Karnataka High Court
Srinivasa vs Sadiq Pasha on 27 November, 2023
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CRL.RP No. 620 of 2017
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.620 OF 2017
BETWEEN:
SRINIVASA
S/O. KRISHNAPPA,
AGED ABOUT 46 YEARS,
R/O. SRINIVASA NAGARA,
GARUDANAGERE ROAD, ARASIKERE,
HASSAN DISTRICT - 573 201. ... PETITIONER
(BY MS. ANUPAMA D.A. FOR
MR. GIRISH B. BALADARE, ADVOCATES)
AND:
SADIQ PASHA
S/O. TALAK SAAB,
AGED ABOUT 26 YEARS,
Digitally
signed by R/O. J.C. PURA VILLAGE,
SUMITHRA R KANAKATTE HOBLI, ARASIKERE TALUK,
HASSAN DISTRICT - 573 201. ... RESPONDENT
Location:
HIGH
COURT OF (BY MR. JAGADEESH H.T., ADVOCATE)
KARNATAKA
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C., PRAYING TO SET ASIDE THE
JUDGMENT DATED 05.11.2016 PASSED BY THE LEARNED SENIOR
CIIVL JUDGE AND JMFC, ARASIKERE IN C.C.NO.220/2014 BY
CONVICTING THE PETITIONER AND THE SAME ORDER WAS
CONFIRMED BY THE APPELLATE COURT BY DISMISSING THE APPEAL
FILED BY THE PETITIONER, THE JUDGMENT DATED 15.04.2017
PASSED BY THE V ADDL. DISTRICT AND S.J., HASSAN IN
CRL.A.NO.241/2016 AND THE PETITIONER TO BE ACQUITTED FOR
THE OFFENCE ALLEGED AGAINST HIM.
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CRL.RP No. 620 of 2017
THIS PETITION COMING ON FOR FINAL 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 V
Additional District and Sessions Court, Hassan in Criminal
Appeal No.241/2016 dated 15.04.2017 in confirming the
`judgment of Trial Court on the file of Senior Civil Judge
and JMFC, Arasikere in Criminal Case No.220/2014 dated
05.11.2016 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 the Trial Court records, including the
judgment of both the courts below, the following point
arise for consideration:
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(i) Whether the impugned judgment of First
Appellate Court under revision in
confirming the judgment of trial 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 oral and documentary
evidence placed on record, it would go to show that
complainant and accused are known to each other.
Accused approached the complainant on 04.02.2014 for
hand loan of Rs.3,00,000/- and agreed to pay the same
within one month. The accused did not pay the amount as
agreed. When complainant demanded his money, accused
issued cheque bearing No.252274 for Rs.3,00,000/- dated
21.03.2014 drawn on Indian overseas Bank for lawful
discharge of debt. Complainant presented said cheque for
collection through his banker and the same was
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dishonoured vide bank endorsement Ex.P.2 as "funds
Insufficient". Complainant issued demand notice through
"RPAD" dated 01.04.2014 Ex.P.3 and another notice on
the same address through "UCP" Ex.P4. Demand notice
sent through RPAD is returned unserved as addressee is
not residing in the said address with Ex.P5 postal cover
and notice sent through UCP is served to the accused. The
document at Ex.P.7 is the endorsement issued by the Bank
dt. 24.03.2014. Accused has not replied to the demand
notice nor paid the amount covered under the cheque.
6. If the above referred documents are perused and
appreciated with the evidence of PW.1, then, it would go
to show that complainant has complied with all the legal
requirements in terms of Section 138 (a) to (c) of the N.I.
Act and the complaint is filed on 14.05.2014 well within a
period of one month from the date of accrual of cause of
action. Accused has not disputed issuance of cheque with
his signature on the account maintained by him in Indian
Overseas Bank. Therefore, statutory presumption in terms
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of Section 118 and 139 of the N.I. Act will be have to be
drawn in favour of the complainant.
7. 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 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 way of security and same has been
misused by complainant is not tenable.
It is 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
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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
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. It is now upto the accused to prove by way of
rebuttal evidence to displace the statutory presumption
available in favour of the complainant. In this context of
the matter, it is useful to refer the judgment of Hon'ble
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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 defence. Section 139 imposed an
evidentiary burden and not a presumptive
burden".
Further, the Hon'ble Apex Court in its latest
judgment in Rajesh Jain v/s Ajay Singh reported in
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2023 SCC OnLine SC 1275, wherein it has been
observed and held that, once issuance of cheque with
signature of accused is either admitted or proved then,
statutory presumption will have to be drawn in favour of
the complainant.
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.
9. In the present case, accused apart from relying
on the material produced by complainant, also relied on
his own evidence as DW.1. It is the contention of accused
that he has arranged loan to complainant for purchase of
Mahindra Tractor in Sriram Finance. The said Sriram
Finance officials has taken one blank signed cheque as
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security. The said cheque has been misused by
complainant after obtaining the same from Sriram Finance
on sale of Tractor belonging to complainant. Accused has
also contended that demand notice Ex.P3 is not served on
him.
10. Accused in response to the summons issued by
the Court on the address given in the complaint has
appeared through his counsel. Demand notice Ex.P3 and
Ex.P4 were sent on the very same address through RPAD
as well as UCP. Demand notice sent through RPAD has not
been received by the complainant, whereas, notice sent by
complainant to the same address is received by
complainant, since it has not been returned to
complainant. It means that complainant has issued
demand notice on correct address of accused and accused
has deliberately not received demand notice sent through
RPAD. In this context of the matter it is useful to refer to
judgment of Hon'ble Apex Court in C C Alavi Haji vs.
Palapatti Muhammed and Another reported in (2007) 6
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SCC 555 wherein it has been observed and held in para 13
and 14 as under :
"13. According to Section 114 of the Act, read with
Illustration (f) thereunder, when it appears to the
court that the common course of business renders it
probable that a thing would happen, the court may
draw presumption that the thing would have
happened, unless there are circumstances in a
particular case to show that the common course of
business was not followed. Thus, Section 114
enables the court to presume the existence of any
fact which it thinks likely to have happened, regard
being had to the common course of natural events,
human conduct and public and private business in
their relation to the facts of the particular case.
Consequently, the court can presume that the
common course of business has been followed in
particular cases. When applied to communications
sent by post, Section 114 enables the court to
presume that in the common course of natural
events, the communication would have been
delivered at the address of the addressee. But the
presumption that is raised under Section 27 of the
GC Act is a far stronger presumption. Further, while
Section 114 of the Evidence Act refers to a general
presumption, Section 27 refers to a specific
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presumption. For the sake of ready reference,
Section 27 of the GC Act is extracted below:
"27. Meaning of service by post.- Where any
Central Act or Regulation made after the
commencement of this Act authorizes or
requires any document to be served by post,
whether the expression 'serve' or either of
the expression 'give' or 'send' or any other
expression is used, then, unless a different
intention appears, the service shall be
deemed to be effected by properly
addressing, pre-paying and posting by
registered post, a letter containing the
document, and, unless the contrary is
proved, to have been effected at the time at
which the letter would be delivered in the
ordinary course of post."
14. Section 27 gives rise to a presumption that
service of notice has been effected when it is sent to
the correct address by registered post. In view of the
said presumption, when stating that a notice has
been sent by registered post to the address of the
drawer, it is unnecessary to further aver in the
complaint that in spite of the return of the notice
unserved, it is deemed to have been served or that
the addressee is deemed to have knowledge of the
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notice. Unless and until the contrary is proved by the
addressee, service of notice is deemed to have been
effected at the time at which the letter would have
been delivered in the ordinary course of business.
This Court has already held that when a notice is
sent by registered post and is returned with a postal
endorsement "refused" or "not available in the
house" or "house locked" or "shop closed" or
"addressee not in station", due service has to be
presumed. (Vide Jagadish Singh v. Natthu Singh;
State of M.P. v. Hiralal and V.Raja Kumari v.
P.Subbarama Naidu). It is, therefore, manifest that
in view of the presumption available under Section
27 of the Act, it is not necessary to aver in the
complaint under Section 138 of the Act that service
of notice was evaded by the accused or that the
accused had a role to play in the return of the notice
unserved."
Accused has not replied to the demand notice sent
through RPAD and UCP Exs.P.3 and P.4 and not made any
basic foundation on the first available opportunity by
taking defence that he has issued cheque to Sriram
Finance as a security for the loan availed by complainant
for purchasing the Tractor. Accused after his appearance
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before the Court has not made any written communication
stating his defence on which he wants to cross examine
PW.1. It is the primary duty of accused to prove that he
was a surety for the loan availed by complainant from
Sriram Finance for purchasing the Tractor. Accused has
neither produced any documents to substantiate the said
fact nor examined any of the officials of Sriram Finance to
prove the fact that he has issued cheque in question Ex.P1
as a security to Sriram Finance and not to complainant.
11. The complaint allegations and evidence of PW.1
with the above referred documents would go to show that
it is a transaction between complainant and accused. It is
for accused to explain as to how complainant came in
possession of cheque said to have been given by him as
security to Sriram Finance on the loan availed by
complainant. Other than the self-interested oral version of
accused in the form of DW.1, there are absolutely no
material evidence brought on record to prove that accused
has given cheque in question Ex.P1 to Sriram Finance as a
security for loan availed by complainant. It is true that
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DW.1 has claimed in his evidence when he demanded
Sriram Finance for return of his documents given at the
time of loan transaction by complainant to which he stood
as surety, but the finance officials have reported to him
that complainant has taken back the documents produced
by accused. If that is so, nothing has prevented accused to
examine any one of the officials of Sriram Finance to
substantiate his contention that cheque in question Ex.P1
was issued to Sriram Finance as a security for the loan
availed by complainant and he has collected blank signed
cheque from Sriram Finance. In fact, accused has failed to
establish the nexus between issuance of cheque Ex.P1 and
alleged loan transaction of complainant from Sriram
finance. The mere denial of issuing cheque Ex.P 1 in
favour of complainant for lawful discharge of debt itself
cannot be said a sufficient rebuttal evidence. Accused is
expected to probabalise his defence by producing required
evidence either in the form of oral or documentary
evidence. However, accused has not produced any
documents to substantiate his aforesaid defence.
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12. When once issuance of cheque is admitted or
proved by complainant out of the evidence placed on
record which is duly supported by documents Exs.P.1 to
P.6 then, statutory presumption in terms of Section 118
and 139 of the N.I. will have to be drawn. If the accused
fails to prove his defence by placing rebuttal evidence
either during the cross-examination of PW.1 or through his
own evidence then, statutory presumption continues to
operate in favour of complainant. The Courts below have
rightly appreciated the oral and documentary evidence
placed on record and were 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.
14. Now coming to the question of imposition of
sentence. The Trial Court has imposed sentence to pay
fine of Rs.3,03,000/- and out of the fine amount, an
amount of Rs.3,00,000/- was ordered to be paid to the
complainant and remaining amount of Rs.3,000/- defrayed
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as prosecution expenses. In default of payment of fine,
accused shall undergo sentence of S.I. for a period of one
month. The said imposition of sentence has been affirmed
by the first Appellate Court. Looking to the facts and
circumstances of the case even on the question of
imposition of sentence, the same does not call for any
interference by this court. Consequently, proceed to pass
the following:
ORDER
The Revision Petition filed by Revision
Petitioner/accused is dismissed.
Registry to send back the records to Trial Court with
a copy of this order.
SD/-
JUDGE
rs
