Karnataka High Court
Sri Mohammed Ashfaq vs M/S N M Granites on 28 June, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.874 OF 2009
BETWEEN :
Sri. Mohammed Ashfaq,
Son of Burhan Khan,
Aged 35 years,
Resident of No.36, First Cross,
First Main, JHBCS Layout,
Minaznagar,
Bangalore-560 070. ...PETITIONER
( By Shri. S.P.Kulkarni, Advocate )
AND:
M/s. N M Granites,
No.434/D, 6th Cross,
7th Block, Jayanagar,
Bangalore-560 082
1 Iqbal Hussain H.A.,
Son of Abdul Basheer.H.A.,
Major,
2
2 Smt.Faouzia Kahnum,
Wife of Iqbal Hussain.H.A.,
Major,
3 Smt.Maqbuol Jan,
Daughter of Late M.D.Khasim,
Aged 73 years,
4 Sri.H.A.Sardar Ahmed,
Son of Abdul Basheer,
Major,
5 Smt.Hussainunnisa,
Wife of J.A.Sardar Ahmed,
Major,
6 Sri.Amaulla Khan,
Son of Late Habeebulla Khan,
Major,
7 Smt.Salma Taj,
Wife of Fayaz Khan,
Major,
8 Smt.Rizwana Begum,
Wife of Dildar Ahmed,
Major,
9 Sri.H.A.Dildar Ahmed,
Son of Abdul Basheer,
Major,
3
All are availabel at No.432/D,
6th Cross, 7th Block,
Jayanagar, Bangalore-560 082. ...RESPONDENTS
( By Shri. C.R. Subramanya, Advocate for Respondent Nos. 1 to 9 )
*****
This Criminal Revision Petition is filed under Section 397 read
with 401 Criminal Procedure Code, 1973, by the advocate for the
petitioner, praying that this Hon'ble Court may be pleased to set aside
the order of conviction and sentence dated 21.5.2008 made in C.C.No.
12184/2006 passed by the XVI Additional Chief Metropolitan
Magistrate Bangalore City, Bangalore and order dated 13.10.2009
made in Criminal Appeal No.545/2008 passed by the City Fast Track
(Sessions) Judge, Bangalore City, Fast Track Court-II, dismissing the
appeal and confirming the order of conviction and sentence passed by
the trial court.
This Criminal Revision Petition is coming on for Hearing , this
day, the court made the following:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for the respondents.
2. The petitioner was the accused in a complaint by the respondents for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ((Hereinafter referred to as the 'NI Act', for brevity). The complaint was contested by the present 4 petitioner. It was the defence of the petitioner-accused that the cheque in question, which was said to have been dishonoured, was no doubt, a cheque issued on the account of the petitioner and duly signed by him. But it was contended that the same had been presented to the respondents in an earlier transaction as security for carrying out certain obligations under a contract. The same has not been returned after satisfaction of that contract. It was sought to be misused by the respondents. This defence was negated by the trial court after a trial and the petitioner was convicted for an offence punishable under Section 138 of the NI Act and the petitioner was sentenced to pay a fine of Rs.4,49,750/-and the same was payable to the respondents as compensation apart from Rs.20,000/- which was to be paid as fine to the State. This having been challenged in appeal by the present petitioner, a particular ground that was raised was that the transaction under which the respondents were claiming that a cheque had been issued, was, in fact, a bogus transaction, as there was no such transaction at all. In this regard, the petitioner had particularly 5 addressed the circumstance that the alleged transaction involved a large amount of money, which certainly attracted tax liability and in the absence of any material to demonstrate that the taxes had been paid by the respondents on the said amounts of money, it would fortify the case of the petitioner that there was no transaction. This was the rebuttal that was sought to be set up by the petitioner even before the appellate court. At that point of time, the respondent, in order to cure a glaring defect and on account of which, the entire case of the complainant would have been taken away, the respondent sought to produce a document from the Department of Commercial Taxes, to demonstrate that he had subsequently met certain tax liabilities, which would establish the transaction, under which the cheque had been issued. This, according to the learned counsel for the petitioner, was certainly a mischievous design adopted by the respondent to make good the lacuna in the case. In that, the bogus transaction would have revealed the fact that no such liability existed, as the corresponding documents pertaining to payment of 6 taxes were not available. The report, which was sought to be produced before the appellate court, did not pertain to the alleged transaction. It is in that light that the petitioner had filed an application seeking to summon a competent officer from the Commercial Tax Department to be examined on the aspect of, whether or not, the documents sought to be produced by the respondent corresponded to the transaction, under which the cheque in question had been issued. The appellate court however, has rejected that application on the ground that the petitioner had ample opportunity before the trial court to have tendered positive evidence in rebuttal, if the defence was indeed tenable. It is that additional ground, which is sought to be urged in the present petition, to contend that there has been a miscarriage of justice in the appellate court having summarily rejected the application and even if this court is not inclined to interfere with the findings of fact, that circumstance is a glaring circumstance which would necessarily warrant interference by this court in revision, as complete justice is not rendered to the 7 petitioner.
3. In this context, the learned counsel would place strong reliance on a judgment of the apex court, which the learned counsel for the petitioner would submit, was rendered in identical circumstances, wherein in respect of a transaction of sale of carpets, a cheque purportedly having been issued was sought to be produced in a case, for an offence punishable under Section 138 of the NI Act. It is in that backdrop that the apex court has discussed the options available to the accused in a trial under Section 138 of the NI Act and sequence of events vis-à-vis the charges thereto and has expounded as follows:-
"20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as it 8 expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the non- existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of the passing of the consideration and existence of debt, apparently does not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the considerations, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under 9 Sections 118 and 139 of the Act.
21. The accused has also an option to prove the non- existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, therefore, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.
22. The defence of the appellant was that he had agreed to purchase woollen carpets from the respondent and had issued the cheques by way of advance and that the respondent did not supply the carpets. It is the specific case of the respondent that he had sold woollen carpets to the appellant on 6.8.1994 and in discharging of the said liability the appellant had issued two cheques, which were ultimately dishonoured. In support of his case the respondent produced the carbon copy of the bill. A perusal of the bill makes it evident that there is no endorsement made by the respondent accepting the correctness of the contents 10 of the bill. The bill is neither signed by the appellant.
25. Under the circumstances the defence of the appellant that blank cheques were obtained by the respondent as advance payment also becomes probable and the onus of burden would shift on the complainant. The complainant did not produce any books of account or stock register maintained by him in the course of his regular business or any acknowledgments for delivery for goods, to establish that as a matter of fact woollen carpets were sold by him to the appellant on 6.8.1994 for a sum of Rs.1,90,348.39. Having regard to the materials on record, this Court is of the opinion that the respondent failed to establish his case under Section 138 of the Act as required by law and, therefore, the impugned judgment of the High Court is liable to be set aside."
Therefore, the learned Counsel would submit that by a similar token of reasoning, it cannot be said that the petitioner was incapable of rebutting the case of the respondent, if only an opportunity had been granted to the petitioner to place the evidence before the court. It is clear that the Tax Payers Identification Number, has to be indicated in respect of a particular transaction and it should be borne 11 on the invoice that was produced by the respondent as proof of the transaction, in seeking to set up the liability and since no such Tax Payers Identification Number was reflected in the said invoice that was produced before the appellate court, satisfied the court that there was satisfaction of the tax liability pertaining to the very transaction and therefore, the transaction could not be disbelieved and that it could not be held that there was no legal liability, was not available to the respondent and hence there is a miscarriage of justice.
4. The learned counsel for the respondent would vehemently oppose the petition and would reiterate that the petitioner has taken recourse to these tactics through these proceedings. The cheque is of the year 2006 and the matter has run its course for six years in reaching this court. It is seen from the record that the petitioner, at all points of times, had ample opportunity to produce whatever evidence that he wanted to produce before the courts below and this is the stern view taken by the appellate court in its attempt to further procrastinate 12 the matter, by seeking to summon the officials of the Commercial Tax Department. In any event, the courts below having addressed the arguments canvassed by the petitioner, have not been impressed by the same, as there was no cogent material produced by the petitioner. Any such material was not out of the reach of the petitioner and the non-production or the petitioner not having availed of the opportunity to tender such rebuttal evidence, is of the petitioner's own making and his want of diligence and that cannot be a ground, on which the present petition can be allowed. This is the view also expressed by the appellate court. It is also pertinent to mention that the petitioner had even approached this court earlier by way of a revision petition on the very aspect. Therefore, the petitioner's complaint is not new and is only a ruse to further delay and procrastinate the proceedings. He would point out that insofar as the judgment of the apex court which is relied upon is concerned, that was a case where the accused had tendered rebuttal evidence and had summoned an official of the Sales Tax Department, who had positively asserted before the court 13 below that the complainant had filed sales tax returns for the relevant assessment year, indicating that there was no sale transaction, which was claimed as the transaction, under which, the liability for which the cheque was issued in the said case and it is in that light of the matter that the Supreme Court has proceeded to hold that there was no legal liability for which the cheque may have been issued. It cannot therefore be said that the facts of that case and the facts of the present case are identical, in the petitioner seeking to rely on the same and hence, he would submit that the petition be dismissed as there is no injustice caused when the respondent has established its case and the court below has awarded a nominal fine, which does not even match the interest that the money would have accrued over time, if it had been usefully utilized by the respondent and since the petitioner had the illegal benefit of the same, there is no injustice caused.
5. In the above facts and circumstances, the only point for consideration is whether there is a miscarriage of justice and whether 14 the petitioner ought to be granted a further opportunity to tender evidence, to establish that there was no legal liability. It is the case of the petitioner that the material produced by the respondent to demonstrate that there was a legal liability, did not actually pertain to the transaction claimed by the respondent, but was in fact in relation to some other transaction and therefore there was mischief played by the respondent before the appellate court. As rightly pointed out by the learned counsel for the respondent in this regard, the petitioner had ample opportunity to tender rebuttal evidence before the trial court. For not having done, in the face of the respondent having sought to fortify his case before the appellate court, which was also competent to receive evidence and reappreciate the evidence, the petitioner could not at the fag end of the proceedings seek such an opportunity. This does not evoke confidence of the court as to the bona fides of the petitioner. Therefore, it is not a fit case where the petitioner should be granted a further opportunity and in the face of the findings of fact that are ranged against the petitioner, there is no 15 warrant for interference.
The petition stands dismissed.
Sd/-
JUDGE nv