Karnataka High Court
Smt V Chandrakala V vs Smt Kanickmerry on 27 November, 2023
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CRL.RP No. 1045 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO.1045 OF 2015
BETWEEN:
SMT. V. CHANDRAKALA V,
W/O GANGADHAR,
AGED ABOUT 37 YEARS,
WORKING AT DR. AMBEDKAR INSTITUTE
OF TECHNOLOGY,
TELECOMMUNICATION SECTION,
MALLATHALLI, RING ROAD,
BANGALORE - 560 048.
...PETITIONER
(BY SRI. ANAND R V., ADVOCATE)
AND:
SMT. KANICKMERRY,
W/O LATE J. JOHN,
AGED ABOUT 49 YEARS,
R/AT NENNAPU NILAYA,
Digitally 1ST MAIN, 8TH CROSS,
signed by GANDHINAGAR, MANDYA - 571 401.
SUMITHRA R ...RESPONDENT
Location:
HIGH COURT (BY SRI.KARTHIK K SHANKARAPPA, ADVOCATE FOR
OF M/S. S. SHANKARAPPA ASSTS., ADVOCATES)
KARNATAKA
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION PASSED AGAINST THE PETR. ON 14.10.2014 IN
C.C.NO.20882/2013 ON THE FILE OF XXI A.C.M.M.,
BANGALORE AND ALSO SET ASIDE THE JUDGMENT AND
ORDER DATED 04.07.2015 PASSED IN CRL.A.NO.1246/2014
ON THE FILE OF THE LXIII ADDL. CITY CIVIL AND S.J.,
BANGALORE CITY (CCH-64) AND ACQUIT THE PETR./ACCUSED.
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CRL.RP No. 1045 of 2015
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 LXIII Addl.
City Civil & Sessions Judge, Bangalore City (CCH-64) in
Crl.A.No.1246/2014 dated 04.07.2015 confirming the
judgment of trial court on the file of XXI Addl. Chief
Metropolitan Magistrate, Bangalore, dated 14.10.2014 has
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 the sides.
4. After hearing the arguments of both the sides
and on perusal of judgment of both the Courts below, the
following points arise for consideration:
(i) Whether the impugned order under
revision in confirming the judgment of trial
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court for the offence punishable under
Section 138 of Negotiable Instruments Act,
1881, is perverse, capricious and legally
not sustainable:
(ii) Whether any interference of this Court is
required?
5. On careful perusal of the oral and documentary
evidence placed on record, it would go to show that the
complainant and accused are known to each other.
Accused in the month of January 2013 approached the
complainant for financial assistance of Rs.15,00,000/-.
Complainant took sometime and she agreed to arrange
Rs.11,00,000/-. Complainant has paid a sum of
Rs.11,00,000/- to the accused in the month of January
2013 and accused agreed to pay interest at 2% p.a.
Further she undertook to pay the said amount as early as
possible within one month. However, the accused did not
pay the amount as agreed. Complainant asked the
accused to pay the money back and accused for lawful
discharge of debt, issued cheque bearing No.525634 dated
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28.03.2013 for Rs.11,22,000/- drawn on Karnataka State
Co-operative Apex Bank Ltd. Ex.P.1. Complainant
presented the said cheque through her banker - Indian
Overseas Bank. The cheque issued by the accused was
dishonoured vide Bank endorsement as "payment stopped
by the drawer" Ex.P-3 and accordingly, the complainant's
Bank informed the same through Ex.P-2. The complainant
issued demand notice dated 25.04.2013 Ex.P-4 through
Registered Post Acknowledgement Due and postal receipt -
Ex.P-5. The demand notice issued by complainant is duly
served to the accused Ex.P-6. The accused inspite of due
service of notice, has neither replied to the notice nor paid
the amount covered under the cheque. Complainant has
filed the complaint on 04.06.2013. The above referred
documents are perused and appreciated with the evidence
of PW1, it would go to show that the complainant has
complied necessary legal requirement in terms of Section
138(a) to 138(c) of Negotiable Instruments Act, 1881 (for
short 'N.I. Act'). The accused has not disputed the
issuance of cheque with her signature on the account
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maintained in Karnataka State Co-operative Apex Bank
Ltd., Bengaluru. Complainant has filed the present
complaint in terms of Section 142(b) of N.I. Act.
Therefore, statutory presumptions 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'ble 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 the cheque is admitted,
there is always a presumption in favour of the complainant
that there exist legally enforceable debt or liability. Plea
by accused that cheque was given in 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:-
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"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."
8. 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 her is admitted
or proved, then statutory presumption in terms of Sections
118 and 139 of N.I. Act will have to be drawn.
9. It is now upto the accused to place rebuttal
evidence to displace the statutory presumption available in
favour of the complainant in terms of Sections 118 and
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139 of N.I. Act and the burden of placing rebuttal evidence
to displace the statutory presumption is on the accused.
10. 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. 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 defence. Section 139
imposed an evidentiary burden and not a
presumptive burden".
11. The Hon'ble Apex Court in the latest decision in
RAJESH JAIN vs. AJAY SINGH reported in 2023 SCC
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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.
12. In view of the principles enunciated in both the
aforementioned judgments 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.
13. In the present case, it is the specific defence of
accused that she has given blank signed cheque as
security for loan of Rs.2,00,000/-, which she has taken
from the complainant. Learned counsel for revision
petitioner/accused during the course of his arguments also
contended that no specific date is pleaded in the complaint
as to when money of Rs.11 Lakhs was given to the
accused and secondly, source of income of the
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complainant has not been proved. The accused in order to
probabilise the said defence apart from relying on the
material brought on record during the course of cross
examination of PW1, also relied on her own evidence as
DW1. The said defence of accused has to be appreciated
with the material evidence placed on record.
14. The complainant in the complaint averments
has pleaded about the month and year on which she has
given money of Rs.11,00,000/- to the accused. It is true
that no specific date is mentioned in the complaint. There
is no legal requirement to specifically plead the date on
which loan was given to the accused. The issuance of
cheque with signature of the accused is not disputed by
the accused. It is the defence of accused that she has
taken hand loan of Rs.2,00,000/- from the complainant
and as a security for the said loan, she has given blank
signed cheque to the complainant and the same has been
misused by the complainant. The accused has not replied
to the demand notice Exhibit.P-4 inspite of due service of
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demand notice vide acknowledgement card Exhibit.P-6.
The accused on the first available opportunity has failed to
make any basic foundation of the defence which she has
taken during cross examination of PW1. The accused has
also not given particulars during the course of her
evidence as to when she has taken hand loan of
Rs.2,00,000/- from the complainant and the date on which
she has given blank signed cheque to the complainant. In
all probability, the alleged transaction of accused about
she having taken loan of Rs.2,00,000/- must have taken
prior to the present transaction in the month of January
2013. The accused apart from not furnishing any
particulars as to when she has taken hand loan of
Rs.2,00,000/- from the complainant, also has not taken
any steps against the complainant for misusing the blank
signed cheque alleged to have been given by her and the
same has been misused by the complainant. The accused
even during the course of her evidence before the trial
court, also did not give any particulars as to what action
she has taken against the complainant for misusing the
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blank signed cheque given by her. Therefore, the said
defence taken for the first time by the accused during
cross examination of PW1, without there being any
corroborative documents to that effect, the defence of
accused that she has given blank signed cheque to
complainant as a security for loan of Rs.2,00,000/- is
taken from the complainant, cannot be legally sustained.
15. It is true that there was no written document
evidencing the loan transaction claimed by complainant,
except the defence of accused herself that she has taken
loan of Rs.2,00,000/- from the complainant and at that
time also, no document was taken by the accused
evidencing the said transaction. It means that
complainant and the accused had the financial transactions
between them and the accused used to borrow loan from
the complainant without any written document evidencing
such transaction.
16. The accused has challenged the financial
capacity of complainant to lend huge money of
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Rs.11,00,000/- as loan to the accused. This defence was
not made known to the complainant by making any basic
foundation by giving reply to the demand notice Ex.P-4
inspite of due service of same Ex.P-6. The accused has
not chose to avail the first available opportunity to put
forth her defence so that it can give an opportunity to the
complainant to prove the fact of her source of income and
also as to how she mobilized the funds to lend loan to the
accused.
17. Complainant/PW1 during course of her evidence
stated that she has pledged her gold articles and
mortgaged the house and the said money has been given
to the accused. It is true that complainant has not
produced any documents to that effect. Undisputedly,
accused is working as Assistant Professor in Dr.Ambedkar
College and was aware of the worldly affairs and also the
consequences of issuing blank signed cheque. The
accused has pleaded her ignorance about the avocation of
her husband. Complainant has offered an explanation
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regarding the circumstances under which she has given
loan amount to the accused. The accused along with her
husband was running chit fund business and due to
urgency made out by the accused, she arranged money by
mortgaging the house and pledged her ornaments. The
said fact has not been denied by the accused during her
evidence before the Court. Therefore, it will have to be
accepted that the complainant has got the capacity to
mobilize the fund of Rs.11,00,000/- to pay loan to the
accused. The accused is highly educated and working as
Assistant Professor in Dr.Ambedkar College and aware of
consequences in issuing blank signed cheque. However,
inspite of such background, she did never questioned
about the complainant misusing her blank signed cheque
by taking any legal action against the complainant. The
accused has not denied that she has taken loan from the
complainant, but only claims that she has taken
Rs.2,00,000/- loan and not Rs.11,00,000/- as claimed by
the complainant. However, apart from the oral testimony
of accused in the form of DW1, there are no other material
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evidence brought on record by the accused to probabilize
her defence.
18. The material brought on record during cross
examination of PW1 and in the evidence of her as DW1,
would not be sufficient to probabilize the defence of
accused that she has taken loan of Rs.2,00,000/- and as a
security for the said loan, issued blank signed cheque, so
also complainant has no financial capacity, cannot be
legally sustained.
19. When once issuance of cheque is admitted and
proved by complainant out of evidence of PW1 and
documents at Exs.P1 to Ex.P-6, then statutory
presumption in terms of Section 118 and 139 of N.I. Act
will have to be drawn in the absence of any rebuttal
evidence of accused or when the rebuttal evidence placed
by the 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
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justified in holding that the complainant has proved that
accused has committed an offence punishable under
Section 138 of N.I. Act. The said findings recorded by the
Court below are based on legal evidence on record.
20. Now coming to the question of imposition of
sentence is concerned, the trial court has sentenced the
accused to pay a fine of Rs.11,32,000/- and out of it,
Rs.11,22,000/- is ordered to be paid to the complainant by
way of compensation and remaining amount of
Rs.10,000/- is ordered to be defrayed as prosecution
expenses. Looking to the period for which the accused
has withhold the money due to the complainant, the
imposition of sentence also does not call for any
interference. Consequently, I proceed to pass the
following:
ORDER
Criminal Revision Petition filed by the revision
petitioner is hereby dismissed devoid of any merits.
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Registry to send back the records to trial court with
the copy of this order.
SD/-
JUDGE
DR
