out of evidence of PW.1 and
documents at Exs.P.1 to P.5 then statutory presumption in
terms of Sections 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 placed by accused cannot be
legally sustained, then the statutory presumption will
continue to operate in favour of complainant. The Courts
below have rightly appreciated the oral and documentary
evidence placed on record and justified in holding that the
complaint has proved that accused has committed an
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offence punishable under Section 138 of N.I.Act. The said
findings recorded by the Court below are based on legal
evidence on record.
14. Now coming to the question of imposition of
sentence is concerned. The Trial Court has convicted the
accused for imprisonment of two months and to pay a fine
of Rs.2,70,000/- in default to undergo sentence of
imprisonment for two months. The appeal filed by the
accused in Crl.A.No.103/2012 came to be partly allowed
and the sentence of imprisonment ordered by the Trial
Court has been modified by the First Appellate Court. The
complainant has not challenged the modification of the
sentence ordered by the First Appellate Court. Therefore, I
found no any valid reason to interfere in the findings
recorded by the First Appellate Court in modifying the
sentence and confirming the judgment of Trial Court.
Consequently proceed to pass the following order:
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ORDER
Revision petition filed by the Revision
Petitioner/accused is hereby dismissed as devoid of merits.
Registry to send back the records to Trial Court with
a copy of this order.
SD/-
JUDGE
GSR
