Karnataka High Court
Revanappa vs Narasingha Naik on 3 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1584, 2019 (4) AKR 630 (2020) 1 KCCR 606, (2020) 1 KCCR 606
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, , 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL REVISION PETITION No.1269/2015
BETWEEN:
Revanappa
S/o Rudrappa
Aged about 55 years
Residing at Balur Village
Shikaripura Taluk-577 427
Shivamogga District-577 201.
...Petitioner
(By Sri N.G.Parameswarappa, Advocate-Abesent)
AND:
Narasingha Naik
S/o Thevarayanaika
Aged about 39 years
Residing at Balur Village
Shikaripura Taluk
...Respondent
(By Sri H.K.Basavaraj, Advocate)
This Criminal Revision Petition is filed under Section
397 of Cr.P.C praying to aside the impugned order dated
03.10.2015 in Criminal Appeal No.910/2011 as per
Annexure-A passed by III Additional District and Sessions
Judge, Shivamogga, and also set aside the judgment and
sentence dated 18.11.2011 in C.C.No.96/2008 passed by
the Civil Judge and JMFC, Shikaripura, Shivamogga
District, as per Annexure-B and acquitted the petitioner.
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This Criminal Revision Petition coming on for
Admission, this day the Court made the following:-
ORDER
The petitioner/accused has preferred the present revision petition being aggrieved by the judgment and order passed by III Additional District and Sessions Judge, Shivamogga, in Criminal Appeal No.910/2011 dated 3.10.2015 whereunder the judgment of Civil Judge and J.M.F.C., Shikaripura in C.C.No.96/2008 dated 18.11.2011 was confirmed.
2. I have heard the learned counsel for the respondent. Though several adjournments have been made, there is no representation on behalf of the petitioner/accused. As the petition cannot be dismissed for default, it has to be heard and decided on merits and as such the case was taken on merits and disposed of by this order.
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3. The case of the complainant in brief is that complainant and accused were familiar with each other and accused was in need of money and requested him to give Rs.50,000/-. Accordingly, complainant advanced Rs.50,000/- on 27.08.2007 and in order to discharge the said amount a cheque bearing No.457545 dated 2.9.2007 was issued for a sum of Rs.50,000/- and when the said cheque was presented through the banker of the complainant, it was returned with a Shara 'Funds Insufficient' and 'stop payment of the drawer' through endorsement dated 3.9.2007. Complainant approached the accused regarding dishonour of the cheque and he gave an untenable reply. As such the complainant got issued a legal notice dated 8.9.2007, demanding payment of the cheque amount, that has been duly served on the accused, but the accused failed to comply with the notice, as such the complaint was registered.
4. The learned Magistrate took the cognizance and recorded the plea and thereafter in order to prove the case -4- of the complainant, he got himself examined as PW1 and got marked seven documents. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. Accused got examined himself as DW1 and also got examined two more witnesses as DWs.2 and 3 and got marked Exs.D1 to D12. After hearing the learned counsel appearing for the parties, the trial Court convicted the accused. Challenging the same, accused preferred the appeal before the learned III Additional District and Sessions Judge, Shivamogga. The appellate Court has also confirmed the order of conviction. Being aggrieved by the same, the petitioner/accused is before this Court.
5. The main grounds urged by the learned counsel for the petitioner in this petition are that, the trial Court without considering the merits and evidence on record has come to a wrong conclusion and has passed an erroneous order. He further contended that the complainant has not satisfied the legal requirement as per Section 138 of the Negotiable Instruments Act. He further contended that the -5- respondent/complainant is not having any capacity to pay the loan and the petitioner was not liable to pay any amount. It is further contended that the said aspects have not been properly appreciated by the trial Court. It is his further contention that the said cheque has not been issued by the petitioner/accused. The said cheque has been stolen. He further contended that there is no legally recoverable debt or liability. It is his further contention that the respondent/complainant with the help of his son Umesh Naik and Rangappa hatched a plan and sent Umesh Naik and Rangappa to the house of the petitioner/accused and they have stolen the cheque of the petitioner and the same has been misused by the complainant by filing the complaint. He further contended that the trial Court without considering the fact that a complaint has also been registered in this regard, has erroneously passed the order. On these grounds he has requested to set aside the impugned order. -6-
6. Per contra, the learned counsel for the respondent vehemently argued and submitted that accused approached the complainant and has taken Rs.50,000/- as a hand loan and has issued a cheque as per Ex.P1 and even after service of notice, he neither repaid any amount nor given any reply. Though defence of the accused is that the cheque was stolen with the help of two other persons and same has been misused, thereby the accused has admitted the signature and the said cheque belongs to the accounts of the accused, a presumption has to be drawn under Section 139 of the Negotiable Instruments Act that the said cheque has been issued in discharge of the legally recoverable debt and liability. It is the specific contention of the defence that the said cheque has been stolen, but no substantial evidence has been produced to substantiate the said fact. The Courts below after considering the said facts and circumstances have rightly come to a right conclusion and have convicted the accused. On these grounds he prayed to dismiss the petition. -7-
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the respondent and perused the records.
8. It is the specific case of the complainant that the accused has borrowed a sum of Rs.50,000/- and has issued a cheque as per Ex.P1 and he has complied the requisites of Section 138 of the Negotiable Instruments Act. It is the contention of the accused that no legal notice has been served on him and the said cheque has been stolen from the house of the accused and he has not issued the cheque towards discharge of any debt. Complainant got examined himself as PW1 and he has also produced seven documents including the cheque and the legal notice. Though it is contended by the learned counsel appearing on behalf of the petitioner that no notice has been served, during the course of cross-examination he has admitted the fact that after receipt of the notice from the complainant, he has lodged a complaint before the police -8- and the police have also held enquiry. When he has admitted that after receipt of the notice he has filed the complaint, then under such circumstances the contention taken up by the petitioner that no notice has been served does not hold any water.
9. The second contention which has been taken up by the petitioner/accused is that, there is no legally recoverable debt or liability. It is the specific case of the accused that the said cheque belongs to him and the signature appeared therein is also belonging to him. Under such circumstances, the Court is duty bound to draw the presumption under Section 139 of the Negotiable Instruments Act that there exists a legally recoverable debt or liability and when once a legal presumption has been drawn, then under such circumstances, the accused can rebut the said presumption on preponderance of probabilities as held in the decision of Hon'ble Apex Court in the case of Rangappa Vs. Sri.Mohan reported in (2010) -9- 11 SCC 441, wherein at paragraph 16 it has been observed as under:-
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
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by way of rebuttal evidence. In other words, the defence raised by way of 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 close reading of the said paragraph the presumption mandated under Section 139 of the N.I. Act
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includes a presumption that there exists a legally enforceable debt or a liability. However, it is left open to the accused to rebut the said presumption on preponderance of probabilities in strict proof of the same.
11. Keeping in view the said proposition of law if the evidence and other material if they are scrutinized, though it is contended that immediately after receipt of the legal notice he has filed the complaint before the police and he has produced Ex.D2, as could be seen from the records the said complaint has been filed only after receipt of the notice and further action has not been taken on the basis of the complaint filed by the accused. If really the said cheque has been stolen, then under such circumstances, the petitioner/accused ought to have persuaded the complaint which he has filed before the police for the purpose of investigation, but no records are forthcoming as to what happened after the complaint is filed.
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12. Be that as it may. If at all the said cheque has been stolen, then under such circumstances, the accused ought to have given the letter to the concerned bank not to encash the said cheque as the said cheque has been stolen. No such letter has also been given to the bank and no notice has also been given to the complainant for having stolen the cheque with the help of one Umesh and Rangappa. Nothing was prevented him to issue notice to the complainant if it is a fact. Leave apart that, when the accused has admitted the signature, what was the necessity of keeping the said cheque in the house after signature and for what purpose the said cheque has been kept has also not been placed on record. No prudent man will keep the cheque easily accessible after signing it. The conduct of the accused, filing the complaint after receipt of the notice shows that accused is trying to avoid the proceedings and payment of the said loan amount. Keeping in view the said facts and circumstances I am of the considered opinion that the petitioner/accused has not
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made out any good grounds so as to interfere with the judgment of the first appellate Court as well as the trial Court, the same deserves to be confirmed.
Accordingly, the petition is dismissed as devoid of merits.
Sd/-
JUDGE *AP/-