Karnataka High Court
Sri A Viswanatha Pai vs Sri Vivekananda S Bhat on 20 September, 2008
Equivalent citations: AIR 2009 (NOC) 1233 (KAR.), 2009 CRI. L. J. (NOC) 429 (KAR.) 2009 (2) AIR KAR R 186, 2009 (2) AIR KAR R 186, 2009 (2) AIR KAR R 186 2009 CRI. L. J. (NOC) 429 (KAR.), 2009 CRI. L. J. (NOC) 429 (KAR.)
IN THE HIGH COURT OF KARNATAKA, BANGAL§) §E_V_ DATED THIS THE mm DAY OF SEP1'EMBER"2--O:(§'S:_V~~' j THE HONBLE MR. b1;at§Am.§ camar. mmxsron mrmofi % nmwmn %% Sri.A.Vis'wa11ath,a Pa; S/0 Late A.K.Pai, Aged about 56 years, Residing at I'~¥G.Q!}:19fi' Cross," ~» MathikCI'C,_.-" ' " * ' N ' Pctitionscr (By Advacatc) Sri. \fiv"ekJ 'a4.VIicV1a'S'.Bfiat; = L.BVhat;.... « Aged abc=i.2t_%'4f; years, Residing at No.59, RNHSTAC91cg1y, Vcnkatachari Nagar, Poat; ~., _ ~ . ' Bar;galor¢4f§€§0' O94. Rcsponcicnt ' (By Sri, Chandrashekar Achar, Advocate) V. _ Criminal Revisien Petition is filed under Sc-'rcfibn 397 1'/w 401 Cr.P.C. praying to set aside the " Oificr dated 11-12-2007 passed by the XXXVI Add1.city " bivfl and Sessions Judge, Barlgalore in A ' Cr1.a.No.944/2006 and 1:116 Ordcr dated 3-5-2006 'K-~('\.,,___,,v#-.._--~ 2 passed by the XVI Add1.CMM, Bangalere in CZ.C.No.1 1091/2004. This petition coming on for dictating erdeffig day the Court, made the follnwingz ~ QQE The petitioner herein ¥;{zhe" 'isf C.C.N0. 1 109 1/2004 before, the %ie,a1aiea Adam, e % Bangalore (herein referred to' iV'£ia§I'Vehor't) has challenged the of the judment and orfgier of 'ée;1§ence dated 3- 5-2006 him for the :":'3ectio11 138 of the Negetiable Instn1mef£te.VPxet (I1e:eif1« zeferred to as "N.I.Act" for aed .a1seAAthe..judment dated 11- 12-200'? passed 1VV'(,'r1,A,i§i'ov;9{§4~{2O06 by the learned mm Add1.City me sgésgsjizs Judge (CCH37), eangalorc (hereinafter ' V.2:efeIred to as "Appeilate Court" for short) confirming the and order of conviction émd sentence passed % the Trial Court. 2. Though this case was listed on 9-9-'£2008 for admission, it was taken up far final disposal by of the leamed counsel for both sides v. . : arguments on merits were hcaxicy > I = the impugled judgncnts and :):A1 3. The only poim fox; _§i¢tg%i*mmafion in this revision u 0I'deI' ~ . ' ' ' saiitence passed _ ' "Court and the 'A by the apmllate ' V-célszfirming the said A. _§uc1§ciI::x1t and order of conviction Sentence deserve to be set ';iSi de as being unsustainable in L' law '2' My to this point is in the 'affirmative' for the Reasons 4. Stated in brief the case of the complainant (herein after the parties are referred to as per ., in the Trial Court), as averred in his complzéiht. Seefion 200 Cr.P. C. before the TI'i€11'ec)1:1't;,"3§*s (3) The accused took A. 2 V' Rs.45,000/- ameing to repay 40* days. TOW3gIfl:S of said hand 1aa,I1,'- of the , vvbeazing L I\:To';C§§?3A_1V5;?VF3 dated ;1"9»4«2oo4. On being the bank on 214- VV'i"€;rA'._ve1"1e"ashn1eI1t, the said : 'V ieani"-ae to be bounced on the : insufficiency of funds. the complainant get . the statutory notice Dated 30» 4-'2004 demanding from the accused V '. payment of the said ameunt. Despite the receipt of the said netiec the accused did not cheese to pay the said amount. Therefore, the (---..f""'*---»--...._» 5 complainant filed the said case against the accused. 5. In order to substantiate his ease,"---._t11e Complainant got examined himself as marked Exs.P.I to P.'?. In support of '%t1:1e _ accused got himself examined WitI1f3SSt3S namely his wife Smt. as 1:.w.2 end; , Bharath Kumar as Ex.D.1 Extract of his Bank of the evideeee reeoective parties, both oral and Court held the accused >"' of efifewrxee and passed the impugned 'V J order of conviction and sentence, which came " in Cr1.A.No.944/ '.2006 by the Therefore, the present revision. to 6." Sri. SI ymm Bhat, the learned '' for the petitioner-accused strongly contended the Trial Court as well as the Appellate Court both $ 6 committed serimxs ermr in disbelieving the defence of the accused, as stated by him at the earliest point of time in his reply notice Ex.P.'? and as dCpOS*3ri4' as D.W.I, that he did not avail complainant but he was due said sum of Rs.45,000/-- tosxzagds (if K' house by the eompleunan' t April 2003 itself he issuecinnfimegfiue No.§?3199 by inadvertently putting onitwttze instead of 19.4. misused the same the encashing another cheque bearing 19-4-2003 which the accused v 'i'is$.i;1e:1 inui'a1.-Rem" of the coxnplainant as substitute iiez-itflier cheque No.973 199. 'i.;1§ai11st the above contention of the learned "V.,'eounsevif.'3r the petitioner, Sri.K.Chandrasek.ha1'a Achar, ceunsei for the respondent-coJ3:1pIainant
. K Leentended that since the issuance of the cheque for the .;.----..x\,----,,.......
'2' said amount has been clearly admitted by the petitioner-accused, both the Courts below were juetified in drawing presumption zmder Section 139"~.:§f..p_T'é!:;e N.I.Act in favour of the complaint unrebuttted by the aeused.
8. On careful reading of tire the Trial Court, and also ti;--.e:"'A_ppe1iate "is "Seen" ' that both the Courts» in respective judments that since issuance of the cheque in favour of the co111p1a3fn.:1'11L; has to be drawn in favour oVfe'*:191ev that the said cheque was «. the towards discharge of existing ie§;e11y"v«1rfee'ove:*o:b1e debt and therefore, the burden. was accused to establish that the said cheque was issued by him towards discharge of legally "_';%eeo:ve1ab1e debt that existed as on the date of its issue. ' ..._ nvvfixerefore, it is ciear that both the Courts proceeded to examine the defence version of the accused assuming 8 that their existed legally recoverable debt, due by the accused to the complainant, and the burden of proving HOE-EJGSCCHCC of the said debt, as on the date of cheque, was heavy on the accused. Furthergit apparent fimm the observations made 'f;he.1:,im p21g1;ea1j " "
judments that both the Courts ticreizce, the accused, assuming that t_he._degA'ee of to his * L' defence version on tile, part _accused, «is,,a::-Jrligh as the degee of proof guilt of the V to be raised under Section 1é;9o,,;:r:~:;:, irolfavour of the eomplaixwnt and V. the of proof required for proving the _of accused by the prosecution and for of defence Version by the accused, V"=..._'*._Hon'bie fipex Come, after referring to its various earlier "'--"§iec_ie§oI1s, and also the decisions of Various other High . has observed at para Nos. 21, 23, 25, 26 and 34 of its judment in the case of Krishna Janardhan Bhat (-~..f"\...,--\_____ Vs. Dattaeruua G. Hagde reported in Am 132522008 (4) sec 54 as under :
Pam 20: "gsection I38 :0?" V three ingediente; _ (1) that er{.ferceab1e'jAdebt;L '' V5 an am file" -drawn for ' '_.cii.e:'ehé:r§e in part k % er o1~omer liability ~~~~ 5;; 1pre supi3oses a legally 1 ' -~ debt; and Lil..i%:i)* cheque so issued had I' _:n returned due to ineufiieiency of funds."
"The proviso appended to the section provides for compliance of z iegal iequirements befere a complaint petition can be acted upon by a court of law. Section 189 of the Act merely raises 3. presumption in regard to the second aspect of the matter. E_g:s_tmg 10 0 vac-ct' t In rat' 139 t Qresumption in favour; ef.g_____m e e 1 .v _-------u-.
the chggue that the eameee issgggg fgr g;'§§ha_1_*ge of' debf "
other liabiligg." I Empfiasis seypiied Para. 22. . noticed heIeifi&;efore;.. basis that " presumption in :'i:3_: ..exi;$'tei2ee«---ef debt also. The our-' opinion, committed a " s§erieue._ " ceding on the basis for' the defence the accused is to step into the witness box mflgss he does so he would not be " his burden.
on the part of the courts, we Such an ~~ _ feel, is not correct".
Para 23:"An accused for discharghg the burden of proof placed upon him under a statute need not examine fi"
sum tier: under Seetiezr;
. __.S ..
he1der*e-bf II himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to naaixatajzl sflcncelf Standard of proof on the part ofoif' _ accused and that of thfl P3'9SecL1'tioI}C - a criminal case is c1ifi'er'i:nt,'j'__ ; Pen 25: "Furfth_ermore,""-- "
prosecution must the of H accused beyond alfzfesoiiable "d'cubt',§ the standard' so" prove a defence on of accused is of probabilities".
_ Ihfereoce f. V of ,, ,.p1.*eponderance of " be drawn not only " afzom' materials brought on record A . f A~t;_1e partie """ H s but also by reference to T. circumstances upon which he " 'Para 26: "A statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not, must, therefore be determined keeping in ViCW the other "_______S"-r'\..............---- 12 evidences on record. For the said purpose, stepping into the Witness box by the appellant is not imperative. In a case of this nature, Where the chancesf» of false hnplication cannot be 4.'. ~ out, the baekgound pfsct « conduct of the parties}: tcgetiier their legal requirements '~ it E be taken into c<>nsi<3:e:if'::'.1;ior1."' ' V- pm 34; "It is }¢i~guea' statute métxitlates ef presumption ,but it. Vstops lvatxthat. It H itloesllf presumption drawn . should to' lgave rebutted. Other V' t it " prhiciples of legal ' it eAjuI'isf)n:1Vdenc:<:, namely presumption of A . :'Lt1§mcenee as human rights and the
-- of reverse burden introduced .§§'f'j__$ection 139 should be delicately z Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and (---...§~"""""\'-"-s..'.... 13 having regard to legal principles goveming the same. "
10. Thus it is clear from the above obsewsttions of Hon'ble Supreme Court in the said case"
complaillant has to prove tIV1eV existsrfiséeij of: 1sgs;I1y*V. recoverable debt payable to hirgl by4fZ.1e':;sie1 the date of issuing of the * that in order to rebut the ~be ?drawn in favour of the need not prove his serene: .:i§rers:ig:511 es-sya:1de:sasanab1e doubt and it is suII'1ciez:1r,.- if by adducing his own evidence or firom the complainant and his V' &w{t.r1es's thgt "" "defence is plausible and probable himself examined as a witness. Further, existerzeebfijlegafly recoverable debt is not a matter of _pres{Lm?ption under Section. 139 of the Act; as, 8.139 b' fmerely raises a presumption in favour of the b eomplamant that the cheque was issued for discharge of any debt and other iiablity. Therefore, I have to f~J'\------*x_#.a 14 examine, in the light of the said observations of the Homale Supreme Court, whether the eamplaingnt has proved that there existed debt payable to ._the accused as on the date of issuing of V ques-tion and whether the evi§ieI'1eeA 3 the accused is suflicient V to that has to be drawn ef been rebutted by the..ecc§.itse<t;t.fi'j4 V2
11. It is the as could be seezj £3.13 averments and also as stated in his aifi,davit'sWo§.fn his eviciezzee in examination-iw tl1'e.t"'aeeue}ed borrowed from him a sum of therefore, the accused issued the "C;'2eq§42."e_..v:i:1fgztestion'in the year 2004 towards discharge df loan. It is pertixlent to nete that the ~ has not stated either in his complaint or :Ex.P.4 the statutory notice, issued to the accused as to on what date he lent the said ameunt; of money to the 2*'--f\"""-v-""
I5 accused. What all the complainam: has stated complaint and also in the said notice, is .. accused availed loan of Rs.45,000/- the same within 30 days. Fiiftiier, complainant has stated in his evidenee. availed loan from him fies not gven the exact 'eeeused borrowed the viijesides this, the complainant jgnof ...d.ecnment or oral evidence of :'a,nyj_ _'ia;it1iesses.'i,'?.o Vsubeejteintiate his case that the said amount during December sis by him in his examination V 2 ..... .. v ' of the evidence of the revision as DW.1, it is seen that he has etated therein that he did not avail any loan "'"'j_t11e complainant and that the complainant it :eoi'istI'ucted a house from him and therefore he was t'--..(\--\_________,_ 16 due to the complainant during the year 2003 a sum of Rs.45,(}(30/- and therefore, he issued cheque bearing No.973199 for the said amount of Rs.45,000/j...duui_IFLf1g Aprii 2003, but at the time of issuing the said inadvertently put the date en_ ,.t,h_e said' " sas: " "
19.432004' instead of 19.4.'2()§D3'.:;'_'_'e~:}Ie'..fiz:2s stated in the said af2id:;;;s;§t....V_t11aAt'- ems ' s e informed him about the putt;i1<1.,éA':)f the iffeamectiidate on the said cheque V ff-Q1: .:.1*equest of the compIama11' t _ zefleque beamn' g N0.9'73'200 cheque N0.9'?3199 and eomplainsnt flee latter cheque during the year ifgself 'tleereafier, instead 01' retum_iI1g the L_'eafI_ier 39.973 199 to the accused, he misused it in the year 2004.
On careful reading of the evidence in cross of this DWJ, it could be seen that the . K _e_('§n1plaiI1ant has not denied the evidence of DW. 1 in his examination-in-chief that the accused issued cheque W-...C"--'*'\._..~_-...___ 1'?
bearing No.9732OO in favour cf the co1np12*iiI13;If:;t:T"'*f§}r Rs.45,000/- in lieu of cheque bearing M973 the compiainant get the latter ffihflqllf: ii the ywr 2003 and tI1ereaf£er;i':dici»..'_'_;1et (accused) the cheque bea:ingeiN0.9:319g; is"
clear, the fact that__ tile" ieéuecivj to the complainant two criieqiieis} No.978199 dt.19.4.2003-- and L No.9'?199 qt. 29.4.2004 am: or Rs.45,000/- during the the cheque NQ973200 was eneashed the during 2003 itself has not , '_ beeeii. the complainant by making any ' DW. 1.
i other hand, Wm has stated in his croessex:-ixijixlation that he might have got the cheque it No.9'?320O for Rs.45,000/- encashed and the eecused might have delivered the said cheque to one Bnarath, his (PWFS) employee. This PW.1 has further admitted in his crass examination that he constructed a ('sf-"""\Z""
18
house for the amused on contract basis during the year 2003. Besides this, Ex.D.1 the statement of aecouht, cf the accused with the same Canara Bank:
establishes that cheque bearing dt.19.4.2oo3 for Rs.45,00()/- was cf"
V.S. Bhat, who is none other _ the same was emcashed it to V note the serial numbeeof tjueetien which came to be bounced mngttzte is 973199' and the cheque: the complainant in meymr *s1.No.9?32oo and, though the the'«ietter cheque (No.973200) in the by hthe....eemp1ainant is proved, there is no the complainaztt in respect of which received the said cheque from the accused and getttle same eneashed.
. 13. All the above facts and circumstances, taken ' tegether, pmbataalise the defence version of the accused that he was due to the complainant 9. sum of (---..r\---.---..,.,_, 19 Rs.45,000/- during April 2003 towards of construction of his house by the therefore, he issued the cheque _ 'V 0' 39.4.2003 in lieu of the cheque.' b¢3.-:.».g=.»¢o..973:99 the gmund that the d:3ie---en" . ..e.e¢que.0. 0 No.973 199 was iBad'?¢ITCfl§1jf. instead of 19.4.2003 and thet" a.ft:e:' getting the said latter chegsge during April 2003 itselffi" :cj£:1'r1e:z'§""eheq:.1e No.973 I99 the accused. Having admit'.i:ed' bearing No.973200 was issued iI1'vvfavcuAr,cn.!j%, and the same was encashed, '~ _ it the to explain in respect of which by the accused, he had received the ficm the accused during the year 2003.
14." is clear ficm the above that the accused has eliszficecssfully established his defence versien. by h 0. :_'v_a%."iducing his own evidence and also by eliciting, in the cross-examizlatien of PW. 1 and also by producing Ex.1.'..>1 (_C\./-
20 the statement of his aceeunts with his Banker. Therefore, it is quite clear that as on the daire' «Vthe cheque in question, bearing No.973I99, wzxicn be presented during the year 2C:()>=?*,« '1:e:tv ~exiet V any legally enforceable debt pajgt;-.~1bie_TV_?aJ3I the complainant. Both the of "
the accused on the aeeunezgititbeié the Vgireeumptien under Section 139 'of I*§'egefiabie vAA.';':It1StI'Ll1I3CI1tS Act extends not; toe, ~. ef:.T't11e said cheque towards debt, but also to the existetzee"ef debt as on the date of its issue. V Eouotifitte---ti1e observations of Horfble Supreme of Krishna Janardhan Bhat ( AIR 3:325) referred to supra, I am of the eeneifiefed view, that the complainant has faileci to V'_Aes:teAi;3Iieh that he lent the said amount at' Rs.45,0G0/- to h V. __t§;e accused at any point of time either during December 2003 er on any ether date and as such there existed ,---.("""""'--'"' 21 debt of Rs.45,000/- payable to him by the accused and therefore the accused issued the said chequej in discharge of the said debt. On the accused has successfully established ijdefezi version, as discussed by me jfI'he1*efoj*e,VV that both the Trial Court Apoefiete *' committed serious error in that the complainant _i"'<':ase egeinst the accused beyond reaserj'abie._< A(}:.OLi'£)£' V as such the accused _' the matter, the impumled judgrxenttand erC1e1*.,of~.--eonvict:ien and sentence passed = _ b3t':L_ft'}1eV_ also the irnpumed judmerzt of eonfirmhlg the judment of the Trial _ deserve to be set aside as being not susmigétble. Hence while answering the point raised for "':V'_A'd.ete"::tnin,aiion in the 'Affirmative' this tevision petition is ' " iweilowed, both the said judgments of the Trial Court and the Appellate Court are hereby set aside and the g---«.(""'\--""'-X....--"
22
accused is hereby acquitted of the offence under 138 of N1. Act. The ameunt of fine any part thereof, if has been paid by £116' t1'§,§é'' '' same shall be refunded to 1r%a:;y %¢:'tne%Afi;;§ amount has bmn receivedhy-.;he "
of the impugtled juagnentgj snan recover the: same and refund it to the petitioner ;_f'3__ccu:ééd'.' "to costs in this revision. 1..
Sd/-~ Judge