Karnataka High Court
S. Venkatesh vs Ramu on 30 May, 2024
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CRL.RP No. 727 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 727 OF 2017
BETWEEN:
S VENKATESH
S/O SIDDAPPA
AGED ABOUT 57 YEARS
R/AT C/O BYREGOWDA
D.NO. 13, 7TH CROSS
LOKAMANYANAGARA MAIN ROAD
LOKAMANYA ROAD
MYSORE - 570 001.
...PETITIONER
(BY SRI. CHANDRASHEKARA K A, ADVOCATE)
AND:
RAMU
S/O. RAMAIAH
AGED ABOUT 43 YEARS
R/AT BASTHIPURA VILLAGE
BELAGOLA HOBLI
SRIRANGAPATTANA TALUK
MANDYA DISTRICT - 571 438.
...RESPONDENT
(BY SRI. SHUBHAM N M, ADVOCATE)
THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
22/10/2016 PASSED BY THE II ADDITIONAL I CIVIL JUDGE
AND JMFC, MYSURU IN C.C.NO.964/2010 AND CONFIRMED BY
THE II ADDITIONAL SESSIONS JUDGE, MYSURU IN
CRL.A.NO.223/2016 DATED 29.05.2017 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 14.03.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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CRL.RP No. 727 of 2017
ORDER
1. This Criminal Revision Petition is filed by the petitioner
being aggrieved by the judgment of conviction and order
of sentence dated 22.10.2016 in C.C No.964/2010 on the
file of the II Additional First Civil Judge and JMFC, Mysuru
and its confirmation order dated 29.05.2017 in Criminal
Appeal No.223/2016 on the file of II Additional Sessions
Judge at Mysuru, wherein the petitioner has been
convicted for the offence punishable under Section 138 of
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:
3. It is the case of the complainant that he was working as
employee in the office of the accused. In the year 2006,
the complainant said to have sold his landed property.
The accused being aware of the said fact approached him
and intended to borrow money from the complainant and
assured him that he would pay interest on monthly basis.
Believing his version, the complainant paid Rs.4,00,000/-.
Thereafter, the accused has neither paid the interest nor
repaid the amount which he had borrowed. When the
complainant insisted to repay the said amount, the
accused issued a cheque for a sum of Rs.6,88,000/- dated
30.10.2009. The complainant presented the cheque for
encashment on 02.11.2009, however, the cheque came to
be dishonoured as 'insufficient funds'. On receiving the
said intimation, the complainant issued legal notice
regarding dishonour of the cheque. The said notice sent
through Registered Post with Acknowledgment Due was
served to the accused on 14.11.2009. Even after receipt
of the said notice, the accused has neither paid the
amount nor replied to the said notice. Being aggrieved by
the same, the complainant filed a complaint before the
jurisdictional Magistrate.
4. To prove the case of the complainant, the complainant
examined himself as PW.1 and relied on the documents
and got them marked as Ex.P1 to P9. In addition to the
examination, he got examined another witness as PW.2,
however, the accused did not chose to lead his evidence.
5. Heard Sri.Chandrashekara K.A, learned counsel for
petitioner and Sri.Shubham N.M, learned counsel for
respondent.
6. It is the submission of the learned counsel for petitioner
that the concurrent findings of the Courts below in
recording the conviction are against the evidence on
record and the judgments passed by both the Courts are
perverse and illegal. Therefore, the said concurrent
findings are required to be set aside.
7. It is further submitted that the complainant was working
as driver of the car which belongs to the accused. The
said fact has been admitted by the complainant. Though
he deposed and stated that the accused had executed on
demand pronote on 28.07.2006, the said on demand
pronote has not been filed for recovery of the amount.
8. It is further submitted that the defence of the accused is
that the cheque and on demand pronote were issued as a
security, however, the cheque was not filled by the
accused. The accused has taken up a contention that the
said cheque has been misused by the complainant by
filling it, however, the said contention has not been
considered by the Courts below.
9. It is further submitted that the accused though has proved
that the cheque and on demand pronote were issued as a
security and he has cleared the loan which he had
borrowed from the complainant, the said aspect has not
been considered by the Courts below, consequently,
impugned judgments are passed. Hence, the said
judgments are required to be set aside. Making such
submission, the learned counsel for petitioner prays to
allow the petition.
10. To substantiate the contention of the petitioner, the
learned counsel for petitioner relied on the following
judgments:
a) K.V.Subba Reddy v/s N.Raghava Reddy in Crl.A
No.545/2010 DD 28.02.2024
b) Purandara Rai v/s Naveendra Naik in Crl.A
No.473/2019 DD 10.02.2021
c) K.Subramani v/s K.Damodara Naidu1
11. Per contra, the learned counsel for respondent vehemently
justified the concurrent findings and submitted that the
fact of advancing the loan has not been disputed and the
execution of on demand pronote and issuance of the
cheque also not disputed, however, the accused contended
that he had cleared the loan and there is no liability on the
cheque. The said contention has been negatived by both
the Courts. The learned counsel contended that since the
Revisional Court is having no jurisdiction to re-appreciate
(2015) 1 SCC 90
the evidence, the findings of fact would remain
uncontroverted, therefore, interference with the said
findings would not be warranted. Making such submission,
the learned counsel for respondent prays to dismiss the
petition.
12. After having heard the learned counsel for the respective
parties and also perused the findings of the Courts below,
this Court being a Revisional Court needs to ascertain as
to whether any error or irregularity was committed by the
Courts below, it is necessary to have a cursory look on the
evidence of all the witnesses including the documents.
13. Before adverting to the facts of the case, it is necessary to
mention the settled principles of law for better
understanding. As per the settled principle of law under
the Negotiable Instruments Act, the drawee of the cheque
is protected under the presumption which is provided
under Section 139 of the N.I Act. Unless, it is
controverted, it is presumed that the drawee of the
cheque received the said cheque from the drawer in
discharge of debt or liability. Of course, the said
presumption is rebuttable in nature. The accused has to
lead cogent evidence by raising the probable defence that
the cheque was not issued in discharge of the debt or
liability. The said principle can be construed in such a way
that the accused has to lead the cogent evidence to rebut
the presumption which means the Court has to consider
first the defence of the accused and then go for evidence
of the complainant.
14. To fortify the said contention, it is relevant to refer to the
judgment of the Hon'ble Supreme Court in the case of
RAJESH JAIN v/s AJAY SINGH2, paragraph No.54 and
55 reads thus:
"54. Nothing significant has been elicited in
the cross-examination of complainant to
raise any suspicion in the case set up by the
complainant. Other than some minor
inconsistencies, the case of the complainant
has been consistent throughout as can be
noticed from a perusal of the complainant,
demand notice and affidavit evidence. In
fact, the signature on the cheque having not
been disputed, and the presumption
under Section 118 and 139 having taken
effect, the complainant's case stood satisfied
every ingredient necessary for sustaining a
conviction under Section 138. The case of
the defense was limited only to the issue as
to whether the cheque had been issued in
AIR 2023 SC 5018
discharge of a debt/liability. The accused
having miserably failed to discharge his
evidential burden, that fact will have to be
taken to be proved by force of the
presumption, without requiring anything
more from the complainant.
55. As rightly contended by the appellant,
there is a fundamental flaw in the way both
the Courts below have proceeded to
appreciate the evidence on record. Once the
presumption under Section 139 was given
effect to, the Courts ought to have
proceeded on the premise that the cheque
was, indeed, issued in discharge of a
debt/liability. The entire focus would then
necessarily have to shift on the case set up
by the accused, since the activation of the
presumption has the effect of shifting the
evidential burden on the accused. The
nature of inquiry would then be to see
whether the accused has discharged his
onus of rebutting the presumption. If he fails
to do so, the Court can straightaway proceed
to convict him, subject to satisfaction of the
other ingredients of Section 138. If the Court
finds that the evidential burden placed on
the accused has been discharged, the
complainant would be expected to prove the
said fact independently, without taking aid of
the presumption. The Court would then take
an overall view based on the evidence on
record and decide accordingly."
15. On careful reading of the dictum of the Hon'ble Supreme
Court, it is necessary to consider the defence of the
accused. The accused in the cross-examination of PW.1
took his contention that he had borrowed the amount from
the complainant and executed on demand pronote and
cheque in the year 2006, however, the said cheque has
been presented in the year 2009 after lapse of three
years, therefore, the liability would not arise on the said
cheque. Further, the accused contended that he had
cleared the loan which he had borrowed and hence, on
demand pronote has not been used to recover the amount
from him.
16. On careful reading of the evidence of PW.1, it can be
inferred that the complainant was working as a driver of
the accused and he had sold the property of his joint
family and he received the amount from his family as his
share and the same has been advanced to the accused.
Though the accused took up a contention that he had
received Rs.2,00,000/- from the complainant and
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executed on demand pronote and the cheque and
thereafter, he cleared the said loan, he has not produced
any document to show that he had cleared the said loan.
17. PW.2 being a witness to on demand pronote executed by
the accused, his wife and son has deposed that on
28.07.2006, the accused had received rent of
Rs.4,00,000/- and executed on demand pronote and he
affixed his signature. Though PW.1 and PW.2 have been
cross-examined extensively, nothing has been elicited to
discredit their evidence.
18. It is needless to say that mere denial of the liability is not
sufficient to rebut the presumption unless the accused
produces some documentary evidence to substantiate the
said denial.
19. In the present case, the complainant proved his case by
producing on demand pronote and cheque and also got
examined one of the witnesses of the pronote.
20. It is needless to say that the documentary evidence
prevails over the oral evidence. Even though the accused
contended that he had cleared the loan of Rs.2,00,000/-
which he had borrowed, the said contention cannot be
accepted as the complainant proved his case beyond
reasonable doubt by producing the oral and documentary
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evidence in respect of advancing a sum of Rs.4,00,000/-
to the accused. As such, I am of the considered opinion
that the accused has not made out a case to interfere with
the concurrent findings. Therefore, this revision petition is
deserved to be dismissed.
21. Hence, I proceed to pass the following :
ORDER
The Criminal Revision Petition is dismissed.
Sd/-
JUDGE
UN
