Karnataka High Court
Sri. Gurupadaswamy vs Sri M. Partha on 14 October, 2014
Equivalent citations: 2015 ACD 498 (KAR), 2015 (3) AIR KANT HCR 513, (2015) 1 NIJ 626, (2015) 1 CRIMES 344, (2015) 2 BANKCAS 246, (2015) 4 KCCR 3938, (2015) 4 ALLCRILR 495, (2015) 1 CURCC 156, 2015 (1) CRIMES 92 SN
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14th DAY OF OCTOBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.498 OF 2014
BETWEEN:
Sri. Gurupadaswamy,
Son of Puttaswamappa,
Aged about 47 years,
Son of Madarahalli Madappa,
Residing at Bhogaiahna Hundi Village,
Kotekere Post,
Gundlupet Taluk,
Chamarajanagara District.
PIN - 571 111.
...PETITIONER
(By Shri. H.P. Leeladhar, Advocate)
AND:
Sri. M. Partha,
Son of Late S. Madappa,
Aged about 38 years,
Residing at Banana Merchant,
Shop No.195,
Devaraja Market,
Mysore - 570 001.
...RESPONDENT
(By Shri. L. Govindaraj, Advocate)
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This Criminal Revision Petition is filed under Section 397
read with 401 of the Code of Criminal Procedure, 1973, praying to
set aside the judgment, conviction and sentence dated 7.2.2012
passed by the III Additional I Civil Judge and Judicial Magistrate
First Class, Mysore in C.C.No.1912/2008 convicting the petitioner
herein under Section 138 of N.I.Act and also order of the appellate
Court dated 30.5.2014 passed by the Prl. District and Sessions
Judge, Mysore in Crl.A.No.44/2012 and acquit the petitioner by
allowing the revision petition.
This Criminal Revision Petition having been heard and
reserved on 15.09.2014 and coming on for pronouncement of
Orders this day, the Court delivered the following:-
ORDER
The petitioner was the accused in a complaint for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the 'NI Act', for brevity).
2. It was alleged that the petitioner herein had obtained a hand loan of Rs.1.50 lakh from the respondent as on 10.12.2007. It is stated that he had issued a cheque for the said amount, in due repayment thereof, vide cheque dated 10.2.2008. The cheque is said to have been returned dishonoured when presented for encashment, on the ground that the funds were insufficient in the bank account of the petitioner, as per the banker's endorsement dated 21.2.2008. The respondent is then said to have issued a legal 3 notice dated 7.3.2008, which was shown to have been duly served on the petitioner, as on 1.6.2010. It is stated that the petitioner did not reply.
A complaint having been filed in the above background, the same was contested by the petitioner by filing formal objections, to the effect that he had not borrowed any money as he was never in any need for the same. Though no evidence was tendered by the petitioner, it was suggested in the cross examination of the respondent, that the petitioner was well off and did not need to borrow any money.
The trial court had held that the petitioner had not explained nor sought to challenge the manner in which the cheque in question may have come into the hands of the respondent. The petitioner was accordingly found guilty and was sentenced to imprisonment for three months and was also held liable to pay a total fine amount of Rs.1.55 lakh, of which Rs.1.50 lakh was to be paid to the respondent.
The said judgment was challenged in appeal. A ground urged was that the purported loan, according to the respondent, 4 was made to meet the expenses of the petitioner's daughter's wedding. It was contended this was false and misleading as the wedding of the petitioner's daughter had taken place in February 2007, whereas the loan was made in December 2007. On this issue, the matter was said to have been remitted to the trial court to record additional evidence.
On remand, the petitioner is said to have introduced one more ground of defence, to the effect that the cheque had been issued to some other person, which however, appeared to have fallen into the hands of the respondent, who was seeking to misuse it.
The appellate court however, negated all the additional defences set up, while assigning reasons as to why it could not be believed and affirmed the judgment of the trial court.
It is that which is sought to be challenged in this petition.
3. It is contended by the learned counsel for the petitioner that there is an initial burden cast on the respondent to establish that he had the means to lend money to the petitioner. Reliance is placed on the decision in Krishna Janardhan Bhat v. Dattatraya 5 G.Hegde, (2008)4 SCC 54 and John K. Abraham v. Simon C. Abraham, (2014) 2 SCC 236.
That the cheque was not in the handwriting of the petitioner and therefore it ought to be construed as there being a material alteration made on the cheque.
That it was contrary to the procedure prescribed under Section 145 of the NI Act to receive evidence of the accused by way of an affidavit and hence, the proceedings were vitiated. Reliance is placed on the decision in H.Bhagya v. R.Savithramma, 2013(1) KCCR 834, in this regard.
The learned counsel for the respondent, on the other hand, seeks to justify the judgments of the courts below.
4. In the light of the above and on an examination of the case law, it is to be seen that in so far as the contention that there was an initial burden cast on the respondent - complainant to establish that he had the means to lend money to the petitioner, relying on the decision in Krishna Janardhan Bhat, supra, is concerned - a subsequent judgment by a three judge bench of the Supreme court in the case of Rangappa v. Mohan, 2010 CrLJ 6 2871 ( SC) , has held that the presumption mandated by Section 139 of the NI Act does indeed include the existence of a legally enforceable debt or liability and to that extent the observation in Krishna Janardhan Bhat was not correct. It was further held that presumption however, is a rebuttable presumption and that it was open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there could be no doubt that there is an initial presumption which favours the complainant. That Section 139 of the NI Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. It is device to prevent undue delay in the course of litigation. If the accused is able to raise a probable defence, which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused may even rely on materials submitted by the complainant himself, without having to lead any independent evidence, in order to raise such a defence.
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In so far as the reliance sought to be placed on the decision in John K. Abraham's case is concerned, it is to be seen that the apex court has dealt with the case entirely on the facts of the case in coming to the conclusion that the accused had successfully rebutted the presumption that the cheque in question was not issued in discharge of any legal liability. The petitioner cannot draw any sustenance from the said decision on facts.
As regards the objection to the procedure followed in recording the evidence of the petitioner, who was the accused, by permitting him to tender his examination-in-chief by way of an affidavit, and the same being contrary to the law laid down in the case of Mandvi Co-op Bank Ltd. case, is concerned, the challenge to the said procedure having been followed therein was brought by the complainant, in that case as well as a decision of this court, where the same has been applied, the petitioner who has availed of the procedure at his option is hardly in a position to question the same. This was not a grievance of the petitioner before the appellate court, when such a ground was open to him. In any event, on remand by the appellate court , though the petitioner had 8 filed another affidavit by way of examination-in-chief, he had entered the witness box and endorsed the statements made in his affidavit and was then subjected to cross examination, which would constitute sufficient compliance with the procedure. More importantly, the petitioner does not demonstrate as to the prejudice that is caused on account of the procedure that is followed.
There is hence no merit in this petition on points of law urged.
5. On facts, it is seen that in the present case on hand, in order to claim that there was no legally enforceable debt or liability, the petitioner had sought to urge - that the respondent was a complete stranger to him and that he had never issued a cheque in his favour, a blank cheque duly signed by the petitioner, which may have been issued to another, was sought to be misused. Further that the claim he had borrowed money to perform his daughter's wedding and the cheque was issued in repayment of the loan was sought to be negated by the petitioner producing a, invitation card of his daughter's wedding, which was much prior 9 to the date of the alleged loan. It was also contended that the petitioner had a good agricultural income and did not need to borrow money. The petitioner had also claimed that he was an illiterate man and the cheque had been filled in by the respondent himself, which according to the petitioner amounted to a material alteration.
All of the above contentions have been squarely and cogently dealt with by the appellate court. Some of the contentions were urged for the first time before the appellate court, in the second round. None of the findings warrant interference by this court, especially in its revisional jurisdiction.
Accordingly, the petition is dismissed. The bail bond furnished by the petitioner stands cancelled.
Sd/-
JUDGE nv*