Karnataka High Court

H Nagesh vs G Manjunath on 5 April, 2024

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                                   CRL.RP No. 102 of 2021


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 05TH DAY OF APRIL, 2024
                       BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 102 OF 2021
BETWEEN:
   H NAGESH
   S/O MUKUNDAPPA
   AGED ABOUT 51 YEARS
   ADVOCATE
   R/O THYAGARAJA ROAD
   SEEBINAKERE POST
   THIRTHAHALLI TALUK - 577 432.
   SHIVAMOGGA DISTRICT.
                                            ...PETITIONER

(BY SRI. S V PRAKASH, ADVOCATE)

AND:
   G MANJUNATH
   S/O GIRIYAPPA
   AGED ABOUT 60 YEARS
   R/O K.B. EXTENSION
   NEAR JAYADEVA CIRCLE
   DAVANAGERE - 577 101.
                                           ...RESPONDENT

(BY SRI. G J SUNKAPUR, ADVOCATE)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED AND ORDER OF
CONVICTION DATED 03.08.2020 PASSED BY THE COURT OF II
ADDITIONAL   DISTRICT   AND    SESSIONS    JUDGE   AT
DAVANAGERE IN CRL.A.NO.96/2013 CONFIRMING THE
JUDGMENT AND ORDER OF CONVICTION DATED 04.09.2013
PASSED BY THE COURT OF III ADDITONAL SENIOR CIVIL
JUDGE AND JMFC, DAVANAGERE IN C.C.NO.43/2010 AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 24.01.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                                -2-
                                           CRL.RP No. 102 of 2021




                              ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order on sentence dated 04-09-2013 in C.C.No.43/2010 on the

file of the III Additional Senior Civil Judge and J.M.F.C.,

Davanagere and its confirmation judgment and order dated

03.08.2020 in Crl.A.No.96/2013 on the file of the II Additional

District and Sessions Judge, Davanagere, has filed this revision

petition seeking to set aside the concurrent findings recorded

by the Courts below, wherein the petitioner / accused was

convicted for the offences punishable under Section 138 of the

Negotiable Instruments Act, 1881 (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. It is the case of the complainant that, both himself

and accused were in good terms and also having acquaintance

with each other. The accused used to visit the house of the

complainant often. Out of the said acquaintance, on

06.02.2008, the accused borrowed a sum of Rs.1,00,000/-

from the complainant as hand loan for his agricultural and

domestic problems. The accused is said to have issued a

cheque dated 10.06.2008 to clear the loan which he had

borrowed. The complainant has presented the cheque for

encashment through his banker, however, the said cheque

came to be dishonoured with a shara as "Account closed" on

14.06.2008. Thereafter, the complainant issued a legal notice

on 10.07.2008 through RPAD and COP. On 11.07.2008, the

notice sent through certificate of posting was served, however,

the notice sent through RPAD was not claimed by the accused

and it was returned to the complainant on 22.07.2008. In spite

of notice having been served to the accused, the accused

neither repaid the amount nor replied to the notice. Therefore,

it is constrained the complainant to lodge a complaint before

the Jurisdictional Magistrate.

4. To prove the case of the complainant, the

complainant examined himself as PW.1 and got marked

Exhibits P1 to P9. On the other hand, the accused examined

himself as DW.1 and got marked Exhibits D1 to D5. The Trial

Court after appreciating the oral and documentary evidence on

record, convicted the accused for the offence stated supra.

Being aggrieved by the same, the accused preferred an appeal

before the Appellate Court and the complainant also preferred

an appeal before the Appellate Court seeking for enhancement

of sentence, however, the Appellate Court dismissed both the

appeals and confirmed the judgment of conviction rendered by

the Trial Court. Being aggrieved by the same, the accused /

petitioner has preferred this revision petition seeking to set

aside the concurrent findings.

5. Heard Shri S.V.Prakash, learned counsel for

petitioner and Shri G.J.Sunkapur, learned counsel for the

respondent.

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

petitioner that, the Courts below failed to consider the

contradictions and omissions which are material in nature and

passed the impugned judgments which are opposed to the facts

and evidence on record and hence, the same is liable to be set

aside.

7. It is further submitted that, the respondent is a

stranger to the petitioner and he has not borrowed any loan

from the complainant. The Trial Court has failed to consider

the defence of the accused and recorded the conviction which is

perverse and illegal.

8. It is further submitted that even though the

complainant has not proved the financial capacity for lending

huge amount to the accused, the Courts below have committed

error in not considering the said defence of the accused. The

accused in his evidence has stated that he is a permanent

resident of Thirthahalli and practicing as an Advocate both in

Shivamogga and Thirthahalli, however, the complainant is the

permanent resident of Davanagere, there is no iota of contact

with the complainant at any moment. In spite of evidence

having been led regarding non-acquaintance with the

complainant, both the Courts have not considered such a plea

which is against to the evidence on record.

9. It is further submitted that the Courts below have

committed error in not considering the defence of the accused

properly. Had the defence of the accused had been considered

by the Courts below, the impugned judgments would not have

been passed, hence, the said judgments are required to be set

aside. Making such submission, learned counsel for the

petitioner prays to allow the revision petition. /

10. Per contra, learned counsel for the respondent /

complainant vehemently justified the concurrent findings of the

Courts below and submitted that, the evidence of the

complainant clearly demonstrated as to how the transaction

had taken place and accused issuing a cheque. In fact,

accused has admitted that cheque belongs to him and signature

has also been admitted by the accused. Such being the fact,

the Courts below had to raise the presumption. Even after

considering the defence evidence of the accused, the Courts

below did not find any convincing evidence of the accused to

rebut the presumption, hence, the defence of the accused was

rejected concurrently by the Courts below. Therefore, it may

not be appropriate to interfere with the said findings unless the

said findings are perverse or illegal.

11. It is further submitted that the financial capacity to

be proved by the complainant only after onus of proof being

shifted to the complainant. Unless the presumption is rebutted,

the complainant need not prove the financial capacity as he has

protected under the presumption. It is needless to say that

initially, the complainant need not prove the case, however, he

has to fulfill the ingredients of Section 138 of N.I. Act. In the

present case, the complainant has fulfilled the ingredients of

Section 138 of N.I. Act and the Courts below have rightly

appreciated the evidence and recorded the conviction.

Therefore, there is no infirmity or illegality in the said findings

and it may not be proper to interfere with the said findings.

Making such submission, learned counsel for the respondent

prays to dismiss the revision petition.

12. After having heard the learned counsel for the

respective parties and also perused the findings of the Courts

below, it is appropriate to refer to the judgment of the Hon'ble

Supreme Court in the case of BASALINGAPPA v.

MUDIBASAPPA1, paragraph No.25 which reads thus:

"25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:

25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

25.2. 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.

25.3. 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

(2019) 5 SCC 418

by the parties but also by reference to the circumstances upon which they rely.

25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.

25.5. It is not necessary for the accused to come in the witness box to support his defence."

13. On careful reading of the dictum of the Hon'ble

Supreme Court, it makes it clear that once execution of the

cheque is admitted, Section 139 of N.I. Act mandates the

presumption that the cheque was issued for the purpose of

discharge of any debt or liability. The accused has to rebut the

said presumption by raising the probable defence. The accused

has option to rebut the presumption by way of either relying on

the evidence led by him or relying on the materials submitted

by the complainant. It is further emphasized that it is not

necessary for the accused to come in the witness box to

support his defence.

14. Having considered the guidelines issued by the

Hon'ble Supreme Court regarding the presumption and its

rebuttal method, it is appropriate to refer to the defence of the

accused to find out as to whether the said defence is sufficient

to rebut the presumption.

15. The accused even after receipt of legal notice, he

did not reply to the notice nor repay the amount. In the cross-

examination of DW.1, he took a defence that the complainant

had no financial capacity to lend the amount of Rs.1,00,000/-

to the accused and further he contended that the cheque in

question was issued to Subramanya who lent a sum of

Rs.20,000/- to the accused. The said cheque was issued to

Subramanya as security for having borrowed the amount of

Rs.20,000/-. Even after clearance of the said amount, the said

cheque was returned to him, however, it was given to

complainant and the complainant presented the same for

encashment even though the said transaction had not taken

place.

16. Although the accused contended that he knew

Prakash, Prakash was his friend and the said Prakash got him

advanced a sum of Rs.20,000/- from Subramanya to the

accused, he has not chosen to examine those two persons as

witnesses to the said transaction. Mere denying the transaction

would not be sufficient to rebut the presumption.

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17. At this point, it is relevant to refer to the judgment

of the Hon'ble Supreme Court in the case of BIR SINGH v.

MUKESH KUMAR2, 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.

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

(2019) 4 SCC 197

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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".

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

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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."

On careful reading of the above dictum of the Hon'ble Supreme

Court, it makes it clear that mere denial of the transaction is not

sufficient to rebut the presumption.

18. Having considered the dictum of the Hon'ble

Supreme Court, I am of the considered opinion that mere denial

of the transaction with the complainant is not sufficient to rebut

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the presumption. Once the presumption is not rebutted, it is

presumed that the accused had issued the cheque for discharge

of debt or other liability. After having considered the evidence

of PW.1 and the defence of the accused, I am of the considered

opinion that both the Courts have not committed any error in