Karnataka High Court
Smt Zubeida vs The Udupi Taluk Protestant on 5 January, 2024
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CRL.RP No. 676 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL REVISION PETITION NO.676 OF 2015
BETWEEN:
SMT. ZUBEIDA
W/O UMMER MOIDIN
AGED MAJOR
RESIDING AT SALVA COTTAGE
KALATTUR POST
UDUPI TALUK-576101.
...PETITIONER
(BY SRI HAREESH BHANDARY T., ALONG WITH
MS. THANIMA BEKAL C., ADVOCATES)
AND:
THE UDUPI TALUK PROTESTANT
CHRISTIAN CREDIT CO-OP. SOCIETY LTD.
HAVING ITS REGISTERED OFFICE AT
GRACE PLAZA, 76 BADAGABETTU VILLAGE
UDUPI TALUK REPRESENTED BY ITS
Digitally GENERAL MANAGER GANESH SHERIGARA
signed by
S/O KARIYA SHERIGARA
VINUTHA M
R/O NEAR S.V.TEMPLE
Location: SANTHEKATTE, KALLIANPUR
HIGH UDUPI TALUK-576104.
COURT OF ...RESPONDENT
KARNATAKA
(RESPONDENT SERVED AND UNREPRESENTED)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S.397(2) OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 27.12.2012 PASSED BY THE III ADDITIONAL
CIVIL JUDGE AND J.M.F.C., UDUPI, IN C.C.NO.4165/2009 AND THE
JUDGMENT AND ORDER DATED 03.06.2015 PASSED BY THE
PRINCIPAL SESSIONS JUDGE, UDUPI, IN CRL.A.NO.5/2013 AND
ACQUIT THE PETITIONER.
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CRL.RP No. 676 of 2015
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 06-12-2023, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Heard Sri Hareesh Bhandary T., learned counsel for
the petitioner. Respondent is served and unrepresented.
2. The petitioner-accused has preferred this
criminal revision petition under Section 397(2) of the Code
of Criminal Procedure, 1973 praying to set aside the
judgment of conviction and order on sentence dated
27-12-2012 passed by the III Additional Civil Judge &
JMFC, Udupi in Criminal Case No.4165/2009 and
confirmed by the judgment dated 03.06.2015 passed by
the learned Principal Sessions Judge, Udupi in
Crl.A.No.5/2013 wherein both the Courts passed
concurrent findings in respect of the offence punishable
under Section 138 of the Negotiable Instruments Act,
1881 (hereinafter referred to as 'N.I. Act' for short).
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3. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court. The
petitioner is the 'accused' and the respondent is the
'complainant' before the trial Court.
4. The brief facts of the complainant's case are as
under:-
The complainant had filed a private complaint under
Section 200 of the Code of Criminal Procedure for an
offence punishable under Section 138 of the Negotiable
Instruments Act. The complainant is a Co-operative
Society which lends money to its members. The husband
of the accused had availed a loan of Rs.1,25,000/-
(Rupees One Lakh Twenty Five Thousand only) from the
complainant-Society on 16.10.2001 on the guarantee or
co-obligation of the accused, who was the member of the
complainant-Society and one Abdul K. Beary and the
accused, as guarantor for the loan of her husband issued a
cheque dated 21.02.2009 for a sum of Rs.2,50,000/-
(Rupees Two Lakhs Fifty Thousand only) in favour of the
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complainant drawn on Mangalore Catholic Co-operative
Bank Ltd., Shirva Branch, Shirva, and on presentation of
the said cheque, it was returned with an endorsement
'insufficient fund'. Hence, the complainant got issued a
legal notice calling upon the accused to pay the amount
due under the cheque, but the accused did not pay the
cheque amount. Hence, the complaint. After registration
of the private complaint, the trial Court took cognizance,
recorded the sworn statement of the complainant and
issued process.
5. The complainant to prove its case, examined its
General Manager as P.W.1 and relied upon 12 documents
as per Ex-P1 to P12 and ultimately, the trial Court
convicted the accused and sentenced her to undergo
imprisonment for a period of one year for the offence
punishable under Section 138 of the Negotiable
Instruments Act and to pay a fine of Rs.2,76,000/-
(Rupees Two Lakhs Seventy Six Thousand only) with
default imprisonment.
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6. Aggrieved by the judgment of conviction and
order on sentence passed by the trial Court, the accused
preferred Criminal Appeal No.5/2013 and in turn, the First
Appellate Court confirmed the judgment of conviction and
sentence passed by the trial Court.
7. Aggrieved by the aforesaid orders, the accused
has preferred this criminal revision petition.
8. Perused the material available on record and the
grounds urged in the revision petition.
9a. It is contended by learned counsel for the
petitioner/accused that, the judgment of conviction and
order on sentence passed by both the Courts is not in
accordance with law, both the Courts have committed a
serious error; the complainant has failed to comply the
mandatory requirements of Section 138 of NI Act; the
complainant has not produced any iota of evidence to
show that the petitioner had issued a cheque in favour of
the complainant for discharge of liability of her husband;
the trial Court has not appreciated the admission of PW1
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in proper perspective; the complainant has created and
concocted the documents to show that the husband of the
accused had availed such huge loan from the society.
9b. It is contended that, accused never stood as
guarantor to the loan borrowed by her husband, but, the
trial Court and First Appellate Court failed to consider this
aspect.
9c. It is contended that, the trial Court failed to
accord sufficient opportunity to disprove the case of the
complainant; the complainant has not furnished sufficient
evidence to hold that the accused issued cheque for
discharge of liability of her husband; there is difference in
writings found in the cheque and it shows that the
complainant has obtained the blank cheque from the
petitioner and misused the same.
10. From the perusal of the oral and documentary
evidence and the submissions made by learned counsel for
the petitioner, it appears that, the complainant in order to
prove its case examined its General Manager Sri Ganesh
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Sherigara as PW1 and got marked twelve documents as
per Exs.P1 to P12 viz., Ex.P1 cheque, Ex.P3 Bank memo,
Ex.P4 Legal Notice, Ex.P5 Postal Receipt, Ex.P6 Under
Certificate of Posting, Ex.P7 Acknowledgement, Ex.P8 Loan
Application, Ex.P9 Demand Promissory note, Ex.P10
Delivery Note, Ex.P11 Memorandum of Agreement and
Ex.P12 Award.
11. In order to rebut the claim of the complainant,
the accused did not enter the witness box and no
documents were placed on record.
12. On perusal of the oral testimony of PW1 and
Ex.P1 to P12 documents, it appears that the accused had
borrowed a sum of Rs.2,50,000/- from the complainant
Society and in consideration thereof, the complainant had
issued Ex.P1 cheque for a sum of Rs.2,50,000/- on
21.02.2009 and on being presentation of the cheque for
encashment to the banker, the cheque was dishonoured
for the reason "funds insufficient" in the account of the
accused. Inspite of issuance of legal notice as per Ex.P4,
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the accused failed to repay the said amount due under
Ex.P1 cheque.
13. In the instant case, the complainant has
produced the cheque in question and it is marked as
Ex.P1. The signature of the accused is also marked as
Ex.P1(a). The bank endorsement is also marked as Ex.P3.
On perusal of all these documents, it clearly establishes
that the accused has not disputed the issuance of cheque
and she has not disputed service of legal notice on her. As
per the presumption available under the NI Act, the
complainant has complied the legal requirements under
Section 138 of the Act. Now burden shifts on the accused
to disprove the case of the complainant.
14. On perusal of the evidence on record, the
accused has taken up the contention that the cheque was
issued in the year 2009 as a security to the loan borrowed
by her husband, but the complainant presented the said
cheque for encashment, thereby it has misused the said
cheque and therefore the accused has taken divergent
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contentions. Again the fact remains that the accused
never discharged the alleged loan borrowed from the
complainant in the year 2001. Now the learned counsel
for the petitioner has taken up the contention that the
cheque was issued as a security for the loan borrowed by
her husband and it was not issued towards legally
enforceable debt and on the other hand, according to the
complainant, Ex.P1 cheque was issued by the accused for
discharging the legally enforceable debt towards loan
borrowed by her husband. In this regard, the accused has
not produced any contra evidence to disbelieve the case of
the complainant.
15. Whenever, the execution of the negotiable
instruments is admitted, then, the Court may draw
presumption under Section 118 of N.I.Act and the Court
shall draw presumption under Section 139 of N.I Act in
favour of holder of the negotiable instrument.
16. In the present case, the complainant has
proved that the cheque was issued for legally enforceable
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debts. In the case of Don Ayengia /vs./ State of
Assam and Another reported in 2016 Criminal Law
Journal 1346, the Hon'ble Apex Court clearly held that if
cheque is issued towards discharge of any debt or any
other liability, it is to be called as legally enforceable debt
within the meaning of Section 138 of N.I.Act. In the
instant case, as a matter of fact, the existence of debt or
liability was never in dispute. On the contrary, it was
acknowledged by the accused and she has simply taken a
contention that the cheque was issued in the year 2009.
17. If cheque was issued in relation to other
transaction, it should be construed as the same was issued
towards present debt or present transaction and it was
issued towards legally enforceable debt or liability. There
was a presumption that negotiable instrument is supported
by consideration, there was no dispute that such
consideration, inasmuch as, the cheque was issued in
connection with discharge of liability.
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18. In the instant case, the complainant has proved
that on the relevant date, it has lent loan to the husband
of accused and in consideration thereof, the accused being
the wife of principal borrower had issued cheque in favour
of the complainant. Further, the accused has not placed
any material before the court to prove that under what
circumstances she issued the cheque in favour of the
complainant. Further, the accused has not produced any
documents to substantiate that the accused or her
husband discharged the entire loan borrowed from the
complainant society. If the accused or her husband had
discharged the loan, she ought to have called upon the
society to return the cheque issued by the accused.
19. Learned counsel for the petitioner vehemently
contented that the complainant has misused the cheque.
Where one person signs and delivers to another,
negotiable instruments either it is wholly blank or nothing
written thereon an incomplete negotiable instruments, he
thereby give prima-facie authority to the holder thereof to
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make or complete, as the case may be, upon it negotiable
instruments, for any amount satisfied there under and not
exceeding the amount covered by stamp.
20. The person so signing on the negotiable
instruments shall be reliable upon such instrument under
Section 20 of the N.I.Act. Therefore, the complainant by
invoking Section 20 of the N.I.Act filled up the cheque in
question and presented for encashment. Hence the trial
court as well as the first appellate court drew presumption
under Section 118 of N.I.Act so as to consideration, as to
debt, as to time of acceptance, as to time of transfer and
as to stamps and that the holder in due course.
21. The burden lies on the accused to prove non-
existence of consideration which would lead the Court to
disbelieve the non-existence of consideration either by
direct evidence or by probable to show that the existence
of consideration was improbable, doubtful or illegal, but
the accused has not produced any kind of evidence to
show that existence of consideration was improbable,
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doubtful or illegal. Therefore, the trial court and the first
appellate court drew presumption that the cheque was
issued for legally enforceable debt until contrary is
established. In the instant case, the complainant has filed
a private complaint under Section 200 of Cr.P.C., for the
offence punishable under Section 138 of N.I.Act and it has
fulfilled the ingredients as required under Section 138 of
N.I.Act.
22. When once the issuance of cheque is proved,
the presumption under Section 138 of N.I.Act would arise
with regard to consideration. But the accused has not
discharged the debt in question. Whether the accused has
issued the cheque for repayment of loan or as security or
it was discharged prior to the current transaction, makes
no difference under Section 138 of the N.I.Act. The legal
consequence was same without distinction.
23. In the instant case, the trial court as well as the
first appellate court considering the oral and documentary
evidence on record and the peculiar facts and
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circumstances of the case has convicted the petitioner for
the offence punishable under section 138 of the N.I.Act. In
the case of Vijay Mohan Singh /vs./ State of
Karnataka reported in (2019) 5 SCC 436, the Hon'ble
Apex Court held that if the complainant proved the
material on clinching aspect on the peculiar circumstances
of the case, then the conviction under Section 138 of
N.I.Act can be sustained.
24. Looking into any angle, the judgment of trial
court as well as the first appellate court is in accordance
with law. The trial court and the first appellate court have
passed well reasoned orders. Hence, no interference is
called for and there is no error on the face of the record.
Hence, I proceed to pass the following:
ORDER
1) The revision petition filed by the accused
is dismissed.
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2) The judgment of conviction and order on
sentence passed by III Additional Civil
Judge & JMFC, Udupi in Criminal Case
No.4165/2009 and judgment dated
03.06.2015 passed by the learned
Principal Sessions Judge, Udupi in
Crl.A.No.5/2013, is confirmed.
Sd/-
JUDGE
MN
