Karnataka High Court
Mohammad Abdul Lathif vs Dasanal Mallappa S/O D.Doddara ... on 26 November, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26 T H DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRL.RP.NO.100106 OF 2020
BETWEEN
MOHAMAD ABDUL LATHIF,
S/O LATE MOHAMAD RAJA HUSAIN,
AGED: 68 YEARS, OCC: RETD. SERVICE
(KEB EMPLOYEE (AUDIT DEPT.),
R/O: VIJAYANAGAR COLONY,
ASHIF NAGAR, HYDERABAD.
... PETITIONER
(BY SRI R.M.JAVED, ADVOCATE)
AND
DASANAL MALLAPPA,
S/O D.DODDARA MARIYAPPA,
AGED: 72 YEARS,OCC: AGRICULTURE,
R/O: S.R. NAGAR, 18TH WARD, HOSPET, BALLARI.
... RESPONDENT
(BY SRI SATISH M.S., ADVOCATE)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
AND SENTENCE 18.01.2020 PASSED BY THE III ADDL.
DISTRICT AND SESSIONS JUDGE, BELLARI, SITTING AT
HOSAPETE IN CRL. A. NO.5052/2016 CONFIRMING THE
JUDGMENT AND ORDER OF CONVICTION IN CC NO.495/2013
PASSED BY THE PRL. CIVIL JUDGE JMFC, HOSAPETE DATED
03.08.2016, WHICH CONVICTED THE PETITIONER UNDER
SECTION 138 OF NI ACT, ETC.,
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THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though this petition is listed for admission, with the consent of both parties, matter is taken up for final disposal.
2. This revision petition is preferred by the Accused aggrieved by the judgment of conviction and order of sentence passed by Prl. Civil Judge and JMFC, Hosapete in CC No.495/2013 dated 03.08.2016 convicting him for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'NI Act'), confirmed by III Addl. District and Sessions Judge, Bellary sitting at Hosapete in Crl. A. No.5052/2016 dated 18.01.2020.
3. Parties herein shall be referred to as per their status before the trial Court. 3
4. Brief facts leading to this case are as under:
It is the case of Complainant that accused and himself were well acquainted with each other and accused requested Complainant for financial assistance. Accordingly, Complainant gave a hand loan of Rs.50,000/- in January 2011 to accused. In repayment of the said hand loan the accused got issued a cheque dated 30.06.2012 bearing No.599614 drawn on Andhra Bank, Hosapete Branch in favour of the Complainant. On presentation of the said cheque to his bankers, cheque came to be disnohoured for the reason 'funds insufficient'. The said fact was informed to accused, who requested Complainant to represent the cheque once again on the promise that the same would be honoured. Again Complainant represented the cheque on 30.08.2012. The cheque came to be dishonoured again with an endorsement 'funds insufficient'.
Thereafter, Complainant got issued a legal notice to 4 the accused on 06.09.2012. Despite receipt of the legal notice, the demanded amount has not been paid by the accused nor did he reply to the said notice, driving the Complainant to file Complaint for the offence punishable under Section 138 of NI Act. On registration of the complaint, cognizance was taken and accused was summoned. Accused pleaded not guilty and claimed to be tried and accordingly he was tried.
5. In order to prove the guilt of accused, complainant examined himself as PW1 and got marked Ex.P1 to P6 and closed his side. Thereafter statement of accused was recorded under Section 313 Cr.P.C., wherein accused denied all incriminating evidence against him. Accused examined himself as DW1 and got marked Ex.D1 to D3 on his behalf. He also examined DW2 in support of his case.
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6. After examination of the case papers and considering the evidence on record and the documents placed before it, trial Court came to a conclusion that the Complainant has made out necessary ingredients to attract offence under Section 138 of NI Act and the rebuttal of prosecution has not been satisfactorily proved by accused and accordingly trial Court found accused guilty of the offence and convicted him for the offence punishable under Section 138 of NI Act.
7. Aggrieved by the said conviction accused preferred an appeal before the III Addl. District and Sessions Judge, Bellary sitting at Hosapete in Crl. A. No.5052/2016. On reconsideration of evidence and materials placed on record Appellate Court came to the conclusion that on accused filing application for leading additional evidence the same was allowed as accused wanted to place the election ID Card to show that he was not residing at Hosapete address when the legal notice came to be served, whereas he 6 was residing in Hyderabad. After analyzing the entire evidence Appellate Court came to a conclusion that Complainant has established the existence of legally recoverable debt and that trial Court has rightly appreciated the same and has come to a just conclusion which requires no interference. Accordingly, appeal came to be dismissed confirming the order of conviction passed by the trial Court.
8. Heard Sri R.M.Javed, learned counsel for petitioner and Sri Satish.M.S., learned counsel for respondent
9. It is contended by the learned counsel for accused that the judgment of conviction passed by the trial Court and confirmed by the Appellate Court is contrary to the evidence and material placed on record and hence the same deserves to be set aside. He further contends that trial Court has not provided sufficient reasoning to appreciate evidence lead by him and the documents produced by him. He further 7 contends that the trial Court has committed an error in not following necessary procedure and mandatory requirement for fulfillment of offence under Section 138(b) of NI Act, which is service of legal notice to accused. He further contends that despite the knowledge that accused is not residing in the address mentioned in the complaint and the legal notice, the complainant has sent legal notice to the address of the accused at Hosapete and complainant has also mentioned the same address while filing the complaint, whereas accused has shifted and started residing at the address at Hyderabad. Learned counsel further contends that unless requirement under proviso (a) to (c) of Section 138 of NI Act is complied, the offence under Section 138 of NI Act is not made out.
10. Learned counsel further contends that the accused has borrowed the loan of Rs.3,20,000/- from the Complainant and not Rs.50,000/- as claimed. The said amount borrowed was returned by 8 accused to Complainant initially by way of cheque which is produced at Ex.D1. The said cheque was returned by Complainant and he requested the accused to pay the said amount by cash. Accused repaid entire amount of Rs.3,20,000/- by way of cash to the Complainant therefore, there is no liability of accused to pay the alleged claim of cheque in question namely Rs.50,000/-.
11. Learned counsel further contends that despite adducing all the facts in the evidence and production of Ex.D1 to D3, trial Court has ignored all these aspects and committed grave error causing miscarriage of justice to accused. Learned counsel contends that non-considering all these material evidence both oral and documentary, is illegal and erroneous in law and hence, the same requires to be set aside. With all these submissions, he seeks to allow the revision petition and reverse the orders passed by both the Courts.
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12. Per contra, it is the case of respondent- complainant that the judgment passed by both the Courts are based on material evidence both oral and documentary and hence, the same does not call for any interference by this Court. It is further contended that the legal notice to accused has been served on the address of accused in which he was residing prior to shifting to Hyderabad which was not within the knowledge of complainant. It is further contended that there is due compliance of the requirement of Section 138 of NI Act. It is further contended that the accused has admitted the loan transaction and he has also admitted the issuance of cheque and signature on the cheque. Therefore, when loan transaction and issuance of cheque is admitted, the presumption under Section 139 of NI Act will come into play and it is for the accused to rebut the same and prove to the contrary that no such cheque was issued or non existence of any legally recoverable debt. On these submissions, he 10 seeks to dismiss the petition and confirm the orders passed by both the Courts.
13. Having heard the leaned counsel for petitioner and learned counsel for respondent, the points that arise for consideration before this Court are:
1) Whether the necessary mandatory
requirement under Section 138 of NI
Act is fulfilled?
2) Whether there is any illegality or
perversity in the impugned orders of both the Courts?
14. To answer these points, cursory look of the complaint is essential. Accused had issued a cheque in favour of complainant on 30.06.2012 bearing No.5999614 in favour of complainant for Rs.50,000/-. The same was represented to the bank on 26.07.2012. Subsequently it was presented on 30.08.2012. On both occasions, the cheque came to be dishonored for reason "Insufficient Funds". 11 Thereafter, legal notice was issued on 06.07.2012. As demanded amount was not paid, complaint came to be filed by complainant.
15. Proviso(a) to (c) of Section 138 of NI Act reads as under:
"138. DISHONOUR OF CHEQUE FOR INSUFFICIENCY, ETC., OF FUNDS IN THE ACCOUNT. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which 12 it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the 20 cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
16. Proviso (b) to Section 138 of NI Act states that 'payee' or the holder in due course shall make a demand for payment of the said amount by giving a notice in writing to the drawer of the cheque. Therefore, in the present case, payee/complainant has made a demand to the last known address of 13 accused by sending a legal notice through registered post which is returned as delivered as per Ex.P.6. Therefore, there is compliance of proviso (a) to (c) of Section 138 of NI act in the present case.
17. After the complaint is filed there is a presumption as per Section 139 of NI act in favour of complainant. Section 139 of NI Act reads as under;
"139. PRESUMPTION IN FAVOUR OF HOLDER.- It shall be presumed, unless the contrary is prove d, that the ho lder of a cheque rece ived the cheque of the nature referred to in sectio n 138 for the discharge, in who le or in part, o f any de bt or other liability."
18. Bare reading of the above provisions would show that the holder of the cheque received the cheque for discharge in whole or in part of any debt or other liability, unless, the contrary is proved by accused. It is no doubt true that the 14 presumption stated above, is a rebuttable presumption. For the accused to prove to the contrary and rebut the presumption he has to lead evidence or produce material documents something which should be more than mere denial and mere suggestions. In the present case on hand, accused has not been able to rebut the presumption by any cogent evidence or by placing any documentary evidence. He has merely stated that the loan amount was not Rs.50,000/- and that it was Rs.3,20,000/- which has been repaid to accused.
19. Admittedly, accused has not produced any material before the Court to show that he has repaid the loan amount. He has relied on Ex.D1 to D3 which has been considered and appreciated by both the Courts. Therefore, when accused himself admits the loan transaction, admits the issuance of cheque, admits the signature on the cheque except for denying the quantum of amount herein all other aspects have been admitted by accused. Under 15 such circumstances, the presumption laid under Section 139 of NI Act is further fortifed in favour of the complainant as there is no rebuttal of evidence. The trial Court has rightfully convicted accused for the aforesaid offence. So also, the Appellate Court has re-evaluated and examined the entire materials on record and confirmed the order passed by trial Court. The mandatory requirements of proviso of Section 138 of NI Act has been properly complied in this matter. Accordingly, I answer points No.1 in the affirmative. To answer point No.2, I find no illegality or perversity in the impugned orders passed by both the Courts. Hence, I find no grounds to interfere with the judgment of conviction passed by both the Courts. Nevertheless, there could be some interference in the sentence passed by the Court. Accordingly, I pass the following:
ORDER Petition is partly allowed.16
The judgment of conviction is upheld. Sentence is modified as under:
Accused is sentenced to pay a fine of Rs.90,000/- for the offence punishable under
Section 138 of NI Act and in default of payment of fine amount, he shall undergo simple imprisonment for a period of three months. Out of fine amount accused shall pay a sum of Rs.85,000/- as compensation to complainant and remaining amount of Rs.5,000/- shall be credited to the account of State. The fine amount shall be paid within a period of six weeks from the date of receipt of this order.
Sd/-
JUDGE VK/HMB