Karnataka High Court

Sri. Muniraju vs C. Harish on 4 April, 2024

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                                 CRL.RP No. 1042 of 2019


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 04TH DAY OF APRIL, 2024
                       BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 1042 OF 2019
BETWEEN:
   SRI MUNIRAJU
   S/O NARAYANAPPA
   AGED ABOUT 39 YEARS
   WORKING AT NO.25, 7TH CROSS
   GAREBHAVI PALYA
   NEAR ST. MARY'S SCHOOL
   HOSUR MAIN ROAD
   BENGALURU - 560 068.
                                            ...PETITIONER

(BY SRI. NARAYAN M, ADVOCATE)

AND:
   C. HARISH
   S/O VENKATARAMANA D
   AGED ABOUT 34 YEARS
   R/AT NO.46, 16TH MAIN
   J.C.NAGARA, KURUARA HALLI
   BENGALURU - 560 086.
                                          ...RESPONDENT

(BY SRI. SUNIL KUMAR PATEL, ADVOCATE)

      THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT/ORDER
DATED 15.06.2019 PASSED BY LXV ADDITIONAL CITY CIVIL
AND SESSION JUDGE, BENGALURU IN CRL.A.NO.734/2017
AND ORDER DATED 11.04.2017 PASSED BY THE XVIII
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU
IN C.C.NO.28450/2015 AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 23.01.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                                   -2-
                                           CRL.RP No. 1042 of 2019


                                ORDER

1. This Criminal Revision Petition is filed by the petitioner,

being aggrieved by the judgment of conviction and order

of sentence dated 11.04.2017 in C.C.No.28450/2015 on

the file of the XVIII Additional Chief Metropolitan

Magistrate, Bengaluru and its confirmation judgment and

order dated 15.06.2019 in Crl.A.No.734/2017 on the file

of the LXV Additional City Civil and Sessions Judge,

Bengaluru, seeking to set aside the concurrent findings

recorded by the Courts below, wherein the petitioner /

accused is convicted for the offence punishable under

Section 138 of the Negotiable Instruments Act (for short

'N.I Act').

2. The ranks of the parties in the Trial Court will be

considered henceforth for convenience.

Brief facts of the case are as under:

3. As per the averments of the complaint, both the

complainant and the accused were known to each other.

Both were working together in S.V.R Motors for a period

of two years. The complainant was working as an Adviser

in the said company and the accused was working in the

car washing section. The accused is said to have

borrowed a sum of Rs.2,50,000/- as a hand loan for the

family necessities and also for the medical expenses of

his father who was hospitalized. The said amount was

given to the accused in the month of March, 2015. The

accused had assured that he would repay the amount

within a period of three months, however, towards

repayment of the said amount, the accused was said to

have issued a cheque on 19.06.2015 for a sum of

Rs.2,50,000/-. When the cheque was presented for

encashment on 08.07.2015, it was returned with a shara

as 'Refer to drawer' and it was brought to the knowledge

of the accused. The accused again insisted and requested

the complainant to present the said cheque for

encashment. Accordingly, on 10.08.2015, the cheque

which was presented again for encashment, the said

cheque came to be dishonoured with a shara as 'Refer to

drawer'. The legal notice dated 21.08.2015 was issued

as per Ex.P4. Ex.P5 is the postal receipt. Ex.P6 is the

unclaimed postal cover with endorsement as 'door locked'

on 22.08.2015, enquiry was made and on 24.08.2015

finally it came with a shara as 'insufficient address' and

returned to the sender on 25.08.2015. Thereafter, it is

constrained the complainant to file a complaint before the

Jurisdictional Magistrate.

4. To prove the case of the complainant, the complainant

examined himself as PW.1 and got marked six documents

as Exs.P1 to P6. On the other hand, the accused

examined himself as DW.1 and got marked one document

as per Ex.D1. The Trial Court after appreciating the oral

and documentary evidence on record recorded the

conviction and sentenced the accused / petitioner herein

to pay a sum of Rs.2,60,000/- in default, he shall

undergo simple imprisonment for a period of four

months. Being aggrieved by the same, the petitioner

herein had preferred an appeal before the Appellate

Court, the Appellate Court confirmed the order passed by

the Trial Court and dismissed the appeal. Hence this

revision petition.

5. Heard Shri Narayan.M, learned counsel for the petitioner

and Shri Sunil Kumar Patel, learned counsel for the

respondent.

6. It is the submission of learned counsel for the petitioner

that the judgment of conviction and order of sentence

passed by the Trial Court and its confirmation order

passed by the Appellate Court are perverse, illegal and

opposed to facts and law. Hence, the same is liable to be

set aside.

7. It is further submitted that the Courts below have not

considered the defence raised by the accused regarding

the transaction. The accused has raised the probable

defence that in the year 2012 when the accused was

working along with the complainant at S.V.R Motors, he

borrowed a loan of Rs.10,000/- and issued a signed blank

cheque as a security for the amount which he had

borrowed. However, despite clearing the loan, the

complainant did not return the cheque. The accused

being the friend of the complainant, did not ask him to

return the cheque.

8. It is further submitted that the complainant has failed to

establish the advancement of the loan in the year 2015.

However, the Trial Court and the Appellate Court

recorded the conviction without following the procedure

which is erroneous and the said conviction has to be set

aside.

9. It is further submitted that the Courts below failed to

take note of the manner in which the presumption and

also the manner in which the onus would be shifted to the

complainant properly and recorded the conviction which

is not proper, therefore, the said conviction is

unsustainable. Making such submission, the learned

counsel for the petitioner prays to allow the revision

petition.

10. Per contra, the learned counsel for the respondent

vehemently justified the concurrent findings and

submitted that the issuance of the cheque and signature

are admitted by the accused. Even though the accused

had taken a contention that the cheque was issued as a

security when he had borrowed the amount of

Rs.10,000/- in the month of November, 2012, the said

aspect has been negatived by the Courts below and the

accused has failed to produce any document to show that

he had borrowed Rs.10,000/- in the year 2012. Further,

he has not made any efforts to get back his cheque from

the complainant. Mere stating that he had borrowed

Rs.10,000/- in order to deceive the present transaction is

not sufficient to rebut the presumption. Therefore, the

Courts below have rightly appreciated the evidence, both

oral and documentary on record, and recorded the

conviction and interference with the said concurrent

findings may not be appropriate. Making such

submission, the learned counsel for the respondent prays

to dismiss the revision petition.

11. After having heard learned counsel for the respective

parties and also perused the findings of the Courts below

in recording the conviction, it is relevant to take note of

the proposition of law in respect of the Negotiable

Instruments Act.

12. It is a settled principle of law that the accused has to

rebut the presumption by leading cogent evidence, once

the ingredients of Section 138 of N.I Act are proved by

the complainant. The presumption in respect of existence

of debt or liability would always be in favour of the

complainant.

13. In the present case, both the accused and the

complainant were working in the same Company. The

accused was said to have borrowed a sum of

Rs.2,50,000/- in the month of March, 2015. A cheque

was issued to the complainant to clear the loan which the

accused had borrowed. When it was presented on second

time, it came to be dishonoured. Therefore, a case came

to be registered against the accused after following the

procedure established under the law.

14. The accused contended that he had borrowed a sum of

Rs.10,000/- in the year 2012 and the present cheque was

issued as a security for the amount which he had

borrowed. Mere making a bald and baseless defence,

would it be sufficient to rebut the presumption is the

moot question which is required to be considered. To

consider the said aspect, it is relevant to refer to the

proposition of law set out by the Hon'ble Supreme Court

in the case of BIR SINGH v. MUKESH KUMAR1,

paragraph Nos.18 to 24 read thus:

"18. In passing the impugned judgment and order dated 21-11-2017, 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.

19. In Hiten P. Dalal v. Bratindranath Banerjee, this Court held that both Sections 138 and 139 require that the court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in State of Madras v. A. Vaidyanatha Iyer, this Court held that it was obligatory on the court to raise this presumption.

(2019) 4 SCC 197

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 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.

21. Presumption of innocence is undoubtedly a human right as contended on behalf of the respondent-accused, relying on the judgments of this Court in Ranjitsing Brahmajeetsing Sharma v.

State of Maharashtra and Rajesh Ranjan Yadav v. CBI. However the guilt may be established by recourse to presumptions in law and presumptions in facts, as observed above.

22. In Laxmi Dyechem v. State of Gujarat, this Court reiterated that in view of Section 139, it has to be presumed that a cheque was issued in discharge of a debt or other liability but the presumption could be rebutted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption. This Court held "however, this presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act".

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23. In Kumar Exports v. Sharma, this Court reiterated that there is a presumption that every negotiable instrument duly executed, is for discharge of a debt or liability, but the presumption is rebuttable by proving the contrary. In the facts and circumstances of the case it was found that the cheque in question was towards advance for purchase of carpets, which were in fact not sold by the payee of the cheque to the drawer, as proved from the deposition of an official of the Sales Tax Department, who stated that the payee had admitted that he had not sold the carpets.

24. In K.N. Beena v. Muniyappan, 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 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."

15. On careful reading of the above dictum of the Hon'ble

Supreme Court, it makes it clear that a bare denial of the

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transaction is not sufficient to rebut the presumption.

Having considered the dictum of the Hon'ble Supreme

Court, in the present case, the accused except stating

that he had borrowed an amount of Rs.10,000/- from the

complainant and issued a cheque as security, no other

documents have been produced to substantiate his

defence. Therefore, I am of the considered opinion that

the accused has failed to rebut the presumption. As he

could not rebut the presumption, the onus to prove the