Mr. Suresh Naik vs Mr. Sundeep Kumar
2023 Latest Caselaw 7515 Kant

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                                                  NC: 2023:KHC:39559
                                              CRL.RP No. 261 of 2017




             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                DATED THIS THE 3RD DAY OF NOVEMBER, 2023

                                    BEFORE
                    THE HON'BLE MR JUSTICE ANIL B KATTI
               CRIMINAL REVISION PETITION NO. 261 OF 2017
             BETWEEN:
                MR. SURESH NAIK
                S/O PUTTU NAIK, AGED ABOUT 58 YEARS,
                R/AT KOOSAMMA COMPOUND,
                NEAR PNT QUARTERS,
                BOLAR LEWEL, MANGALURU, D.K.-570 001.

                                                         ...PETITIONER
             (BY SRI. H MALATESH.,ADVOCATE)

             AND:
                MR. SUNDEEP KUMAR
                S/O ISHWARA CHOWTA,
                AGED ABOUT 35 YEARS,
                C/O NIRAMALA SERVICE STATION,
Digitally
signed by       KANKANDI, D.K
SUMITHRA R      MANGALURU-570 001.
Location:
HIGH COURT                                              ...RESPONDENT
OF
KARNATAKA    (BY SRI. ASHOK KUMAR SHETTY, ADVOCATE)

                  THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C,
             PRAYING TO PLEASED TO a) SET ASIDE THE JUDGMENT OF
             CONVICTION DATED 23.05.2014 PASSED BY THE IV JMFC,
             MANGALORE IN C.C.NO.4854/2012 AND b) SET ASIDE THE
             JUDGMENT DATED:17.02.2016 PASSED IN CRL.A.NO.131/2014
             BY THE IV ADDL. DIST. AND S.J., MANGALORE AND c) ACQUIT
             THE ACCUSED BY ALLOWING THE PETITION.
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                                            NC: 2023:KHC:39559
                                        CRL.RP No. 261 of 2017




     THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
                           ORDER

Revision petitioner/accused feeling aggrieved by the

Judgment of First Appellate Court on the file of IV

Additional District and Sessions Judge, Dakshina Kannada,

Mangaluru in Criminal Appeal No.131/2014 dated

17.02.2016 in confirming the Judgement of Trial Court on

the file of IV JMFC, Mangaluru in C.C.No.4854/2012 dated

23.05.2014, 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 the arguments of both sides and on

perusal of Trial Court records with the judgment of both

the Courts below, the following points arise for

consideration:-

i) Whether the impugned Judgment of First Appellate Court which confirmed

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the Judgment of Trial Court is perverse capricious and legally not sustainable ?

ii) Whether interference of this Court is required ?

5. On careful perusal of oral and documentary

evidence placed on record by the complainant, it would

go to show that, accused for his quarry business in the

presence of one Mr. Gregory D'Souza S/o Late. James

D'Souza Kulashekar of Mangalore took hand loan of

Rs.4,40,000/- on 06.11.2008 with an assurance to pay

the same on or before 06.10.2009. Accused not repaid

the said amount to the complainant, complainant has

demanded his money back. Accused in order to discharge

the said loan issued three cheque bearing No. 959831 Ex-

P1 dated 15.12.2009 for Rs.1,50,000/-, cheque bearing

No. 959832 Ex-P2 dated 15.01.2010 for Rs.1,50,000/-,

and cheque bearing No. 959834 Ex-P3 dated 15.01.2010

for Rs.1,40,000/-. Complainant presented all the cheques

drawn on Bharath Co-operative Bank, Hampanakatta

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branch, Mangalore through his banker Canara Bank,

Mahaveera Circle branch, Mangalore. The said cheques

were dishonoured for want of sufficient funds in the

account of accused along with bank endorsements Ex.P.4

to Ex.P.6. Complainant issued demand notice dated

06.05.2010 and same is duly served to the accused on

08.05.2010. However inspite of due service of demand

notice, accused has neither replied to the notice nor paid

the amount covered under the cheques. Therefore,

complaint came to be filed on 09.06.2010. If the above

referred documents are perused and appreciated with the

oral testimony of the complainant PW-1, then it would go

to show that the complainant has complied legal

requirements in terms Section 138 (a) to (c) of the

Negotiable Instrument Act,1881 (hereinafter for brevity

referred to as "N.I.Act".) and the complaint is filed within

time. The records also would reveal that accused has not

disputed issuance of cheques and signature on Ex.P.1 to

Ex.P.3. Therefore, statutory presumption in terms of

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Sections 118 and 139 of N.I.Act will have to drawn in

favour of complainant.

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 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

NC: 2023:KHC:39559 CRL.RP No. 261 of 2017

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

of accused on the account maintained by him is admitted

or proved then statutory presumption in terms of Section

118 and 139 of N.I. Act will have to be drawn.

8. Now, it is up to the accused to place rebuttal

evidence to displace the statutory presumption available in

favour of complainant. It is the defence of the accused

which can be gathered from the evidence of PW-1 during

the course of cross-examination that there was transaction

between the accused and Circle Inspector by name Sri.

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Vishwanath Pandith, who obtained three (3) cheques from

the accused under threat and the said Sri. Vishwanath

Pandith, Circle Inspector used this complainant for filing

present case and there is no any transaction between the

complainant and accused. Further, accused has not taken

any hand loan of Rs.4,40,000/- from the complainant.

Accused in order to probablize his defence can rely on the

materials brought on record through the evidence of

complainant or place his own independent evidence.

9. 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 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

NC: 2023:KHC:39559 CRL.RP No. 261 of 2017

defence. Section 139 imposed an evidentiary burden and not a presumptive burden".

In view of the principles enunciated in this decision, it is

not necessary for the accused to enter the witness box

and give evidence to substantiate his defence. The

accused can also rely on the materials produced by

complainant to displace the initial presumption available in

favour of complainant.

10. In the present case, accused has not chosen to

lead any of his independent evidence. On the contrary, he

has chosen to rely on the material placed by the

complainant. On perusal of the cross-examination of PW-1

it would go to show that, there is nothing worth material

that has been brought on record to substantiate the above

referred defence taken by the accused. Accused has not

brought any material during the cross-examination of PW-

1 regarding the nexus between complainant and Sri.

Vishwanath Pandith, Circle Inspector and circumstances

under which the said Vishwanath Pandith can deliver the

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signed cheques of the accused to the complainant. It is

also pertinent to note that in spite of due service of

demand notice to the accused vide acknowledgement

Ex.P.8 has not replied to the notice by making basic

foundation of the defence now taken by the accused

during the cross-examination of PW-1 on the first available

opportunity. Accused has not chosen to lead his

independent evidence by producing any documents or

placed on record the circumstance to substantiate the

aforesaid defence of the accused. Therefore the mere

suggestions made to PW-1 during the course of his cross-

examination which has been denied by the PW-1, cannot

be accepted as sufficient rebuttal evidence to displace the

initial presumption available in favour of the complainant.

11. Learned counsel for the respondent during the

course of arguments submits that, when the matter was

pending before the First Appellate Court in Criminal

Appeal No.131/2014 on number of occasions time was

taken by submitting that the matter is settled between

the parties. Accused paid sum of Rs.25,000/- on

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12.03.2015 and another amount of Rs.25,000/- was paid

on 10.04.2015. Thus, out of the amount of loan taken by

the accused Rs.50,000/- has been paid by the accused.

The records of the First Appellate Court also would go to

shows that, the memo was filed on 12.03.2015 itself when

the first payment made by the accused before the First

Appellate Court. However, in view of remaining amount

being not paid, the First Appellate Court has decided the

appeal on merits. The said fact further strengthen the case

of the complainant that accused has taken hand loan of

Rs.4,40,000/- from the complainant and in order to

discharge the liability issued the post dated cheques

Ex.P.1 to Ex.P.3. Therefore under these circumstances, it

is not now open for the accused to contend contrary to the

same that there was no any legally enforceable debts. The

material evidence placed on record by the complainant has

been rightly appreciated by the Courts below and justified

in holding that the complainant has proved that the

accused has committed an offence under Section 138 of

the N.I Act. The said findings recorded by both the Courts

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below are based on legal evidence on record and the same

does not call for any interference by this Court.

12. Now coming to the question of sentence is

concerned, the Trial Court has convicted accused for the

offence punishable under Section 138 of the N.I. Act and

sentenced to pay fine of Rs.4,50,000/- and in default of

payment of fine amount shall undergo simple

imprisonment for a period of two years. The offence under

Section 138 of N.I.Act is punishable with imprisonment for

a term which may extend to two years or with fine which

may extend to twice the amount of the cheque, or with

both. The Trial Court has chosen not to impose sentence

of imprisonment and imposed fine. However, the Trial

Court in default of payment of fine imposed sentence of

two years which is the maximum punishment prescribed

for the offences punishable under Section 138 of N.I.Act.

It appears that the Trial Court and the First Appellate

Court has not taken into consideration Section 30 of

Cr.P.C. In terms of Section 30(b) of Cr.P.C., the Court of

Magistrate shall not, where the imprisonment has been

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awarded as part of the substantive sentence, exceed 1/4th

of the term of imprisonment with the Magistrate to

competent to inflict as punishment for the offence

otherwise than as imprisonment in default of payment of

fine. In the present case the Trial Court has not chosen to

impose substantive sentence prescribed for the offence

under Section 138 of N.I.Act. Therefore, fine amount

imposed by the Trial Court with default sentence in terms

of Section 30(b) of Cr.P.C. shall not be in excess of 1/4th

of the term of imprisonment to which the Magistrate is

competent to inflict as punishment for the offence under

Section 138 of N.I.Act.

13. Therefore the default sentence for not paying the

fine amount to two years cannot be legally sustained.

Therefore, the same is required to be modified to the

extent of 1/4th of the sentence which would be for a

period of six months for the offence under Section 138 of

N.I.Act. Therefore, only to the extent of modifying default

sentence, interference of this Court is required.

Consequently, proceed to pass the following :

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NC: 2023:KHC:39559 CRL.RP No. 261 of 2017

ORDER

Revision petition filed by the revision

petitioner/accused is hereby partly allowed.

The Judgment of First Appellate Court on the file of

IV Additional District and Sessions Judge, Dakshina

Kannada, Mangaluru in Criminal Appeal No.131/2014

dated 17.02.2016 in confirming the Judgement of Trial

Court on the file of IV JMFC, Mangaluru in

C.C.No.4854/2012 dated 23.05.2014 ordered to be

modified as under:

The default sentence imposed by the Trial Court for a

period of two years is modified and accused in default of

payment fine amount as ordered by the Trial Court, shall

also under-go simple imprisonment for a period of six

months.

Registry to send back the records to Trial Court with

a copy of this order.

SD/-

JUDGE RL