Karnataka High Court

Smt. Bhuvaneshwari vs Sri Nemiraj on 29 November, 2023

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                                                CRL.RP No. 513 of 2017




             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

               DATED THIS THE 29TH DAY OF NOVEMBER, 2023

                                     BEFORE
                    THE HON'BLE MR JUSTICE ANIL B KATTI
               CRIMINAL REVISION PETITION NO. 513 OF 2017
             BETWEEN:

                 SMT.BHUVANESHWARI
                 W/O RUDRAPPA SHETTY,
                 AGED ABOUT 50 YEARS,
                 RANGANTHA COLONY,
                 OPPOSITE TO GOWRI SHANKAR RICE MILL
                 TALAGUPPA,
                 SAGAR-TALUK
                                                           ...PETITIONER
             (BY SMT.YOGEETHA MUDAKANNAVAS FOR
                 SRI. SWAMY SHIVA PRAKASH H., ADVOCATE)

             AND:

                 SRI.NEMIRAJ
                 S/O MANJUNATH,
                 AGED ABOUT 38 YEARS,
Digitally        SANNIDHI STUDIO,
signed by
SUMITHRA R       ANANDAPURAM,
Location:        SAGAR TALUK
HIGH COURT                                                ...RESPONDENT
OF           (BY SRI.DEEPAK METHRE FOR
KARNATAKA        SRI.HARISH KUMAR M.S., ADVOCATE)

                  THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C., PRAYING TO
             SET ASIDE THE IMPUGNED CONVICTION AND SENTENCE PASSED
             BY THE ADDL. CIVIL JUDGE AND J.M.F.C., SAGAR IN
             C.C.NO.367/2013 DATED 06.02.2017 AND JUDGMENT PASSED
             DATED 20.03.2017 PASSED BY THE V ADDL. DIST. AND S.J.,
             SHIVAMOGGA SITTING AT SAGAR IN CRL.A.NO.10004/2017.

                 THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
             COURT MADE THE FOLLOWING:
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                                             NC: 2023:KHC:43176
                                       CRL.RP No. 513 of 2017




                            ORDER

Revision Petitioner/accused feeling aggrieved by the

judgment of First Appellate Court on the file of

V Addl. District and Sessions Judge, Shivamogga sitting at

Sagar, in Crl.A.No.10004/2017, dated 20.03.2017, in

confirming the judgment of Trial Court on the file of

Addl.Civil Judge and JMFC, Sagar in C.C.No.367/2013,

dated 06.02.2017 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 both the sides and on perusal of Trial

Court Records with judgment of both the Courts below the

following points arise for consideration:

1) Whether the impugned judgment under

revision passed by the First Appellate

Court in confirming the judgment of the

Trial Court for the offence punishable

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under Section 138 of N.I.Act is perverse

capricious and legally not sustainable?

2) Whether any interference by this Court?

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 has taken hand loan of Rs.80,000/- from

complainant on 04.07.2012 and assured to repay the

same within a period of 2 months. However, accused did

not repay the amount to complainant as agreed by her.

Accused in order to discharge legally enforceable debt

issued cheque bearing No.294002 drawn on State Bank of

Mysuru, Sagar Branch dated 06.11.2012 for Rs.80,000/-

Ex.P.1. Complainant has presented the said cheque

through his banker Canara Bank and the same was

dishonored vide Bank endorsement Ex.P.2 as "Funds

Insufficient". Complainant issued demand notice dated

21.12.2012 Ex.P.3 through RPAD and the same is duly

served to the accused on 22.11.2012 Ex.P.4. If the above

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referred document with sequence of dates are appreciated

with the oral testimony of PW.1 then it would go to show

that, cheque issued by accused for lawful discharge of

debt was dishonored for want of sufficient fund in the

account of accused. Accused has admitted her signature

on cheque Ex.P.1 and she has an account in State Bank of

Mysuru, Sagar branch. Complainant has complied

necessary legal requirements in terms of Section 138(a) to

(c). Therefore, statutory presumption in terms of Sections

118 and 139 of Negotiable Instruments Act, 1881(herein

after for brevity referred as "N.I.Act".) will have to be

drawn.

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

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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 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."

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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 Sections

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

8. It is now up to the accused to prove by way of

rebuttal evidence to displace the statutory presumption

available in favour of complainant. In this context of the

matter it would profitable 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

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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".

9. The 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 these

judgments, 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 the witness box to probabilise his

defence.

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10. It is the specific defence of accused that she has

lost the cheque book containing cheque leaves and pass

book and accordingly she intimated to the bank Ex.D.2.

She further claims that on receipt of demand notice issued

by the complainant she came to know that signed cheque

of accused has been misused and as such she filed

complaint before the Police on 14.12.2012 Ex.D.3. In

support of such contention of accused, reliance is placed

on material produced by complainant and also her own

evidence as DW.1 with documents Exs.D.1 to D.3.

11. Accused has not disputed her signature on

cheque Ex.P.1 drawn on State Bank of Mysuru, Sagar

branch where she maintained an account. It is the

contention of accused that she lost the cheque book

containing cheque leaves and also pass book. As such she

has given intimation to the Bank accordingly on

14.09.2012 Ex.D.2. DW.1 during the course of her

evidence has reiterated the said contention that she has

lost the cheque book containing the cheque leaves and the

pass book. On careful perusal of Ex.D.2, the date and time

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is separately written and on the top of the application

there is writing "stop payment" "294001-294025".

Accused during the course of her evidence nor in the reply

given by her to the demand notice Ex.D.2 has offered any

explanation as to who has made such endorsement. It is

for accused to place rebuttal evidence and to offer

explanation as to who made the said endorsement.

Accused could have examined the Bank officials who has

acknowledged Ex.D.2 regarding the endorsement found at

Ex.D.2. If at all those endorsement were made by the

bank officials then on presentation of the cheque by

complainant, it should not have been endorsed as "Funds

Insufficient". On the other hand there is a specific written

reason code "No.20 Payment stopped by drawer'". The

bank authority could have refused to honour the cheque,

since payment was stopped by drawer. Accused in Ex.D.2

claimed that out of the cheque leaves in the cheque book

only one cheque was signed and remaining cheque were

unsigned. If at all accused has lost the entire cheque book

itself then what happened to the remaining cheque, no

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any explanation has been offered by accused nor

examined any bank officials that any of the cheque leaves

found in the lost cheque book were not at all used either

by accused or the person who found the cheque book lost

by accused.

12. Accused filed Police complaint Ex.D.3 on

14.12.2012 admittedly after receipt of demand notice

issued by complainant alleging that accused found the

cheque book and sought for return of the cheque. This

assumption of accused that complainant is in possession of

the cheque book and pass book lost by her is without

there being any basis and the possibility of taking after

thought contention cannot be ruled out. It is also pertinent

to note that accused having given reply to the demand

notice dated 20.12.2012 with Ex.D.1 has not referred

about complainant before the Police Ex.D.3. Therefore, the

allegations made in the reply notice Ex.D.1 dated

20.12.2012 and the one made in the Police complaint

Ex.D.3 dated 14.12.2012 cannot be relied to substantiate

the contention of accused. In so far as the document

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Ex.D.2 said to be an acknowledgement obtained by

complainant having intimated the bank about loss of

cheque book and pass book is not free from the cloud of

doubt regarding the endorsement found on Ex.P.2.

According to the evidence of accused, complainant is

known to her and he is said to have arranged the marriage

of her daughter and she claims to have given his

commission charge of Rs.10,000/-. Therefore, even

according to her own evidence complainant is known to

her. The accused has not brought any circumstances on

record regarding the occasion as to how complainant came

in possession of cheque Ex.P.1. If for the sake of

argument, even if it is assumed that one signed cheque in

the cheque book which she has lost was found by

complainant and if he had intimation to misuse the same,

he would not have mentioned only Rs.80,000/-, he could

have claimed higher amount also. Therefore, the

contention of accused that accused came in possession of

her signed cheque Ex.P.1 which was in the cheque book

lost by her does not stands to any sound reasoning. Thus,

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the accused has failed to probabilise her defence, so as to

displace the statutory presumption available in favour of

the complainant.

13. When once issuance of cheque is admitted and

proved by complainant out of the evidence of PW.1 and

the documents Exs.P.1 to 4, then statutory presumption in

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

drawn in the absence of any rebuttal evidence of accused

or the rebuttal evidence placed by accused cannot be

legally sustained, then statutory presumption will continue

to operate in favour of complainant. The Courts below

have rightly appreciated the oral and documentary

evidence placed on record in holding that complainant has

proved that accused has committed an offence punishable

under Section 138 of N.I.Act. The said findings recorded

by both Courts below are based on legal evidence on

record.

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14. Now coming to the question of sentence imposed

by the Trial Court which is confirmed by the First Appellate

Court would go to show that the Trial Court has sentenced

accused to pay fine of Rs.80,000/-, out of the fine amount

Rs.50,000/- was ordered to be paid to the complainant as

compensation in terms of Section 357 of Cr.P.C. and

remaining Rs.30,000/- is defrayed as prosecution

expenses, in default of payment of fine shall undergo

simple imprisonment for 6 months. On the face of it, the

imposition of sentence as ordered by the Trial Court which

is confirmed by the First Appellate Court cannot be legally

sustained.

15. The offence punishable under Section 138 of

N.I.Act is punishable with imprisonment for a term which

may extend to 2 years or with fine which may extend to

twice the amount of cheque or with both. In the present

case, the Trial Court did not exercise to impose sentence

of imprisonment. However, while awarding the sentence of

fine, the Trial Court has imposed fine less than the cheque

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amount to be paid to the complainant as compensation

and remaining Rs.30,000/- is ordered to be defrayed as

prosecution expenses. It appears that said error has also

lost sight by the First Appellate Court. Therefore, in order

to impose appropriate punishment, the interference of this

Court is required. Looking to the facts and circumstances

of the case, accused is sentenced to pay a fine of

Rs.85,000/- and out of the fine amount in exercise of

power under Section 357 of Cr.P.C. an amount of

Rs.80,000/- is ordered to be paid to the complainant as

compensation and remaining Rs.5,000/- is ordered to be

defrayed as prosecution expenses, in default of payment

of fine amount shall undergo simple imprisonment for 3

months. Only to this extent the order of the Trial Court

which is confirmed by the First Appellate Court is required

to be modified accordingly. Consequently, proceed to pass

the following:

ORDER

Revision Petition filed by the Revision

Petitioner/accused is hereby partly allowed.

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The judgment of the First Appellate Court on the file

of V Addl. District and Sessions Judge, Shivamogga sitting

at Sagar, in Crl.A.No.10004/2017, dated 20.03.2017, in

confirming the judgment of Trial Court on the file of

Addl.Civil Judge and JMFC, Sagar in C.C.No.367/2013,

dated 06.02.2017is ordered to be modified as under:

Accused is sentenced to pay a fine of Rs.85,000/-,

out of the fine amount Rs.80,000/- is ordered to be paid

as compensation and remaining Rs.5,000/- is defrayed as

prosecution expenses, in default of payment of fine

amount shall undergo simple imprisonment for 3 months

in exercising of powers under Section 357 of Cr.P.C.