Karnataka High Court
Pradeep Kumar H M vs S Ravikumar on 28 November, 2023
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CRL.RP No. 597 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 597 OF 2017
BETWEEN:
PRADEEP KUMAR H.M.,
S/O H. MANJUNATH,
AGED ABOUT 35 YEARS,
OCC: AGRICULTURIST,
R/O CHIKKENAHALLI VILLAGE,
CHITRADURGA TALUKA,
CHITRADURGA DISTRICT - 577 501.
...PETITIONER
(BY SRI. P.B. UMESH, ADVOCATE FOR
SRI. R.B.DESHPANDE, ADVOCATE)
AND:
S. RAVIKUMAR,
Digitally S/O H. SHARANAPPA,
signed by AGED ABOUT 44 YEARS,
SUMITHRA R OCC: AGRICULTURE,
Location: R/O CHIKKENAHALLI VILLAGE,
HIGH COURT CHITRADURGA TALUKA,
OF CHITRADURGA DISTRICT - 577 501.
KARNATAKA ...RESPONDENT
(BY SMT. SPOORTHY HEGADE NAGARAJA, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 03.05.2017 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN
CRL.A.NO.20/2017 MODIFYING THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 07.12.2016 PASSED BY
THE I ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C.,
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CRL.RP No. 597 of 2017
CHITRADURGA IN C.C.NO.134/2015 AND ACQUIT THE
PETITIONER OF CHARGES LEVELED AGAINST HIM.
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 1st
Additional District and Sessions Judge, Chitradurga in
Crl.A.No.20/2017 dated 03.05.2017 by confirming the
judgment of trial Court on the file of 1st Additional Senior
Civil Judge and JMFC, Chitradurga in C.C.No.134/2015
dated 07.12.2016, 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 on both sides.
4. After hearing the arguments on both sides and
on perusal of trial Court records, so also the judgments of
both Courts below, the following points arise for
consideration:
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1) Whether the impugned judgment under
revision petition passed by the first
Appellate Court in confirming the
judgment of Trial Court for the offence
under Section 138 of the N.I. Act is
perverse, capricious and legally not
sustainable?
2) Whether the interference of this Court is
required?
5. On perusal of oral and documentary evidence
placed on record by complainant, it would go to show that
complainant and accused are the residents of same village
and they are friends, as such they knew each other.
Accused has taken hand loan of Rs.5,00,000/- from the
complainant to meet his family necessity and assured to
pay the said amount within two and half months.
Complainant has paid Rs.5,00,000/- on 01.05.2014.
Accused in order to discharge legally enforceable debt,
issued cheque bearing No.914949 for Rs.5,00,000/- drawn
on State Bank of India, Chitradurga Branch-Ex.P-1.
Complainant presented the said cheque for collection
through his banker. The same was dishonoured vide Bank
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endorsement - Ex.P-2. Complainant Bank informed
accordingly to the complainant vide Ex.P-3. Complainant
issued demand notice dated 04.08.2014 - Ex.P4 through
RPAD and postal receipt is produced at Ex.P4(a) and the
acknowledgement card at Ex.P4(b). 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 legal requirements in terms of Section 138(a) to
138(c) of Negotiable Instrument Act, 1881 (hereinafter
referred to as 'NI Act' for short). Accused inspite of due
service of notice, has neither replied to the demand notice
nor paid the amount covered under the cheque.
Therefore, complainant has filed complaint on 02.09.2014
within a period of one month in terms of Section 142(B) of
NI Act. When complainant has proved issuance of cheque
with signature of accused on the account maintained by
him, then statutory presumption in terms of Section 118
and 139 of NI Act will have to be drawn.
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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
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
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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 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
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accused to come in witness box in support of
his defence. Section 139 imposed an
evidentiary burden and not a presumptive
burden".
9. In another latest decision of 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
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 the materials submitted by
complainant. It is not necessary for the accused to step
into witness box to probabilise his defence.
10. In the present case, accused inspite of due
service of demand notice-Ex.P4 vide acknowledgment-
Ex.P4(b), has neither replied to the demand notice nor
paid the amount covered under the cheque. Accused after
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his appearance before the trial Court before seeking
permission of the Court to cross examine PW-1, has not
made any written communication disclosing his defence on
which he wish to cross examine PW-1, the said material
placed on record would go to show that accused on the
first available opportunity has not made any basic
foundation disclosing his defence.
11. On perusal of cross examination of PW-1, it
would go to show that the complainant has got sufficient
source of income for mobilizing the funds covered under
the cheque. Accused has not placed any rebuttal evidence
to disprove the said fact. It has also been suggested in
cross-examination of PW-1 that cheque was given to one
Vedamurthy and the same has been misused by the
complainant to file this case and there was no transaction
between complainant and accused, the same has been
denied by the complainant. The mere denial of transaction
by accused during the cross examination of PW-1, it
cannot be said as sufficient rebuttal evidence to displace
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the statutory presumption available in favour of
complainant. Accused during the course of his 313 Cr.P.C.
statement has also not offered any explanation as to how
the complainant came in possession of cheque covered
under Ex.P1. In the absence of any explanation or
rebuttal evidence, the contention of accused that the
cheque was issued by him to one Vedamurthy and the
same has been misused by complainant to file this false
complaint cannot be legally sustained.
12. When once the issuance of cheque with
signature of the accused on the account maintained by
him, is either admitted or proved by the complainant and
the same is duly supported by the documents Ex.P1 to P4,
then statutory presumption in terms of Section 118 and
139 of NI Act will have to 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
the complainant. The Courts below have rightly
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appreciated the evidence on record. The said findings
recorded by both Courts below are based on evidence on
record.
13. Now coming to the question of sentence, the
trial Court has sentenced the accused to pay fine amount
of Rs.10,00,000/- and in default to undergo simple
imprisonment for one year. Out of the said fine amount,
Rs.9,00,000/- was ordered to be given to complainant as
compensation in terms of Section 357(3) of Cr.P.C. The
First Appellate Court has modified the fine amount
imposed by the trial Court for the reasons recorded in
paragraph 39 of its judgment. The modification of
sentence as ordered by the first Appellate Court is
supported by the evidence on record. Therefore, even on
the question of sentence also, the modified sentence as
ordered by the First Appellate Court does not call for any
interference. Consequently, I proceed to pass the
following:
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ORDER
Revision petition filed by the revision petitioner is
hereby dismissed as devoid on merits.
Registry to send back the records of the trial Court
along with copy of this order.
SD/-
JUDGE
CPN
CT:SNN
