Karnataka High Court
Smt Dhanalakshmi vs Sri Ramesh on 17 September, 2019
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL REVISION PETITION No.409/2015
BETWEEN:
Smt. Dhanalakshmi
W/o Arumugam R.,
Asged about 50 years
R/at No.689/12, 10th 'A' Main,
Jayanagar 4th Block
Bengaluru-560 011.
...Petitioner
(By Sri S.Munibyre Gowda, Advocate-Absent)
AND:
Sri Ramesh
S/o late T.G.Kimal Singh
Aged about 50 years
R/at 65/1A, 8th Main, 4th Cross,
Jayanagar 3rd Block
Bengaluru-560 011.
...Respondent
(By Sri B.S.Raghuprasad, Advocate)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the order and
judgment dated 14.10.2014 passed by the XXII ACMM,
Bengaluru in C.C.No.4945/2014 and dated 26.03.2015
passed by the Presiding Officer, Fast Track Court-IX,
Bengaluru in Criminal Appeal No.1245/2014.
-2-
This Criminal Revision Petition coming on for Orders,
this day the Court made the following:-
ORDER
The present petition has been filed by the petitioner/accused challenging the legality and correctness of the judgment passed by Presiding Officer, Fast Track Court-IX, Bengaluru City, in Criminal Appeal No.1245/2014 dated 26.3.2015.
2. I have heard the learned counsel for the respondent. Petitioner and the counsel remained absent. Since the criminal revision petition cannot be dismissed for default, the same is heard on merits.
Though this case is listed for hearing on Interlocutory Application, with the consent of the learned counsel for the respondent the same is taken up for final disposal, since on the last occasion also the learned counsel for the petitioner has remained absent.
3. The case of the complainant before the Court below is that the accused and the complainant were known -3- to each other. Accused represented that they are the owners of site bearing No.15 formed in Sy.No.26 of Naganathanapura Village, which comes under BBMP limits, Ward No.191 measuring 40 ft. East to West, 30 ft. North to South. Accused and her husband negotiated for selling the said property in favour of the complainant. Complainant agreed to purchase the same for a sum of Rs.11,25,000/- and an agreement of sale was also entered on 13.2.2013. On the date of agreement complainant paid Rs.3,00,000/- cash and Rs.2,50,000/- through cheque. It is further contended that by executing two sharas dated 27.3.2013 and 20.4.2013 accused received a further sum of Rs.2,25,000/-. It is further contended that the complainant paid a total sum of Rs.5,25,000/- out of the said sale consideration. It is his further case that he has invested an amount of Rs.1,00,000/- in the site by putting the shed and barbed fence.
-4-
4. Though complainant was ready and willing to pay the balance consideration and requested to execute the sale deed, accused did not meet the demand and the complainant while enquiry, he came to know that the accused and her husband has already sold the said property to another person. Complainant requested to refund the earnest money which they have received. Accused keep on postponing and by intervention of well- wishers the matter was settled. Accused issued two cheques bearing Nos.016945 and 016950 dated 25.07.2013 drawn on Canara Bank. When the said cheques were presented, they have returned with unpaid shara as 'insufficient funds'. Thereafter, a legal notice came to be issued and the same was served. Accused did not responded or complied by paying the amount and as such the complaint was filed. Thereafter, the learned Magistrate took the cognizance and after securing the accused plea was recorded. Accused pleaded not guilty, he claims to be tried and as such trial was fixed.
-5-
5. In order to prove his case complainant got himself examined as PW1 and got marked Exs.P1 to P16. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. and accused got examined herself as DW1 and she has not marked any documents. Thereafter, after hearing the learned counsel appearing for the parties, the Court below came to the conclusion that the complainant has proved the case and convicted the accused and imposed a fine of Rs.6,55,000/-. Being aggrieved by the said order the accused preferred an appeal and the appeal was also dismissed by confirming the order of the trial Court.
6. It is contended in the petition that the Court below without considering the material placed on record has wrongly convicted the accused. It is further contended that the said site was in the name of the petitioner's husband and her husband received the sale consideration amount and at any point of time the petitioner has not received any amount from the complainant and as such there was no -6- debt or liability. This aspect has not been properly considered and appreciated by the Courts below. It is further contended that the signature found at Ex.P11- the agreement of sale and even the cheque have been disputed. It is further contended that it is in the knowledge of the amount advanced to the husband of the petitioner/accused, the case has been registered. It is further contended that the learned Magistrate has not perused the evidence of PW1 and DW1 and has passed the illegal order. On these grounds he prayed to allow the petition and to set aside the impugned order.
7. Per contra, the learned counsel appearing on behalf of the respondent/complainant vehemently argued and submitted that the agreement of sale entered into between the accused and her husband has been got marked at Ex.P11 and in the said agreement the advancement of the amount has also been specifically stated. It is his further submission that subsequently the said site has been sold to 3rd person and when the matter was brought before the -7- elders, the accused has issued the cheque Exs.P1 and P2. It is the specific contention of the petitioner/accused that the said cheque has been issued to the husband of the accused and the same has been misused. But in order to substantiate the said fact no evidence has been adduced. The Court below has rightly drawn the presumption and has rightly convicted the accused. On these grounds he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the respondent and perused the evidence and the trial Court records.
9. In order to prove the case of the complainant, complainant got examined himself as PW1. During the course of cross-examination it has been suggested that the cheques have been given by the husband of the petitioner/accused and the said cheques have been misused by the complainant. The said suggestion has been -8- denied, thereby accused admits the signature found at Exs.P1 and P2. When once the accused admits the signature on the cheques Exs.P1 and P2, then under such circumstances the provisions of Section 139 of the Negotiable Instruments Act will come into picture and the Court is duty bound to draw the presumption that there exists a legally enforceable debt or a liability. This presumption is rebuttable in nature and it is given to the accused to raise the defence, wherein the existence of legally enforceable debt or a liability can be contested. Though the accused got himself examined as DW1, in her evidence no substantial evidence has been brought on record to rebut the said presumption. When once the said presumption if it has been rebutted, then under such circumstances, the case of the complainant stands proved. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Rangappa Vs. Sri.Mohan reported in (2010) 11 SCC 441, wherein at paragraph 16 it has been observed as under:-
-9-
16. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that:
"6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption.
What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of
- 10 -
rebuttal evidence must be probable and capable of being accepted by the Court.
The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. ..."
Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act.
Accordingly, the High Court recorded a finding of conviction.
10. On going through the said decision, the same proposition of law has also been reiterated by the Hon'ble Apex Court in the case of Bir Singh v. Mukesh Kumar
- 11 -
reported in (2019) 4 SCC 197, wherein at paragraphs 18, 20 and 24 reads as under:
18. In passing the impugned judgment and order dated 21-11-2017 [Mukesh Kumar v. Bir Singh, 2017 SCC OnLine P&H 5352] , the High Court misconstrued Section 139 of the Negotiable Instruments Act, which mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque.
19. xxxxxxx
20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption
- 12 -
of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001 SCC (Cri) 960] .
21. xxxxxx xxxxxx xxxxxx
22. xxxxxx xxxxxx xxxxxx
23. xxxxxx xxxxxx xxxxxx
24. In K.N. Beena v. Muniyappan [K.N. Beena v. Muniyappan, (2001) 8 SCC 458 :
2002 SCC (Cri) 14] , this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a
- 13 -
debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability.
11. On going through the said paragraphs it indicates that Section 139 of the N.I. Act mandates that unless the contrary is proved, it is presumed that the holder of the cheque received the cheque amount referred to in Section 138 of the Act for discharge in whole or part for any debt or other liability, then the burden shifts upon the accused to
- 14 -
prove by cogent evidence that there was no debt or liability. Mere denial or rebuttal by the accused was not enough. On going through the evidence of DW1 it has been contended that the said transaction has been entered into by the husband of the accused and she is not aware of the said fact. During the course of cross-examination he has admitted that on 14.8.2013 when the GPA holder Narayanappa has entered into an agreement of sale of site No.15 and she has also admitted the signature on Ex.P12 and she has also admitted the execution of Ex.P11, even she has admitted the fact that after return of the cheque, she has received the notice and she has not given any reply to the said notice. She has further contended that her husband told her not to worry about the same and as such she kept quite. Except that nothing has been elicited. During the course of cross-examination she has suggested to PW1 that the said cheque has been given to the husband for encashment and the same has been misused by him by giving to the complainant. But for the reasons best known
- 15 -
to her she has not got examined her husband even to rebut the prosecution. In her evidence nothing has been produced nor the said presumption has been rebutted.
12. When once the cheque is pertaining to her account and bears the signature and in the absence of proper explanation the case of the complainant stands proved. The trial Court after considering all the facts and circumstances has rightly come to a right conclusion and accused has been convicted. The petitioner/accused has not made out any good grounds to interfere with the order of the trial Court. The same deserves to be confirmed.
With the discussion held by me above, the petition is devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.
IA No.1/2019 does not survive for consideration and the same is also dismissed.
Sd/-
JUDGE *AP/-