A P Rajagopal vs K M Shubha
2024 Latest Caselaw 3593 Kant

Karnataka High Court

A P Rajagopal vs K M Shubha on 7 February, 2024

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                                    CRL.A. No. 206 of 2014


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 7TH DAY OF FEBRUARY, 2024

                          BEFORE
        THE HON'BLE MR JUSTICE ANIL B KATTI
         CRIMINAL APPEAL No.206 OF 2014 (A)
BETWEEN:

A.P.RAJAGOPAL
S/O.PUTTASWAMY,
AGED ABOUT 65 YEARS,
BEKKESOLDUR VILLAGE,
VIRAJPET TALUK,
KODAGU DISTRICT-571 218
                                              ...APPELLANT
(BY SRI. NIHAL, ADVOCATE FOR
    SRI. B.S.SACHIN, ADVOCATE)

AND:

K.M.SHUBHA
W/O. DR.CHANDRU,
AGED ABOUT 49 YEARS,
COORG DENTAL CLINIC,
VIRAJPET ROAD, SIDDAPURA,
KODAGU DISTRICT-571 218
                                            ...RESPONDENT
(BY SRI. MANU PRABHAKAR KULKARNI, ADVOCATE)

       THIS APPEAL IS FILED UNDER SECTION 378(4) CR.P.C,
PRAYING TO SET ASIDE THE JUDGMENT DATED 21.11.2013
PASSED BY THE II ADDL. DIST. AND S.J., KODAGU, MADIKERI
(SITTING AT VIRAJPET) IN CRL.A.NO.34/11 AND RESTORE THE
JUDGMENT DATED: 30.08.2011 PASSED BY THE C.J., AND JMFC,
PONNAMPET IN C.C.NO.819/2010.

       THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
05.01.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
                                -2-
                                         CRL.A. No. 206 of 2014


                          JUDGMENT

Appellant/complainant feeling aggrieved by judgment

of First Appellate Court on the file of II Addl.District and

Sessions Judge, Kodagu Madikeri (sitting at Virajpet) in

Crl.A.No.34/2011, dated 21.11.2013 in reversing the

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

Ponnampet in C.C.No.819/2010, dated 30.08.2011

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 arguments of both sides and on

perusal of Trial Court records, so also the impugned

judgment under appeal, the following points arise for

consideration:

1) Whether the impugned judgment under appeal passed by First Appellate Court in reversing the judgment of Trial Court is perverse, capricious and legally not sustainable?

2) Whether interference of this Court is required?

5. On careful perusal of oral and documentary

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

father of accused Madahaiah is neighbour of complainant

and as such he know the accused and her family for long

time. Accused is Dentist by profession and married to

Dr.Chandru resident of Siddapura. Accused during third

week of July 2008 approached complainant for hand loan

of Rs.1,00,000/-. Complainant gave hand loan of

Rs.1,00,000/- to accused. Accused in order to discharge

said legally enforceable debt issued post dated cheque

bearing No.414523 dated 05.03.2009 drawn on SBI

Virajpet branch Ex.P.1. Accused promised complainant

that she will arrange for funds by first week of March

2009. In the meantime accused issued false notice against

complainant dated 19.01.2009 alleging that accused has

given blank signed cheque as security for her father's case

and the complainant has suitably replied to the said

notice. Complainant presented the said cheque through his

banker Canara Bank Ex.P.3 and the same was dishonoured

vide bank endorsement dated 16.03.2009 Ex.P.2 as

"Insufficient funds". However on the said day accused

approached complainant and pleaded some time. Hence,

believing on the words of accused, complainant

re-presented the cheque on 16.04.2009 and the same was

dishonoured vide Bank intimation Ex.P.4 dated 16.04.2009

and the same was intimated by banker of complainant

Canara Bank dated 22.04.2009 Ex.P.5. Complainant issued

demand notice dated 24.04.2009 Ex.P.8 through RPAD

and under certificate of posting as per the postal receipt

and UCP certificate Ex.P.10 and Ex.P.11. The demand

notice is duly served to the accused Ex.P.12, accused has

replied to the demand notice Ex.P.9 dated 02.05.2009 by

reiterating the same contentions stated in Ex.P.6. The said

documents were marked by Trial Court at the time of

recording sworn statement of complainant.

6. After the appearance of accused while recording

the evidence, it is only the cheque Ex.P.1, endorsement of

bank Ex.P.2, demand notice Ex.P.3 AD card Ex.P.4, receipt

of UCP Ex.P.5 and notice issued by accused is marked as

Ex.P.6. Complainant admittedly has replied to the notice of

accused dated 11.02.2009 Ex.P.7. Hence, documents

marked on behalf of complainant while recording the

sworn statement are referred, since the same are not

disputed by accused.

7. If the evidence of PW.1 and the aforementioned

documents are perused and appreciated, then it would go

to show that, complainant has complied necessary legal

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

Negotiable Instruments Act, 1881 (herein after for brevity

referred to as "N.I.Act"). The complaint is filed on

15.05.2009 within a period of one month from the date of

accrual of cause of action in terms of Section 142(1)(b) of

N.I.Act. Therefore, statutory presumption in terms of

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

favour of complainant.

8. In this context of the matter, it is useful to refer

the judgment of Hon'ble 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 of cheque with 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.

9. 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 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.

10. It is the specific defence of accused in the

notice issued to complainant dated 19.01.2009 Ex.P.6 that

she has issued blank signed cheque as security for

settlement of dispute between complainant and her father

who was convicted in cheque bounce case in

C.C.No.1060/2002. However, the negotiation for

settlement was failed and therefore accused has issued

notice dated 19.01.2010 Ex.P.6 for return of blank signed

cheque bearing No.414523 given to the complainant.

However, the said notice is duly replied by complainant

dated 11.02.2009 Ex.P.7. The complainant though admits

about pendency of appeal before Sessions Court, Madikeri

against the judgment of conviction in C.C.No.1060/2002

against father of accused, but specifically denies that

accused has issued cheque Ex.P.1 as a security for

settlement of case in C.C.No.1060/2002 between

complainant and her father. Complainant has contended

that the transaction between complainant and her father is

different and the transaction covered under Ex.P.1 is

different. Accused to probabilise her defence has not

entered into witness box, but chose to rely on the material

evidence produced by complainant.

11. 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".

12. The Hon'ble Apex Court in it's latest judgment

in Rajesh Jain v/s Ajay Singh reported in 2023 SCC

OnLine SC 1275, wherein it has been observed and held

that, once issuance of cheque with signature of accused is

either admitted or proved then, statutory presumption will

have to be drawn in favour of the complainant.

In view of the principles enunciated in both the

aforementioned 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.

13. Learned counsel for complainant argued that

accused kept quite for more than two years without

mentioning the cheque Ex.P.1 was given as security for

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settlement of dispute between her father and complainant.

Secondly, the case is still pending before Sessions Court,

thirdly accused has not disputed the signature on the

cheque Ex.P.1 and lastly accused has not given any stop

payment instruction to the banker. Therefore, the contrary

defence setup by accused in the notice issued by her

Ex.P.6 dated 19.01.2009 cannot be legally sustained.

14. Per contra, learned counsel for accused has

argued that complainant has not mentioned date and time

of giving hand loan to the accused, secondly financial

position of complainant has not been proved, thirdly,

Income Tax returns has not been filed to prove the loan

transaction claimed by complainant, fourthly, accused and

her husband both are Dentist by profession and had no

occasion to avail loan of Rs.1,00,000/- and lastly accused

has issued notice dated 19.01.2009 Ex.P.6 for return of

the cheque bearing No.414523 given by accused to the

complainant as security for settlement of dispute between

complainant and her father which was subject matter in

C.C.No.1060/2002.

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15. Learned counsel for complainant relied on the

judgment of Hon'ble Calcutta High Court in Subrata Bose

Vs. Mithu Ghosh in Crl.A.No.685/2018, dated

07.11.2022. The Hon'ble Calcutta High Court after

referring three judgments of Hon'ble Apex Court in 1)

Tedhi Singh Vs. Narayan DassMahant reported in

2022 (6) SCC 735. 2) Basalingappa Vs. Mudibasappa

reported in 2019 (5) SCC 418 and Rangappa Vs.

Sri.Mohan reported in 2010 (11) SCC 441 has recorded

finding in para 10 as under:

"In this case the accused did not adduce any evidence nor did she rely upon any documentary materials to rebut the prosecution or the complainant's case. As such the aforesaid three judgments of the Hon'ble Supreme Court assumes importance in view of the fact that all the questions which were confronted relate to source of funds of the complainant and the capacity of the complainant to give such money to the accused neither any document has been relied upon by the defence to show that there cannot be such due nor the signature in the cheque has been disputed. Thus, it would be very difficult for a Court to accept rebuttal of the statutory presumption available under the provisions of the Negotiable

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Instruments Act. The issues which weighed with the Appellate Court in acquitting the accused that the complainant has not been able to prove that the cheque was issued by the convict/appellants in discharge of his liability or any legal enforceable debt; the reasons for coming to such a conclusion is because of the complainant in cross-examination has neither given the date, month or the year when the loan was given nor had be obtained any receipt from the accused; the amount of loan has neither been reflected in the income tax return of the complainant nor has it been in the books of account; on the contrary the cheque in question was signed by the accused with the different ink and the particulars regarding the date, name and money it has been filled up in the cheque which has been indifferent ink, no chit of paper has been produced by the complaint in support of the transaction of a huge sum of Rs.9,70,000/-. Such infirmities according to the appellate Court are sufficient to draw inference regarding the probability of defence of the accused that he has not issued the cheque for discharging the liability and the Magistrate Court erroneously banking upon Sec.139 of the N.I.Act to arrive at its finding of guile.

The aforesaid observations of the appellate Court are beyond the scope of appreciating evidence in respect of provisions relating to adjudication of offence under Sec.138 of the

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N.I.Act. Sec. 139 of the N.I.Act is a statutory presumption which carries with it an expression "unless the contrary is proved". The test of proportionality in such cases must guide the determination of the issue of rebuttal. As such what is required for the accused to do in such case is to raise a probable defence. It cannot be a probable defence that the complainant has no capacity to pay the money until and unless an initial defence is set up by a reply notice or the accused examines his witness and relies upon documentary evidence. In this case the signature in the cheque also has not been challenged, no evidence to that effect is reflected in the cross-examination of PW.1 (the sole witness in this case). Further, no materials have been produced to show as to how the cheque was in possession of the complainant as there are no allegations of lost cheque or the signature in the cheque being forged. Although it is permitted in a case of such nature to raise a probable defence from the available materials in the cross- examination of the prosecution witness only, but the nature of the cross-examination and the probable defence raised by the accused do not qualify as a rebuttal to the provisions under Sec.139 of the N.I.Act and the learned Appellate Court unnecessarily resorted to the issue of difference in ink as no case has been made out by the accused for the cheque having been lost or the same was obtained by coercion".

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Hon'ble Calcutta High Court having so observed set

aside the concurrent finding of both the Courts below in

acquitting the accused. This decision is complete answer

for the above referred contention raised by counsel for

accused.

16. Learned counsel for complainant has placed

reliance on the Co-ordinate Bench Judgment of this Court

in Gajanan s/o Kallappa Kadolkar Vs. Appasaheb

Siddamallappa Kaveri in Crl.R.P.No.2011/2013 dated

18.11.2022. This Court after referring the judgment of

Hon'ble Apex Court and also Co-ordinate Bench Judgment

of this Court has recorded finding in para 21.2 as under:

"21.2 Hence, the said contravention of Section 269 SS of the Income Tax Act does not make the alleged transaction void. The concerned authorities can take necessary action against the complainant for non compliance of Section 269 of the Income Tax Act. Only on that ground, this Court cannot interfere with the impugned judgment passed by the Courts below".

Therefore, the contention of learned counsel for

accused that non declaration of the loan given to accused

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in the Income Tax returns cannot be valid ground to

disown the liability covered under the cheque Ex.P.1.

17. Learned counsel for respondent relied on the

judgment of Hon'ble Apex Court in Rajesh Jain Vs. Ajay

Singh reported in (2023) 10 SCC 148, wherein it has

been observed and held in para 41 and 42 as under:

"41. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes:

the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'.

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42. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e. oral and documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact."

18. Learned counsel for accused relied on the Co-

ordinate Bench Judgment of this Court in

Narasimhegowda C.M. (Since deceased Legal Heir)

Vs. Smt.Deepthi R w/o Nagabhushana in

Crl.A.No.910/2011 dated 11.01.2023. This Court after

appreciating the evidence on record in the said case has

confirmed the judgment of acquittal passed by the Trial

Court. Learned counsel for accused also placed reliance on

another Co-ordinate Bench Judgment of this Court in Shri

Satappa s/o Venkatarao Vardhaman s/o Mahaveer

s/o Kulabhushan Vardhaman in

Crl.A.No.200061/2021 dated 16.12.2022. Wherein

the judgment of acquittal passed by the Trial Court came

to be set aside, since the rebuttal evidence placed on

record by the accused was unsustainable.

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19. In the present case main contention of accused

is that she has issued blank signed cheque bearing

No.414523 Ex.P.1 as a security for the settlement of

dispute between complainant and her father Madaiah

which was subject matter in C.C.No.1060/2009 against the

judgment of conviction and the appeal is pending before

the Sessions Court. However, the settlement of talks have

been failed and therefore she issued notice Ex.P.6 dated

19.01.2009 calling upon the complainant to return the

cheque Ex.P.1 which she claims to have given to

complainant as security. It has been elicited in the cross-

examination of PW.1 regarding issuance of notice of

accused dated 19.01.2009 and complainant having replied

to the said notice. Therefore, the issuance of notice by

accused dated 19.01.2009 and reply of complainant dated

11.02.2009 has not been disputed by accused. Therefore,

the contents of reply given by complainant dated

11.02.2009 can be looked into. Wherein complainant has

denied that accused has given cheque Ex.P.1 as a security

for settlement of dispute between complainant and her

father. Therefore, it is the duty of accused to place

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requisite evidence on record that she has issued blank

signed cheque Ex.P.1 as a security for settlement of

dispute between complainant and her father which was

subject matter in C.C.No.1060/2002.

20. Accused other than the self serving statement

in the notice dated 19.01.2009 Ex.P.6 has not produced

any document to show that there was any negotiation

between complainant and accused or with her father for

settlement of dispute in C.C.No.1060/2002. On going

through the contents of the notice issued by accused

Ex.P.6, it would go to show that father of accused was

convicted for the offence under Section 138 of N.I.Act in

C.C.No.1060/2002 and the appeal is pending before

Sessions Court. If at all any negotiation is to be done for

settlement in a pending appeal before the Sessions Court,

then the same should have been informed to the Sessions

Court either by making oral submission or by written

communication that negotiation talks are going on for

settling the dispute between complainant and her father.

According to accused in the notice issued by her Ex.P.6,

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she issued the cheque in the month of February 2007 for

settling the matter between complainant and her father

before October 2008. Accused offered no any explanation

as to why she kept silent for not taking any action against

complainant withholding her cheque. The cheque in

question Ex.P.1 is issued on 05.03.2009. Above all neither

accused stepped into witness box nor examined her father

to prove the fact that there was negotiation between

complainant and father of accused regarding the

settlement of dispute between complainant and her father

which was subject matter in C.C.No.1060/2002 against

which appeal is pending before the Sessions Court. Other

than the contention of accused as referred above, there is

virtually no any evidence on record to show that there was

negotiation between complainant and father of accused

regarding the settlement of cheque bounce case in

C.C.No.1060/2002. Accused could have at least ask her

father and complainant to make submission before the

Sessions Court where the appeal is pending, the parties

are negotiating the matter for settlement, so as to draw

inference that in fact and in reality there was negotiation

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between complainant and father of accused relating

settlement of cheque bounce case in C.C.No.1060/2002.

In the absence of any material evidence on record the

bare contention of accused that she issued the blank

signed cheque to the accused as a security for the

settlement of dispute between complainant and her father

which is subject matter in C.C.No.1060/2002 cannot be

accepted.

21. Learned counsel for respondent has also argued

that accused is a Dentist by profession and her husband is

also a doctor, both of them are sufficiently earning and

accused had no any occasion to avail the loan of

Rs.1,00,000/- from complainant. Accused has taken no

any such contention in the notice issued by her dated

19.01.2009 Ex.P.6 nor in the reply dated 02.05.2009

Ex.P.9 issued to the demand notice of complainant. It is

for the accused to prove the said fact, however accused

has not placed any evidence on record to that effect.

There is no any hard and fast rule that simply because

accused and her husband are doctors by profession cannot

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have any financial difficulty at all. Therefore, only on

assumption and presumption based on there profession no

any legal inference can be drawn.

22. Trial Court has rightly appreciated the oral and

documentary evidence placed on record and was justified

in holding that Ex.P.1 cheque was issued for lawful

discharge of debt and the accused has failed to probabilise

her defence that cheque Ex.P.1 was issued as a security

for settlement of dispute between her father and

complainant which was subject matter in

C.C.No.1060/2002. However, the First Appellate Court

without assigning any valid reason for deviating from the

findings recorded by Trial Court only on the basis of notice

issued by accused Ex.P.6 and the fact that accused and

her husband are doctors by profession proceeded to draw

inference that they have sufficient source of income and

there was no occasion for the accused to avail loan of

Rs.1,00,000/- from complainant. The observations and

findings recorded by First Appellate Court are contrary to

the evidence on record. When the rebuttal evidence placed

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on record by accused is held to be unsustainable in law,

then statutory presumption in terms of Section 118 and

139 of N.I.Act will continue to operate. Therefore, the

contrary finding recorded by First Appellate Court cannot

be legally sustained and the same is required to be

interfered by this Court.

23. On question of imposition of sentence also the

Trial Court has rightly exercised it's judicial discretion in

imposing of fine amount with default sentence. Looking to

the facts and circumstances of the case there are no any

justifiable reason to interfere in the discretion exercised by

the Trial Court while imposing sentence. Consequently

proceed to pass the following.

ORDER

Appeal filed by appellant/complainant is hereby

allowed.

The judgment of First Appellate Court on the file of II

Addl.District and Sessions Judge, Kodagu Madikeri (sitting

at Virajpet) in Crl.A.No.34/2011, dated 21.11.2013 is

hereby set aside.

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The judgment of Trial Court on the file of Civil Judge

and JMFC, Ponnampet in C.C.No.819/2010, dated

30.08.2011 is ordered to be restored.

Registry to send back the records to Trial Court with

a copy of this order.

Sd/-

JUDGE

GSR