Karnataka High Court
Sri. Jeevan Prakash M vs Smt. Lakshmamma on 11 January, 2024
1 CRL.RP NO.688 OF 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.688 OF 2019
BETWEEN:
SRI. JEEVAN PRAKASH M
S/O SRI. LATE SRI.MALEGOWDA,
AGED ABOUT 49 YEARS,
R/AT NO.97, 6TH MAIN ROAD,
2ND STAGE, BRINDAVAN EXTENSION,
MYSURU - 570 020.
...PETITIONER
(BY SRI. P.SUBRAMANYA, AMICUS CURIAE)
AND:
SMT. LAKSHMAMMA
W/O LATE SRI.GOPALAIAH,
AGED ABOUT 70 YEARS
R/AT NO.119, 6TH MAIN ROAD,
2ND STAGE, BRINDAVAN EXTENSION,
MYSURU - 570 020.
.....RESPONDENT
(BY SRI. PALLAVA R, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 (1) R/W 401
OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT DATED 06.07.2018 PASSED BY THE LEARNED IV
ADDITIONAL I PRINCIPAL CIVIL JUDGE AND JMFC, MYSURU
IN C.C.NO.3443/2014 PRODUCED AT ANNEXURE-A AND THE
JUDGMENT DATED 24.12.2018 PASSED BY THE LEARNED II
ADDITIONAL SESSIONS JUDGE, MSYURU IN CRIMINAL
APPEAL NO.169/2018 PRODUCED AT ANNEXURE-B; PASS
SUCH OTHER APPROPRIATE ORDER OR JUDGMENT AS
DEEMED FIT TO PASS UNDER THE FACTS AND
2 CRL.RP NO.688 OF 2019
CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 18.12.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
Being aggrieved by his conviction and sentence
imposed by the trial Court for the offence punishable
under Section 138 of N.I Act, which came to be
confirmed by the Sessions Court by dismissing the appeal
filed by him, petitioner who is accused is before this
Court in this petition filed under Section 397 r/w 401
Cr.P.C.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. Complainant filed a complaint under Section
200 Cr.P.C against accused for the offence punishable
under Section 138 of N.I Act, contending that she and
accused are known to each other since long time. With
that acquaintance, accused approached complainant for
hand loan of Rs.3 lakhs to clear some other hand loans
and meet household expenses. He assured to repay the
same within six months.
3.1 As per assurance complainant paid Rs.3 lakhs
on 15.08.2012. In this regard accused issued post dated
15.02.2013 cheque for Rs.3 lakhs. After six months when
complainant informed the accused that she will present
the cheque, accused requested two months time.
Therefore, complainant presented the cheque on
04.04.2013. However, it was returned unpaid with
endorsement "referred to drawer". When complainant
brought this to the notice of accused, he did not respond.
Therefore, complainant got issued legal notice dated
30.04.2013. It is duly served on accused. However, he
has neither paid the amount due nor sent any reply and
hence, the complaint.
4. After due service of summons, accused
appeared through counsel and contested the matter.
5. In order to prove the allegations against the
accused, complainant got herself examined as PW-1 and
got marked Ex.P1 to 5.
6. During the course of his statement under
Section 313 Cr.P.C, the accused has denied the
incriminating evidence led by the complainant.
7. Accused has not led any defence evidence.
8. Vide the judgment and order, the trial Court
convicted the accused and sentenced him to pay a fine of
Rs.3,20,000/- with default sentence.
9. Aggrieved by the same the accused filed
Crl.A.No169/2018. Vide the impugned judgment and
order, the Sessions Court dismissed the appeal filed by
the accused and thereby confirming the judgment and
order of the trial Court.
10. Being aggrieved by the same, the accused is
before this Court, contending that both Courts below
have committed grave error in convicting the accused.
They have failed to appreciate the evidence placed on
record. They have also failed to scrutinize the cheque in
question. The evidence led by the complainant is not
sufficient to convict the accused. The Courts below have
failed to appreciate the fact that the complainant has
failed to prove her financial capacity to pay huge sum of
Rs.3 lakhs to the accused. The impugned judgments and
orders are based on presumptions and assumptions. The
Banks introduced IFSC code during 2009. However, the
subject cheque is not bearing IFSC code and during her
cross-examination the complainant has stated that it was
given earlier to 2009. It is contrary to the case built by
complainant. This fact is not appreciated by the trial
Court. Viewed from any angle the impugned judgments
and orders are not sustainable and prays to allow the
petition and set aside the same.
11. On the other hand, learned counsel
representing the complainant has supported the
judgment and order of the trial Court and Sessions Court
and sought for dismissal of the petition.
12. Heard arguments of both sides and produce
the record.
13. Accused admit that the cheque in question
belongs to him drawn on his account maintained with his
banker and that it bears his signature. Consequently, the
presumption under Sections 118 and 139 of N.I. Act is
attracted, placing the initial burden on the accused to
prove that it is not issued towards the payment of any
legally recoverable debt or liability and on the other hand
establish the circumstances in which it has reached the
hands of accused. Of course, it is a rebuttable
presumption, upon which the burden would shift on the
complainant to prove the allegations made in the
complaint. While it is sufficient for the accused to prove
his defence by preponderance of probability, it is for the
complainant to prove her case beyond reasonable doubt.
14. It is relevant to note that the cheque in
question is returned by the bank with an endorsement
'Referred to drawer''. In this regard, the accused has
taken up a defence that the same does not attract the
provisions of Section 138 of N.I Act and as such the
complaint is not maintainable. Therefore, before deciding
the issue of financial capacity, it is necessary to examine
whether the return of cheque as "Referred to drawer"
attract provisions of Section 138 of N.I Act. In this
regard, learned counsel for complainant has relied upon
the decision of the Hon'ble Supreme Court in Laxmi
Dyechem Vs the state of Gujarat and others (Laxmi
Dyechem)1, wherein it is held that even a cheque
returned with an endorsement "Referred to the drawer"
attract the provisions of Section 138 of N.I Act. It was
observed that by issuing notice the fact of dishonour of
the cheque would be brought to the notice of the accused
and an honest drawer would certainly pay the amount
due under the cheque and thereby escape from the
liability of prosecution.
15. Admittedly, after the service of notice, the
accused has not chosen to send reply by clarifying as to
(2012) 13 SCC 375
why the cheque is not honoured or at least disputing the
fact of liability arising out of the said cheque. In the light
of the above decision, this Court is of the considered
opinion that the dishonour of cheque on the ground
"Referred to drawer" also attracts the criminal liability
under Section 138 of the N.I Act.
16. At the outset, it is relevant to note that
despite service of notice, the accused has not sent reply.
As held by the Hon'ble Supreme Court in C.C. Alavi Haji
vs Palapetty Muhammed & Anr (Alavi Haji)2, the object
and purpose of issue of legal notice is to enable a honest
drawer of cheque to make payment within the specified
time and thereby avoid prosecution. Incidentally, it may
provide an opportunity to the accused to spell out his
defence and state the circumstances in which the cheque
has reached the hands of accused. In the present case,
the accused has lost the said opportunity by not sending
reply to the legal notice. However, in Tedhi Sing Vs
Narayan Das Mahant (Tedhi Singh)3, the Hon'ble
(2007) 6 SCC 555
2022 SCC OnLine SC 302
Supreme Court held that when the accused failed to send
reply to the legal notice, challenging the financial
capacity of the accused, at the first instance, the accused
need not prove his financial capacity. However, if during
the course of trial, the accused takes up such defence,
then it is necessary for the complainant to prove his
financial capacity at the time when he advanced the loan
to the accused.
17. In fact, in APS Forex vs Shakti International
Fashion Linkers Pvt. Ltd (APS Forex)4, the Hon'ble
Supreme Court held that whenever accused rises the
issue of financial capacity of complainant in support of
probable defence, despite presumption in favour of the
complainant regarding legally enforceable debt under
Section 139 of N.I Act, onus shifts again on the
complainant to prove his financial capacity by leading
evidence, more particularly when it is a case of giving
loan by cash and there after issue of cheque. Though the
accused has failed to send reply to the legal notice, at
(2020) 12 SCC 724
the trial he has challenged the financial capacity of the
accused to lend him loan in a sum of Rs.3 lakhs. In the
light of the ratio of the Hon'ble Supreme Court in the
above noted decisions, it is necessary to examine
whether the complainant has proved her financial
capacity.
18. So far as the financial capacity of complainant
is concerned, during the course of cross-examination,
she has deposed that she is a homemaker and not
having any avocation. However, she has claimed that she
has reared cattle and except it, she is not having any
other income. As admitted by her, she has not produced
any documents to show her income out of cattle rearing
and that she is not having any documents to show that
at the relevant point of time she was having sufficient
income. When suggested that she was not having
requisite financial capacity when she allegedly advanced
loan of Rs.3 lakhs, the complainant has stated that at the
time of death of her husband, she received death
benefits from his department. As admitted by her, she
has not produced any documents to evidence the said
fact also. With this evidence, the complainant has
miserably failed to prove that at the time when she lent
Rs.3 lakhs to the accused, she was in possession of the
said cash. Consequently, as held in APS forex, unless
until the complainant prove her financial capacity, the
presumption under Section 139 of N.I Act is not attracted
and therefore the burden would not shift on the accused
to rebut the same. Therefore, there is no occasion for
this Court to examine whether the defence taken by the
accused that complainant has stolen the cheque from his
house is proved or not, despite the fact that he has not
taken any legal action for the same.
19. Both trial Court as well as the Sessions Court
have failed to examine whether the complainant was
having financial capacity when the loan was extended to
the accused. They have convicted the accused solely on
the ground that there is legal presumption in favour of
the complainant and that the accused has not let any
defence evidence to prove his contention. Consequently,
the findings of the trial Court as well as the Sessions
Court are contrary to the evidence placed on record and
as such perverse. They have caused gross miscarriage of
justice and suffered from manifest illegality and calling
for interference by the Court in exercise of revisional
jurisdiction.
20. In the result, the petition succeeds and
accordingly the following:
ORDER
(i) Petition filed by the accused under Section
397 r/w 401 Cr.P.C is allowed.
(ii) Consequently, the judgment and order
dated 06.07.2018 in C.C.No.3443/2014 on
the file of IV Addl. I Civil Judge and JMFC,
Mysuru and the judgment and order dated
24.12.2018 in Crl.A.No.169/2018 on the
file of II Addl. Sessions Judge, Mysuru are
set aside.
(iii) The accused is acquitted for the offence
punishable under Section 138 of the N.I
Act. His bail bond stand discharged.
(iv) The Registry is directed to send back the
trial Court and Sessions Court records
along with copy of this order forthwith.
Appreciation is placed on record for the valuable
assistance rendered by the learned Amicus Curiae
representing petitioner/accused. The fees of learned
Amicus Curiae is fixed at Rs.5,000/-. The High Court Legal
Services Committee is directed to pay the same.
Sd/-
JUDGE
RR
