Karnataka High Court
Sri R Rajvi vs Sri R Venkatesh on 28 November, 2023
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CRL.A No. 733 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 733 OF 2012 (A)
BETWEEN:
SRI R RAJVI
S/O RATHNAM
AGED ABOUT 38 YEARS
NO. 312, 'IDA COTTAGA'
1ST CROSS, MATHIKERE
BANGALORE - 560 054.
...APPELLANT
(BY SRI. ROHIT URS D., ADVOCATE)
AND:
SRI R VENKATESH
S/O V RAMAKRISHNAPPA
AGED ABOUT 48 YEARS
R/O NO. 16, 8TH CROSS
DEVANARAPALYA
BANGALORE - 560 054.
...RESPONDENT
(BY SRI. M. KRISHNA MURTHY, ADVOCATE)
THIS CRL.A FILED U/S.397 AND 401 OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED 12.04.2012
PASSED BY THE V FAST TRACK (SESSIONS) JUDGE,
BANGALORE IN CRL.A.NO.807/2011 AND UPHOLD THE
JUDGMENT AND ORDER DATED 10.11.2011 PASSED BY THE XII
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BANGALORE, IN C.C.NO.4227/2009 AND ETC.,
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT BEFORE THE PRINCIPAL BENCH AT
BENGALURU ON 30.08.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, BEFORE DHARWAD BENCH,
THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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CRL.A No. 733 of 2012
JUDGMENT
1. This appeal is filed by the appellant/complainant
being aggrieved by the judgment and order of acquittal dated
12.04.2012 in Crl.A.No.807/2011 on the file of the Fast Track
(Sessions) Judge-V at Bengaluru City, wherein the Appellate
Court set aside the judgment of conviction and order of
sentence dated 10.11.2011 in C.C.No.4227/2009 for the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 (for short, 'N.I. Act').
2. The rank of the parties in the Trial Court henceforth
will be considered as it is, for convenience.
Brief facts of the case:
3. The complainant and the accused were friends. The
accused had approached the complainant to borrow the amount
in the month of March, 2008 and borrowed a sum of
Rs.5,00,000/- to meet his business requirements and urgent
necessities and promised that the amount would be repaid at
the earliest. The amount was paid to the complainant on
27.03.2008. The complainant made several efforts to get back
his amount, however, the accused did not repay the amount.
On Several demands having been made, the accused issued a
cheque dated 20.09.2008 for repayment of the loan. The said
cheque was presented for encashment on 01.10.2008. The said
cheque came to be dishonoured as "funds insufficient" on
03.10.2008. A notice came to be issued both by RPAD and
Under Certificate of Posting (UCP) on 30.10.2008. The notice
sent through RPAD was returned unserved as not claimed and
notice sent through UCP is considered as deemed service. Even
after receipt of legal notice, the accused has not chosen to
reply to the legal notice nor repaid the amount. Hence, the
complainant filed a complaint before the Jurisdictional
Magistrate.
4. To prove the case of the complainant, the
complainant examined himself as PW1 and also got examined
another witness as PW2 and got marked 6 documents as
Exs.P1 to P6. On the other hand, the accused examined himself
as DW1 and got examined another witness as DW2 and also
got marked 7 documents as Exs.D1 to D7. The Trial Court after
appreciating the oral and documentary evidence on record,
recorded the conviction stating that the cheque and the
signature are admitted and the Court has raised the
presumption under Section 139 of N.I. Act. However, in the
appeal filed by the appellant/accused, the Appellate Court has
set aside the judgment of conviction. The notice issued to the
accused relating to dishonour of cheque has not duly served to
the correct address of the respondent.
5. Heard Sri Rohit Urs D., learned for the appellant
and Sri M.Krishna Murthy, the learned counsel for the
respondent. Perused the records.
6. It is the submission of the learned counsel for the
appellant that the judgment and order of acquittal recorded by
the Appellate Court is perverse, illegal and the same is liable to
be set aside. It is further submitted that inspite of legal notice
having been served through Under Certificate of Posting, the
Appellate Court failed to take note of the same and held that
Section 138(b) of N.I. Act has not been complied and the
proceedings held to be vitiated, which appears to be incorrect
and the Appellate Court failed to take note of provision under
Section 114 of the Indian Evidence Act and also Section 27 of
the General Clause Act.
7. It is further submitted that the Appellate Court
failed to take note of the presumption available under Section
139 of N.I. Act. The respondent/accused admitted both the
signature and issuance of the cheque, however denied the
transaction.
8. Once issuance of the cheque and signature are
admitted, the Court has to raise the presumption mandatorily.
Having failed to take note of the said aspect resulted in passing
the impugned judgment, which is required to be set aside.
Making such submission, learned counsel for the
appellant/complainant prays to allow the appeal.
9. Per contra, learned counsel for the respondent
vehemently justified the judgment and order of Appellate Court
in setting aside the judgment of conviction and order of
sentence passed by the Trial Court and submitted that issuance
of notice contemplated under Section 138(b) of N.I. Act is one
of the essential ingredients for the offence punishable under
Section 138 of N.I. Act. When the issuance of the notice is not
proved, the entire proceedings could be vitiated. The Appellate
Court considering that the legal notice was not served, set
aside the judgment of conviction passed by the Trial Court.
10. It is further submitted that the complainant had
failed to prove the transaction and also not established the
legally enforceable debt or liability. Considering the said aspect,
the Appellate Court reversed the judgment of conviction passed
by the Trial Court. Hence, the judgment and order of acquittal
passed by the Appellate Court is appropriate which is not
required to be interfered.
11. After having heard the learned counsel for the
respective parties and also perused the findings of the
Appellate Court in reversing the judgment of conviction and
order of sentence passed by the Trial Court, the points which
would arise for my consideration are:-
i. Whether the findings of the Appellate Court in
recording the acquittal by setting aside the
judgment of conviction and order of sentence
passed by the Trial Court is sustainable?
ii. Whether the appellant has made out grounds to
interfere with the said findings?
12. Points No.1 and 2:- This Court being the First
Appellate Court in order to ascertain both facts and law, it is
necessary to appreciate both facts and law. However, there is
a rider by the statute that in a case of appeal against acquittal,
the Appellate Court has to interfere only where it is noticed the
perversity in the findings of the Trial Court or Appellate Court.
Having considered the legal aspect in respect of appeal against
acquittal, it is necessary to have cursory look upon the
evidence of witnesses.
13. PW1 being the complainant has categorically stated
that the respondent/accused had borrowed Rs.5,00,000/- from
him on 27.03.2008 and assured that the amount would be
repaid within short period, however, he did not repay the
amount. When the complainant asked to refund the amount,
the accused had issued a cheque dated 20.09.2008. When it
was presented for encashment, the said cheque was
dishonoured as "insufficient funds". The complainant brought to
the notice of the accused regarding dishonour of cheque
through legal notice. However, the accused neither issued reply
to the said notice nor repaid the amount. Hence, the complaint
is filed by the complainant before the jurisdictional Magistrate.
14. The contention of the accused at the initial stage is
that he has not received notice and notice was not issued to the
correct address of the accused. Further, he has contended that
the complainant has failed to establish the existence of legally
enforceable debt. Now it is relevant to refer to the provision of
Section 138(b) of N.I. Act which reads as under:-
"(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for the
payment of the said amount of money by giving a notice
in writing, to the drawer of the cheque, (within thirty
days) of the receipt of information by him from the bank
regarding the return of the cheque as unpaid."
15. On reading of the above said provision, it makes it
clear that notice in respect of dishonour of cheque has to be
issued to the drawer of the cheque. Admittedly, in the present
case, the complainant has issued a notice regarding dishonour
of the cheque. Whether the said notice is served or whether it
was issued to the correct address of the drawer of the cheque
is the moot question which is required to be answered. The
contention of the respondent/accused is that he was the owner
of Jagadamba Auto Consultancy situated at No.7, Muni
Lakshmamma Compound, Devanarapalya, HMT Road, II Phase,
Bengaluru-52. As per his evidence, he has stopped his business
in the year January, 2008. Further, he has stated that he was
not running any business at No.15/1, Ground Floor, Next to
St.Paul Beauty Parlour, Gokul 2nd Stage, 2nd Main, HMT Road,
Devanarapalya, Bengaluru-52. In order to substantiate his
case, DW1 got examined another witness as DW2 who is the
owner of shop premises, wherein DW1 was inducted as a
tenant of the premises of DW2. DW2 in his evidence endorsed
the evidence of DW1 and stated that DW1 was doing business
in the premises and vacated the said premises in the month of
January, 2008. As per the evidence of the complainant, he had
issued Ex.P3-legal notice wherein the address mentioned as
"M/s Jagadamba Auto Consultants, No.15/1, Ground Floor, Next
to St.Paul Beauty Parlour, Gokula Ist Stage, IInd Main, H.M.T.
Road, Devendraplaya, Bangalore-560054." It is obvious that
the said notice was not served to the respondent. Now, it is
relevant to take note of the order sheet of the Trial Court. The
respondent entered his appearance to the Trial Court and
appeared before the Trial Court. Ex.P6 is the complaint. The
address of the respondent is similar to that of Ex.P3-legal
notice. The Trial Court issued summons, it was served to the
respondent and the respondent appeared before the Trial Court
and contested the matter. Once he appeared before the Court
after summons being served, he is estopped from contending
that notice is not served which was issued by the complainant
regarding dishonour of cheque.
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16. My view has been fortified by the Hon'ble Supreme
Court in the case of C.C.Alavi Haji V/s Palapetti
Muhammed and another1, Paragraph No.17 held as under:
"17. It is also to be borne in mind that the
requirement of giving of notice is a clear departure
from the rule of criminal law, where there is no
stipulation of giving of a notice before filing a
complaint. Any drawer who claims that he did not
receive the notice sent by post, can, within 15 days
of receipt of summons from the court in respect of
the complaint under Section 138 of the Act, make
payment of the cheque amount and submit to the
court that he had made payment within 15 days of
receipt of summons (by receiving a copy of
complaint with the summons) and, therefore, the
complaint is liable to be rejected. A person who
does not pay within 15 days of receipt of the
summons from the court along with the copy of the
complaint under Section 138 of the Act, cannot
obviously contend that there was no proper service
of notice as required under Section 138, by ignoring
statutory presumption to the contrary under
Section 27 of the GC Act and Section 114 of the
Evidence Act. In our view, any other interpretation
of the proviso would defeat the very object of the
legislation. As observed in Bhaskaran case [(1999)
7 SCC 510 : 1999 SCC (Cri) 1284] if the "giving of
notice" in the context of Clause (b) of the proviso
was the same as the "receipt of notice" a trickster
(2007) 6 SCC 555
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cheque drawer would get the premium to avoid
receiving the notice by adopting different strategies
and escape from legal consequences of Section 138
of the Act."
17. On careful reading of the dictum of the Hon'ble
Supreme Court, it makes it clear that when the address
mentioned in the cause title of the complaint is similar to the
legal notice and if the respondent received the summons from
the Court and appeared before the Court, on receipt of
summons, he cannot claim that he has not received the notice
contemplated under Section 138(b) of N.I. Act. In other words,
he is estopped from claiming that no notice was served to him.
18. Regarding the other liability is concerned, DW1 has
contended that he has not received any financial assistance
from the complainant and he did not issue the cheque. Except
denial, the accused/respondent has not produced any
documentary evidence or any other witness to show that he
had not borrowed loan and cheque was not issued to the
complainant/appellant.
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19. Now, it is relevant to refer to the judgment of the
Hon'ble Supreme Court in the case of Kishan Rao V/s
Shankargouda2 Paragraph No.20 reads thus:
"20. This Court held that the accused may
adduce evidence to rebut the presumption, but
mere denial regarding existence of debt shall not
serve any purpose. The following was held in para
20: (Sharma Carpets case [Kumar
Exports v. Sharma Carpets, (2009) 2 SCC 513 :
(2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] ,
SCC p. 520)
"20. ... The accused may adduce direct
evidence to prove that the note in question
was not supported by consideration and that
there was no debt or liability to be discharged
by him. However, the court need not insist in
every case that the accused should disprove
the non-existence of consideration and debt
by leading direct evidence because the
existence of negative evidence is neither
possible nor contemplated. At the same time,
it is clear that bare denial of the passing of the
consideration and existence of debt,
apparently would not serve the purpose of the
accused. Something which is probable has to
be brought on record for getting the burden of
proof shifted to the complainant. To disprove
the presumptions, the accused should bring
(2018) 8 SCC 165
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on record such facts and circumstances, upon
consideration of which, the court may either
believe that the consideration and debt did not
exist or their non-existence was so probable
that a prudent man would under the
circumstances of the case, act upon the plea
that they did not exist. ..."
20. In another case in the case of Bir Singh V/s
Mukesh Kumar3 Paragraph No.18, 20 and 24 reads as under:
"18. In passing the impugned judgment and
order dated 21-11-2017 [Mukesh Kumar v. Bir
Singh, 2017 SCC OnLine P&H 5352], the High Court
misconstrued Section 139 of the Negotiable
Instruments Act, which mandates that unless
the contrary is proved, it is to be presumed that the
holder of a cheque received the cheque of the
nature referred to in Section 138, for the discharge,
in whole or in part, of any debt or other liability.
Needless to mention that the presumption
contemplated under Section 139 of the Negotiable
Instruments Act, is a rebuttable presumption.
However, the onus of proving that the cheque was
not in discharge of any debt or other liability is on
the accused drawer of the cheque.
20. Section 139 introduces an exception to
the general rule as to the burden of proof and shifts
the onus on the accused. The presumption under
(2019) 4 SCC 197
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Section 139 of the Negotiable Instruments Act is a
presumption of law, as distinguished from
presumption of facts. Presumptions are rules of
evidence and do not conflict with the presumption
of innocence, which requires the prosecution to
prove the case against the accused beyond
reasonable doubt. The obligation on the prosecution
may be discharged with the help of presumptions of
law and presumptions of fact unless the accused
adduces evidence showing the reasonable
possibility of the non-existence of the presumed
fact as held in Hiten P. Dalal [Hiten P.
Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 :
2001 SCC (Cri) 960] .
24. In K.N.Beena v. Muniyappan [K.N.Beena
v. Muniyappan, (2001) 8 SCC 458 : 2002 SCC (Cri)
14] , this Court held that in view of the provisions
of Section 139 of the Negotiable Instruments Act
read with Section 118 thereof, the Court had to
presume that the cheque had been issued for
discharging a debt or liability. The said presumption
was rebuttable and could be rebutted by the
accused by proving the contrary. But mere denial or
rebuttal by the accused was not enough. The
accused had to prove by cogent evidence that there
was no debt or liability. This Court clearly held that
the High Court had erroneously set aside the
conviction, by proceeding on the basis that
denials/averments in the reply of the accused were
sufficient to shift the burden of proof on the
complainant to prove that the cheque had been
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issued for discharge of a debt or a liability. This was
an entirely erroneous approach. The accused had to
prove in the trial by leading cogent evidence that
there was no debt or liability."
21. On careful reading of the dictums of the Hon'ble
Supreme Court, it makes it clear that the complainant is
protected under Section 139 of N.I. Act. It is presumed that
the complainant has received the cheque for the legally
enforceable debt or liability unless contrary is proved. The said
presumption is rebuttable, the accused has to rebut the
presumption by leading cogent evidence i.e., the initial burden
lies on the accused to rebut the presumption. However mere
denial is not sufficient.
22. On careful reading of the above proposition of law,
the accused in this case except bare denial of the transaction,
he has not produced any documents to substantiate the
contention and moreover the accused has stressed with regard
to non-service of notice. When the service of notice has been
answered affirmatively by considering the dictum of the Hon'ble
Supreme Court in the case of C.C.Alavi Haji stated supra, it
can be inferred that the findings of the Appellate Court in
respect of service of notice which appears to be erroneous and
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inappropriate. Therefore, the order of acquittal passed by the
Appellate Court is required to be set aside. The findings of the
Trial Court in respect of the conviction appears to be
appropriate. Therefore, it is required to be confirmed.
23. In the light of the observation made above, the
points which arose for my consideration are as under:-
Point No.(i) - In the 'Negative';
Point No.(ii) - In the 'Affirmative' .
24. Hence, I proceed to pass the following:
ORDER
i) The Criminal Appeal is allowed.
ii) The judgment and order of acquittal dated
12.04.2012 passed in Criminal Appeal No.807/2011
by the Court of Fast Track (Sessions) Judge-V,
Bangalore City, is set aside.
iii) The judgment of conviction and order of sentence
dated 10.11.2011 passed in C.C.No.4227/2009 by
the Court of XII Addl.Chief Metropolitan Magistrate
at Bangalore City is hereby confirmed.
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iv) The registry is directed to send the records to the
Trial Court along with copy of the judgment for
execution of sentence in accordance with law.
Sd/-
JUDGE
CLK/Bss
