Karnataka High Court
Sri. Puttaswamy vs N Krishnaiah on 28 March, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO.888/2012
BETWEEN:
SRI. PUTTASWAMY
S/O LATE SIDDAIAH
AGED ABOUT 49 YEARS
'D' GROUP EMPLOYEE
ORIENTAL INSURANCE COMPANY LTD
DIVISION OFFICE NO.1
THEJAS COMPLEX
SAYYAJIRAO ROAD
MYSORE
... PETITIONER
(BY SRI. A R HOLLA, ADV.,)
AND:
N KRISHNAIAH
S/O SRI NINGEGOWDA
AEGD ABOUT 62 YEARS
R/AT KUMBARAGERI
SRIRANGAPATNA TOWN
... RESPONDENT
(BY SRI. V SRINIVAS, ADV.,)
THIS CRL.RP IS FILED U/S.397 AND 401 CR.P.C
PRAYING TO SET ASIDE THE SENTENCE DATED
30.01.2012 PASSED BY THE ADDL. CIVIL JUDGE (JR. DN.)
& J.M.F.C., SRIRANGAPATNA IN C.C.NO.255/2007 AND
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ORDER SENTENCE DATED 06.08.2012 PASSED BY THE
P.O., F.T.C., SRIRANGAPATNA IN CRL.A.NO.22/2012.
THIS CRL.R.P. HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF ORDERS, THIS
DAY, PRADEEP D. WAINGANKAR J., PRONOUNCED THE
FOLLOWING:
ORDER
This Criminal Revision Petition is preferred under Section 397 r/w Section 401 of Cr.P.C challenging the judgment dated 30.01.2012 in C.C.No.255/2007 on the file of the Additional Civil Judge, Junior Division and JMFC at Srirangapatna, whereby the revision petitioner/accused has been convicted for the offence punishable under Section 138 of N.I. Act and has been sentenced to pay a fine of Rs.1,65,000/- and in default, to undergo Simple Imprisonment for a period of six months, which has been confirmed by the Fast Track Court at Srirangapatna in Criminal Appeal No.22/2012 by judgment dated 06.08.2012.
2. The revision petitioner was the accused before the Magistrate and the respondent was the 3 complainant. The complainant and accused were known to each other. The accused borrowed a sum of Rs.1,50,000/- from the complainant in the month of February 2007 and towards repayment of the same, the accused issued a post dated cheque for Rs.1,50,000/- drawn on Indian Overseas Bank, Main Bracnh, Mysore. On presentation of the cheque, it came to be dishonoured with an endorsement "Account Closed". The accused was made aware of the dishonour of the cheque by issuance of a legal notice and he was called upon to pay the cheque amount within a stipulated period of time both by RPAD and Under Certificate of Posting. But inspite of service of notice, the accused neither paid the amount nor gave reply to the notice. So, a complaint came to be filed against the accused for the offence punishable under Section 138 of N.I. Act.
3. The accused having pleaded not guilty, the complainant in order to establish the charge levelled against the accused examined himself as PW-1 and examined one Ramesha as PW-2 apart from marking 4 Exs.P1 to P8. The accused, on the other hand, got himself examined as DW-1 and relied upon Exs.D1 to D5. The learned Magistrate upon hearing both the learned counsel appearing for the accused and the complainant and upon consideration of the entire material placed on record, by his judgment dated 30.01.2012 convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced him to pay a fine of Rs.1,65,000/-. Criminal Appeal No.22/2012 filed by the accused against his conviction and sentence came to be dismissed by judgment dated 06.08.2012.
4. Questioning the legality and correctness of the judgment passed by both the Courts below, this revision petition is preferred.
5. I have heard the learned counsel for the revision petitioner and the learned counsel for the complainant. Perused the records.
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6. Learned counsel for the revision petitioner submitted that the cheque which was lost by the accused in the market has been misused by the complainant and that there was no liability to pay an amount of Rs.1,50,000/- as shown in the cheque towards complainant and hence, the counsel sought for reversal of the judgment of conviction and sentence and for acquittal of the revision petitioner/accused.
7. Learned counsel appearing for the respondent/complainant, on the other hand, submitted that both the accused and the complainant were friends, that they were known to each other, that the accused approached the complainant for a loan amounting to Rs.1,50,000/- and accordingly, the complainant paid the loan amount and towards the repayment, the accused issued a post dated cheque and when the cheque was presented, it came to be dishonoured. It is further submitted that both the Courts below upon consideration of the evidence rightly convicted the accused, that there is no merit in this 6 revision petition. Hence, he sought for dismissal of the revision petition.
8. From the perusal of the entire material placed on record, it is evident that the cheque in question is the cheque belonging to the accused. The accused has admitted the signature in the cheque. When the cheque was presented for collection, it came to be dishonoured. Notice was issued to the accused informing the factum of dishonour of the cheque and calling upon to pay the cheque amount. Notice was served upon the accused. But he neither paid the cheque amount nor gave reply to the notice and hence complaint came to be filed. In order to establish the same, the complainant apart from his oral evidence produced necessary documents. Ex.P2 is the cheque in question for Rs.1,50,000/-. Ex.P3 is an endorsement given by the Karnataka Bank limited informing the dishonour of the cheque. Ex.P4 is the memo issued by the Indian Overseas Bank showing the reasons for the dishonour of the cheque as "Account Closed". Ex.P5 is 7 the office copy of the legal notice dated 08.03..2007 issued to the accused by the complainant informing him the factum of dishonour of the cheque and calling upon him to pay the cheque amount. Ex.P6 is the acknowledgment for having sent the notice by Under Certificate of Posting. Ex.P7 is the acknowledgment for having sent the notice by RPAD which came to be returned with an endorsement referred to the signature. Ex.P8 is the notice sent to the accused by Under Certificate of Posting which came to be returned. The accused has not denied or disputed his address shown in the RPAD cover as well as Under Certificate of Posting. Notice sent to him by RPAD came to be returned with an endorsement refused. Therefore, it has to be presumed that the notice was duly served on him. He has not replied to the said notice nor he paid the cheque amount and thereby it gave a cause of action for the complainant to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act. Thus, all the mandatory requirements 8 to file a complaint for the offence punishable under Section 138 of N.I. Act have been duly complied with.
9. The defence of the accused is that he had been to the market along with the cheque book containing all the cheques duly signed by him. He lost the cheque-Ex.P2 in the market. In that connection, he gave information to the Devaraja Police Station at Mysore on 04.3.2005, the copy of which is marked as Ex.D1. Ex.D2 is the registered acknowledgement due for having received the notice by the Sub-Inspector of Police, Devaraja Police Station. Ex.D3 is a slip for having received the complaint from the accused. Ex.D5 is the copy of the intimation sent to the Manger Indian Overseas Bank, Ashoka Road, Mysore that the accused lost all the 10 cheques and the pass book. Ex.D4 is the acknowledgment by the Bank Manager for having received the intimation from the accused by RPAD. Though the accused has produced all these documents to show that he lost entire cheque book containing 10 cheques, whether it is to be believed or not is to be seen 9 from the other evidence placed on record and facts and circumstances of the case. It is very easy to say that the cheque is lost whenever cheque is issued towards discharge of liability, knowing fully well that there was no amount in the account. The accused has not produced his Pass-book to show that as on the relevant date, he had sufficient money in his Bank Account. The accused has admitted in his evidence that the complainant is his friend. It is also borne out from the evidence on record that the complainant was working in TAPCMS, Srirangapatna and the accused was working in Oriental Insurance Company. It has also come in the evidence that both the accused and the complainant were residing in the same building. At the time of advancing of the loan to the accused, the complainant had retired and had received retirement benefits. It has also come in the evidence that the complainant has got landed property from which he was getting income. Therefore, so far as the capacity of the complainant to advance a loan amount of Rs.1,50,000/- cannot be 10 doubted. Learned Magistrate, upon appreciation of the evidence came to the conclusion that the cheque was issued by the accused towards discharge of his debt or liability. The said finding has been confirmed by the Sessions Judge on re-appreciation of the evidence.
10. At this stage, it has to be stated that whenever a cheque is issued, it shall be presumed unless contrary is proved that the holder of the cheque received the cheque in whole or in part of any debt or any other liability. Thus, there is a legal presumption under Section 139 of N.I. Act that the cheque was issued for discharging antecedent liability and that presumption can be rebutted only by the person who drew the cheque. It has been held in the decision of the Supreme Court reported in 2013 (4) Crimes 393 (SC) (C. Keshavamurthy vs. H.K. Abdul Zabbar) that the presumption under Section 139 of the Act also includes the presumption of existence of a legally enforceable debt or liability. The ratio reads as under: 11
"Negotiable instruments Act, 1881- Sections 138 and 139 - Offence of dishonour of cheque - Presumption under Section 139 of the Act includes the presumption of existence of a legally enforceable debt or liability - High Court set aside the conviction in revisional jurisdiction accepting plea of respondent accused that he had issued notice to complainant to not to present the cheque - Admittedly cheques subject matter of the case were the issued by accused subsequent to issuance of his notice and that notice referred to some earlier cheques - Burden was on accused to disprove the allegations once a prima facie case was made out by complainant - Conviction recorded by Sessions Court was liable to be restored."
11. Thus, it is evident that the presumption under Section 139 of N.I. Act is presumption in respect of liability as well as in respect of existence of liability, meaning thereby the complainant need not required to prove the existence of liability. When the presumption is in respect of liability and the existence of liability under Section 139 of N.I. Act as held by the Supreme 12 Court, the burden is on the accused to rebut the presumption either by producing his own evidence or by pointing out his defence from the evidence of the prosecution. As I have stated, the defence of the accused is that he lost cheque book containing 10 cheques signed by him. It is impossible to believe for the reason that no prudent person would sign all the ten cheques contained in one book. Therefore, though the accused has given information to the Bank and the police that he lost the cheque book containing ten cheques duly signed by him, it does not inspire the confidence of the Court. As such, it is impossible to accept the said defence putforth by the accused. It is needless to say that in order to get rid of his liability to pay the amount under the cheque, he has taken such a defence. Thus, both the Magistrate and the Sessions Judge have rightly convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced to pay a fine of Rs.1,65,000/-. I do not find any merit in the revision petition. Hence, I pass the following order. 13
Criminal Revision Petition is dismissed.
Sd/-
JUDGE PMR