Karnataka High Court

Ismail S/O Peersab Nadaf vs C. H. Srinivas S/O Satyanarayan on 2 April, 2024

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                                                       CRL.A No. 100014 of 2023




                      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 2ND DAY OF APRIL, 2024

                                              BEFORE

                               THE HON'BLE MR JUSTICE ANIL B KATTI

                             CRIMINAL APPEAL NO. 100014 OF 2023 (A-)


                   BETWEEN:

                   ISMAIL S/O PEERSAB NADAF
                   AGE: 39 YEARS, OCC: MESTRI,
                   R/O SHIRAHATTI, TQ: SHIRAHATTI,
                   DIST: GADAG-581107.

                                                                     ...APPELLANT
                   (BY SRI SANTOSH B. MALLIGAWAD, ADVOCATE)

                   AND:

                   C. H. SRINIVAS S/O SATYANARAYAN,
                   AGE: 45 YEARS, OCC: SUB CONTRACTOR,
                   R/O HOSAKERI CAMP, TQ: GANGAVATI,
                   DIST: KOPPAL-583231.

                                                                   ...RESPONDENT
Digitally signed   (BY SRI C.S. SHETTAR, ADVOCATE)
by SAROJA
HANGARAKI
Location: HIGH
COURT OF
KARNATAKA                 THIS CRIMINAL APPEAL IS FILED U/SEC. 378(4) OF CR.P.C.
DHARWAD
BENCH              SEEKING TO SET ASIDE THE JUDGMENT DATED 28.10.2022 PASSED
DHARWAD
                   BY THE CIVIL JUDGE AND JMFC, LAXMESHWAR SHIRAHATTI IN
                   C.C.NO. 493/2020, OFFENCES PUNISHABLE U/SEC. 138 OF N.I. ACT.


                          THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                       CRL.A No. 100014 of 2023




                           JUDGMENT

Appellant/complainant feeling aggrieved by judgment

of Trial Court on the file of Civil Judge and JMFC,

Laxmeshwar sitting at Shirahatti in C.C.No.493/2020

dated 28.10.2022 preferred this appeal.

2. Parties to the appeal 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 records, so also the impugned judgment

under appeal, the following points arise for consideration:

(i) Whether the impugned judgment of Trial Court in acquitting the accused for the offence under Section 138 of N.I. Act is perverse, capricious and legally not sustainable?

(ii) Whether interference of this Court is required?

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5. On careful perusal of oral and documentary

evidence placed on record, it would go to show that the

accused was working as sub-contractor under

Gopalkrishna contractor. The main contractor Gopalkrishna

had taken contract work for construction of Government

Degree College at Kundagol and Annigeri under whom the

accused was working as sub-contractor. Complainant was

hired by the accused for centering, bar bending and

goundi work for construction of Government College at

Kundagol and Annigeri. Complainant has accepted the

work of accused at the rate of Rs.200 per sq.ft. for college

building work at Kundagol and Rs.210 per sq.ft. for the

college building construction at Annigeri and total amount

of both work was Rs.21,75,870/-. Accused has paid

Rs.16,05,870/- from time to time and due to the tune of

Rs.5,70,000/-.

5(a). Accused in order to discharge the legally

enforceable debt issued cheque bearing No.000180 drawn

on ICICI Bank, Hosakeri Branch for Rs.5,70,000/- dated

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03.02.2020 Ex.P.1. Complainant presented the said

cheque for collection through his banker State Bank of

India, J.T.Matt Road, Gadag and the same was dishonored

as 'refer to drawer' vide bank endorsement Ex.P.2.

Complainant issued demand notice through RPAD dated

27.02.2020 Ex.P.3. Postal receipt for having sent the

demand notice through RPAD is produced as EX.P.4 and

the demand notice is duly served to the accused vide

acknowledgment card Ex.P.5. The accused is registered as

construction worker as per the card issued by the

Department Ex.P.6 and the family particulars Ex.P.7. The

notebook is produced at Ex.P.8. If the aforementioned

documents are perused and appreciated with the oral

testimony of PW.1, then it would go to show that

complainant has complied all necessary legal requirements

in terms of Section 138(a) to (c) of Negotiable

Instruments Act, 1881 (hereinafter referred to as 'N.I. Act'

for the sake of brevity). Thereafter, the complainant has

filed the complaint on 19.05.2020 within a period of one

month from the date of accrual of cause of action.

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Therefore, statutory presumption in terms of Sections 118

and 139 of N.I. act will have to be drawn in favour of

complainant.

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 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

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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."

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. Now, it is

up to the accused to place rebuttal evidence to displace

the statutory presumption available in favour of the

complainant.

8. It is now up to the accused to displace the

statutory presumption available in favour of complainant.

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The accused either can rely on the materials already

produced by the complainant or to lead his own evidence

to displace the statutory presumption available in favour of

complainant. 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 accused to come in witness box in support of his defence. Section 139 imposed an evidentiary burden and not a presumptive burden".

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In view of the principles enunciated in this judgment,

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 has not led any of

his independent evidence. On the other hand, he has

relied on the materials produced by the complainant and

the admissions of PW.1 brought on record during the

course of his evidence. The Trial Court has recorded the

following grounds in acquitting the accused.

     (i)    Complainant    has        not    produced    any
            documents     to    show        the   transaction

between the complainant and accused in accepting the work for the amount stated in the complaint.

(ii) There is no any reference in the notebook Ex.P.8 with signature of accused that he has made the payment.


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     (iii) The   contract    work        of     constructing
           Government     College   at        Kundagol   and

Annigeri was taken by one Gopalkrishna and there is no any contract between complainant and Gopalkrishna for doing any work of contract of the college.

(iv) There are no any documents evidencing the transaction between the complainant and accused.

10. Learned counsel for the appellant has argued

that when once the issuance of cheque with signature of

accused on the account maintained by him is either

admitted or proved, then in the absence of any rebuttal

evidence the contention of accused that he has not issued

the cheque Ex.P.1 for lawful discharge of debt cannot be

legally sustained. In support of such contention, reliance is

placed on the Co-ordinate Bench judgment of this Court in

Prakash vs. Ravi Torasa Miskini in Criminal Appeal

No.100121/2020 dated 25.07.2023, wherein this Court

has not accepted the defence of accused in misplacing the

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cheque and the rebuttal evidence placed on record by the

accused is insufficient to displace statutory presumption

available in favour of complainant. Therefore, the

judgment of acquittal passed by the Trial Court came to be

set aside.

11. In the present case, the complaint allegations

would go to show that the accused has entered into an

agreement with the complainant who was working as sub-

contractor under the main contractor Gopalkrishna for

construction of Government College at Kundagol and

Annigeri. The complainant has not produced any basic

documents to show that accused was working as sub-

contractor under the main contractor Gopalkrishna. It has

been elicited in the cross-examination that tender for

construction of Government College at Kundagol and

Annigeri was obtained by Gopalkrishna. PW.1 claimed that

at the time of transaction between himself and

Gopalkrishna, accused, Suresh and Srinivas were also

present. PW.1 now tried to establish that there was

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contract between himself and Gopalkrishna which is

contrary to the one pleaded in the complaint allegations.

Complainant has not examined either Suresh or Srinivas

before whom the documents were executed assigning the

contract work to the complainant. PW.1 in paragraph No.3

of his cross-examination admits that he has not seen

physically the main contractor Gopalkrishna and he has

not talked with him about any contract work. PW.1 further

admits that he is not an income tax assessee, further he

has not seen any documents that accused was working as

sub-contractor under Gopalkrishna. PW.1 further claims

that the main contractor Gopalkrishna was making dairy

entry regarding payments made to him. Complainant at

belated stage has produced the alleged dairy Ex.P.8 said

to have been in the writing of Gopalkrishna. Looking to the

complaint allegations, it is evident that there was no any

privity of contract between the complainant and

Gopalkrishna. Secondly, the signature of accused is not

found in Ex.P.8 for having made payments. Therefore,

Ex.P.8 cannot be of any much help to the case of

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complainant to prove that he has undertaken any contract

work from Gopalkrishna. Otherwise also the said evidence

of PW.1 is contrary to the pleading in the complaint

averments that accused has entered into contract with

complainant for doing centering, bar bending and mestri

work. It has been elicited in the cross-examination of PW.1

at paragraph No.8 that accused was working as supervisor

and used to visit the construction sites of Government

College at Kundagol and Annigeri. The said admission of

PW.1 will create serious doubt in the claim of complainant

that the accused has entered into a contract with

complainant and assigned the work as stated in the

complaint. Muchless there are no any document to

corroborate the said claim of complainant. PW.1 has also

further admitted in the cross-examination that there is no

reference of Ex.P.6 to P.8 in the demand notice Ex.P.3.

12. If the aforementioned evidence brought on

record in the cross-examination of PW.1 are taken into

consideration, then it would go to show that there are no

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any documents produced by the complainant regarding the

existence of privity of contract between the complainant

and accused for undertaking the work of centering, bar

bending and mestri work. Secondly, the evidence of PW.1

is contrary to the one claimed as per the complaint

allegations. Thirdly, complainant has not produced any

documents regarding the entrustment of work by the

accused and part payment made by him and fourthly the

accused has failed to establish the nexus between account

book Ex.P.8 with the alleged work assigned by the accused

as claimed in the complaint and lastly, when according to

the complainant the accused has entered into a sub-

contract with the complainant to perform the work as

claimed in the complaint then necessarily there must have

be some document and the said documents are not

produced and no any reference is forthcoming either in the

pleadings or through the evidence of PW.1. The said

material brought on record in the cross-examination of

PW.1 would create serious doubt regarding issuance of

cheque Ex.P.1 for lawful discharge of debt. In this context

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of the matter, it is profitable to refer the latest judgment

of Hon'ble Apex Court in Rajaram S/o Sriramulu Naidu

(Since Deceased) through L.Rs. Vs. Maruthachalam

(Since deceased) through LRs. reported in 2023

LiveLaw (SC) 46 wherein it has been observed and held

that :

"The standard of proof for rebutting the presumption is that of preponderance of probabilities- once the execution of cheque is admitted, Section 139 of the N.I Act mandates a presumption that the cheque was for the discharge of any debt or other liability - The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities- To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence- inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely."

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In view of the principles enunciated in the

aforementioned judgment of Hon'ble Apex Court,

accused has to probabalise his defence based on the

preponderance of probabilities.

13. Accused has probabalised his defence in view of

aforementioned evidence on record that cheque in

question was not issued to the complainant for lawful

discharge of debt. The standard of proof regarding the

defence of accused is not beyond reasonable doubt. It is

sufficient, if accused could able to probabalise the defence