Karnataka High Court
Smt V Chandrakala V vs Smt Kanickmerry on 27 November, 2023
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NC: 2023:KHC:42683
CRL.RP No. 1045 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO.1045 OF 2015
BETWEEN:
SMT. V. CHANDRAKALA V,
W/O GANGADHAR,
AGED ABOUT 37 YEARS,
WORKING AT DR. AMBEDKAR INSTITUTE
OF TECHNOLOGY,
TELECOMMUNICATION SECTION,
MALLATHALLI, RING ROAD,
BANGALORE - 560 048.
...PETITIONER
(BY SRI. ANAND R V., ADVOCATE)
AND:
SMT. KANICKMERRY,
W/O LATE J. JOHN,
AGED ABOUT 49 YEARS,
R/AT NENNAPU NILAYA,
Digitally 1ST MAIN, 8TH CROSS,
signed by GANDHINAGAR, MANDYA - 571 401.
SUMITHRA R ...RESPONDENT
Location:
HIGH COURT (BY SRI.KARTHIK K SHANKARAPPA, ADVOCATE FOR
OF M/S. S. SHANKARAPPA ASSTS., ADVOCATES)
KARNATAKA
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION PASSED AGAINST THE PETR. ON 14.10.2014 IN
C.C.NO.20882/2013 ON THE FILE OF XXI A.C.M.M.,
BANGALORE AND ALSO SET ASIDE THE JUDGMENT AND
ORDER DATED 04.07.2015 PASSED IN CRL.A.NO.1246/2014
ON THE FILE OF THE LXIII ADDL. CITY CIVIL AND S.J.,
BANGALORE CITY (CCH-64) AND ACQUIT THE PETR./ACCUSED.
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NC: 2023:KHC:42683
CRL.RP No. 1045 of 2015
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Revision petitioner/accused feeling aggrieved by the judgment of First Appellate Court on the file of LXIII Addl. City Civil & Sessions Judge, Bangalore City (CCH-64) in Crl.A.No.1246/2014 dated 04.07.2015 confirming the judgment of trial court on the file of XXI Addl. Chief Metropolitan Magistrate, Bangalore, dated 14.10.2014 has preferred this revision petition.
2. Parties to the revision petition are referred with their ranks as assigned in the trial court for the sake of convenience.
3. Heard the arguments of both the sides.
4. After hearing the arguments of both the sides and on perusal of judgment of both the Courts below, the following points arise for consideration:
(i) Whether the impugned order under revision in confirming the judgment of trial -3- NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 court for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, is perverse, capricious and legally not sustainable:
(ii) Whether any interference of this Court is required?
5. On careful perusal of the oral and documentary evidence placed on record, it would go to show that the complainant and accused are known to each other. Accused in the month of January 2013 approached the complainant for financial assistance of Rs.15,00,000/-. Complainant took sometime and she agreed to arrange Rs.11,00,000/-. Complainant has paid a sum of Rs.11,00,000/- to the accused in the month of January 2013 and accused agreed to pay interest at 2% p.a. Further she undertook to pay the said amount as early as possible within one month. However, the accused did not pay the amount as agreed. Complainant asked the accused to pay the money back and accused for lawful discharge of debt, issued cheque bearing No.525634 dated -4- NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 28.03.2013 for Rs.11,22,000/- drawn on Karnataka State Co-operative Apex Bank Ltd. Ex.P.1. Complainant presented the said cheque through her banker - Indian Overseas Bank. The cheque issued by the accused was dishonoured vide Bank endorsement as "payment stopped by the drawer" Ex.P-3 and accordingly, the complainant's Bank informed the same through Ex.P-2. The complainant issued demand notice dated 25.04.2013 Ex.P-4 through Registered Post Acknowledgement Due and postal receipt - Ex.P-5. The demand notice issued by complainant is duly served to the accused Ex.P-6. The accused inspite of due service of notice, has neither replied to the notice nor paid the amount covered under the cheque. Complainant has filed the complaint on 04.06.2013. The above referred documents are perused and appreciated with the evidence of PW1, it would go to show that the complainant has complied necessary legal requirement in terms of Section 138(a) to 138(c) of Negotiable Instruments Act, 1881 (for short 'N.I. Act'). The accused has not disputed the issuance of cheque with her signature on the account -5- NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 maintained in Karnataka State Co-operative Apex Bank Ltd., Bengaluru. Complainant has filed the present complaint in terms of Section 142(b) of N.I. Act. Therefore, statutory presumptions in terms of Section 118 and 139 of N.I. Act will have to be drawn.
6. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in APS FOREX SERVICES PVT. LTD. vs. SHAKTI INTERNATIONAL FASHION LINKERS AND OTHERS reported in AIR 2020 SC 945, wherein it has been observed and held that once the issuance and signature on the cheque is admitted, there is always a presumption in favour of the complainant that there exist legally enforceable debt or liability. Plea by accused that cheque was given in view of security and same has been misused by complainant, is not tenable.
7. It also profitable to refer another judgment of Hon'ble Apex Court in P. RASIYA vs. ABDUL NAZER AND ANOTHER reported in 2022 SCC Online SC 1131, wherein it has been observed and held that:- -6-
NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 "Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability. The presumption under Section 139 of N.I. Act is statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case it is for the accused to prove the contrary."
8. In view of the principles enunciated in the aforementioned two judgments of Hon'ble Apex Court, it is evident that when once issuance of cheque with signature of accused on the account maintained by her is admitted or proved, then statutory presumption in terms of Sections 118 and 139 of N.I. Act will have to be drawn.
9. It is now upto the accused to place rebuttal evidence to displace the statutory presumption available in favour of the complainant in terms of Sections 118 and -7- NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 139 of N.I. Act and the burden of placing rebuttal evidence to displace the statutory presumption is on the accused.
10. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in BASALINGAPPA vs. MUDIBASAPPA reported in 2019 Cr.R. 639 (SC), wherein it has been observed and held that:
"Presumption under Section 139 is rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence laid by him or accused can also rely on materials submitted by complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from materials brought on record by parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Section 139 imposed an evidentiary burden and not a presumptive burden".
11. The Hon'ble Apex Court in the latest decision in RAJESH JAIN vs. AJAY SINGH reported in 2023 SCC -8- NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 Online 1275, wherein it has been held that burden of placing rebuttal evidence to displace the statutory presumption available in favour of complainant is on accused.
12. In view of the principles enunciated in both the aforementioned judgments of Hon'ble Apex Court, it is evident that the accused to probabilise his defence can rely on his own evidence or also can rely on material submitted by complainant. It is not necessary for the accused to step into witness box to probabilise his defence.
13. In the present case, it is the specific defence of accused that she has given blank signed cheque as security for loan of Rs.2,00,000/-, which she has taken from the complainant. Learned counsel for revision petitioner/accused during the course of his arguments also contended that no specific date is pleaded in the complaint as to when money of Rs.11 Lakhs was given to the accused and secondly, source of income of the -9- NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 complainant has not been proved. The accused in order to probabilise the said defence apart from relying on the material brought on record during the course of cross examination of PW1, also relied on her own evidence as DW1. The said defence of accused has to be appreciated with the material evidence placed on record.
14. The complainant in the complaint averments has pleaded about the month and year on which she has given money of Rs.11,00,000/- to the accused. It is true that no specific date is mentioned in the complaint. There is no legal requirement to specifically plead the date on which loan was given to the accused. The issuance of cheque with signature of the accused is not disputed by the accused. It is the defence of accused that she has taken hand loan of Rs.2,00,000/- from the complainant and as a security for the said loan, she has given blank signed cheque to the complainant and the same has been misused by the complainant. The accused has not replied to the demand notice Exhibit.P-4 inspite of due service of
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NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 demand notice vide acknowledgement card Exhibit.P-6. The accused on the first available opportunity has failed to make any basic foundation of the defence which she has taken during cross examination of PW1. The accused has also not given particulars during the course of her evidence as to when she has taken hand loan of Rs.2,00,000/- from the complainant and the date on which she has given blank signed cheque to the complainant. In all probability, the alleged transaction of accused about she having taken loan of Rs.2,00,000/- must have taken prior to the present transaction in the month of January 2013. The accused apart from not furnishing any particulars as to when she has taken hand loan of Rs.2,00,000/- from the complainant, also has not taken any steps against the complainant for misusing the blank signed cheque alleged to have been given by her and the same has been misused by the complainant. The accused even during the course of her evidence before the trial court, also did not give any particulars as to what action she has taken against the complainant for misusing the
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NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 blank signed cheque given by her. Therefore, the said defence taken for the first time by the accused during cross examination of PW1, without there being any corroborative documents to that effect, the defence of accused that she has given blank signed cheque to complainant as a security for loan of Rs.2,00,000/- is taken from the complainant, cannot be legally sustained.
15. It is true that there was no written document evidencing the loan transaction claimed by complainant, except the defence of accused herself that she has taken loan of Rs.2,00,000/- from the complainant and at that time also, no document was taken by the accused evidencing the said transaction. It means that complainant and the accused had the financial transactions between them and the accused used to borrow loan from the complainant without any written document evidencing such transaction.
16. The accused has challenged the financial capacity of complainant to lend huge money of
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NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 Rs.11,00,000/- as loan to the accused. This defence was not made known to the complainant by making any basic foundation by giving reply to the demand notice Ex.P-4 inspite of due service of same Ex.P-6. The accused has not chose to avail the first available opportunity to put forth her defence so that it can give an opportunity to the complainant to prove the fact of her source of income and also as to how she mobilized the funds to lend loan to the accused.
17. Complainant/PW1 during course of her evidence stated that she has pledged her gold articles and mortgaged the house and the said money has been given to the accused. It is true that complainant has not produced any documents to that effect. Undisputedly, accused is working as Assistant Professor in Dr.Ambedkar College and was aware of the worldly affairs and also the consequences of issuing blank signed cheque. The accused has pleaded her ignorance about the avocation of her husband. Complainant has offered an explanation
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NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 regarding the circumstances under which she has given loan amount to the accused. The accused along with her husband was running chit fund business and due to urgency made out by the accused, she arranged money by mortgaging the house and pledged her ornaments. The said fact has not been denied by the accused during her evidence before the Court. Therefore, it will have to be accepted that the complainant has got the capacity to mobilize the fund of Rs.11,00,000/- to pay loan to the accused. The accused is highly educated and working as Assistant Professor in Dr.Ambedkar College and aware of consequences in issuing blank signed cheque. However, inspite of such background, she did never questioned about the complainant misusing her blank signed cheque by taking any legal action against the complainant. The accused has not denied that she has taken loan from the complainant, but only claims that she has taken Rs.2,00,000/- loan and not Rs.11,00,000/- as claimed by the complainant. However, apart from the oral testimony of accused in the form of DW1, there are no other material
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NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 evidence brought on record by the accused to probabilize her defence.
18. The material brought on record during cross examination of PW1 and in the evidence of her as DW1, would not be sufficient to probabilize the defence of accused that she has taken loan of Rs.2,00,000/- and as a security for the said loan, issued blank signed cheque, so also complainant has no financial capacity, cannot be legally sustained.
19. When once issuance of cheque is admitted and proved by complainant out of evidence of PW1 and documents at Exs.P1 to Ex.P-6, then statutory presumption in terms of Section 118 and 139 of N.I. Act will have to be drawn in the absence of any rebuttal evidence of accused or when the rebuttal evidence placed by the accused cannot be legally sustained, then the statutory presumption will continue to operate in favour of complainant. The Courts below have rightly appreciated the oral and documentary evidence placed on record and
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NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 justified in holding that the complainant has proved that accused has committed an offence punishable under Section 138 of N.I. Act. The said findings recorded by the Court below are based on legal evidence on record.
20. Now coming to the question of imposition of sentence is concerned, the trial court has sentenced the accused to pay a fine of Rs.11,32,000/- and out of it, Rs.11,22,000/- is ordered to be paid to the complainant by way of compensation and remaining amount of Rs.10,000/- is ordered to be defrayed as prosecution expenses. Looking to the period for which the accused has withhold the money due to the complainant, the imposition of sentence also does not call for any interference. Consequently, I proceed to pass the following:
ORDER Criminal Revision Petition filed by the revision petitioner is hereby dismissed devoid of any merits.
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NC: 2023:KHC:42683 CRL.RP No. 1045 of 2015 Registry to send back the records to trial court with the copy of this order.
SD/-
JUDGE DR List No.: 1 Sl No.: 13