Karnataka High Court
Smt. Bhuvaneshwari vs Sri Nemiraj on 29 November, 2023
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NC: 2023:KHC:43176
CRL.RP No. 513 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 513 OF 2017
BETWEEN:
SMT.BHUVANESHWARI
W/O RUDRAPPA SHETTY,
AGED ABOUT 50 YEARS,
RANGANTHA COLONY,
OPPOSITE TO GOWRI SHANKAR RICE MILL
TALAGUPPA,
SAGAR-TALUK
...PETITIONER
(BY SMT.YOGEETHA MUDAKANNAVAS FOR
SRI. SWAMY SHIVA PRAKASH H., ADVOCATE)
AND:
SRI.NEMIRAJ
S/O MANJUNATH,
AGED ABOUT 38 YEARS,
Digitally SANNIDHI STUDIO,
signed by
SUMITHRA R ANANDAPURAM,
Location: SAGAR TALUK
HIGH COURT ...RESPONDENT
OF (BY SRI.DEEPAK METHRE FOR
KARNATAKA SRI.HARISH KUMAR M.S., ADVOCATE)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C., PRAYING TO
SET ASIDE THE IMPUGNED CONVICTION AND SENTENCE PASSED
BY THE ADDL. CIVIL JUDGE AND J.M.F.C., SAGAR IN
C.C.NO.367/2013 DATED 06.02.2017 AND JUDGMENT PASSED
DATED 20.03.2017 PASSED BY THE V ADDL. DIST. AND S.J.,
SHIVAMOGGA SITTING AT SAGAR IN CRL.A.NO.10004/2017.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2023:KHC:43176
CRL.RP No. 513 of 2017
ORDER
Revision Petitioner/accused feeling aggrieved by the judgment of First Appellate Court on the file of V Addl. District and Sessions Judge, Shivamogga sitting at Sagar, in Crl.A.No.10004/2017, dated 20.03.2017, in confirming the judgment of Trial Court on the file of Addl.Civil Judge and JMFC, Sagar in C.C.No.367/2013, dated 06.02.2017 preferred this Revision Petition.
2. Parties to the Revision Petition are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. Heard the arguments of both sides.
4. After hearing both the sides and on perusal of Trial Court Records with judgment of both the Courts below the following points arise for consideration:
1) Whether the impugned judgment under revision passed by the First Appellate Court in confirming the judgment of the Trial Court for the offence punishable -3- NC: 2023:KHC:43176 CRL.RP No. 513 of 2017 under Section 138 of N.I.Act is perverse capricious and legally not sustainable?
2) Whether any interference by this Court?
5. On careful perusal of oral and documentary evidence placed on record, it would go to show that complainant and accused are known to each other. Accused has taken hand loan of Rs.80,000/- from complainant on 04.07.2012 and assured to repay the same within a period of 2 months. However, accused did not repay the amount to complainant as agreed by her. Accused in order to discharge legally enforceable debt issued cheque bearing No.294002 drawn on State Bank of Mysuru, Sagar Branch dated 06.11.2012 for Rs.80,000/- Ex.P.1. Complainant has presented the said cheque through his banker Canara Bank and the same was dishonored vide Bank endorsement Ex.P.2 as "Funds Insufficient". Complainant issued demand notice dated 21.12.2012 Ex.P.3 through RPAD and the same is duly served to the accused on 22.11.2012 Ex.P.4. If the above -4- NC: 2023:KHC:43176 CRL.RP No. 513 of 2017 referred document with sequence of dates are appreciated with the oral testimony of PW.1 then it would go to show that, cheque issued by accused for lawful discharge of debt was dishonored for want of sufficient fund in the account of accused. Accused has admitted her signature on cheque Ex.P.1 and she has an account in State Bank of Mysuru, Sagar branch. Complainant has complied necessary legal requirements in terms of Section 138(a) to
(c). Therefore, statutory presumption in terms of Sections 118 and 139 of Negotiable Instruments Act, 1881(herein after for brevity referred as "N.I.Act".) will have to be drawn.
6. In this context of the matter, it is useful to refer the judgment of Hon'blel Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945, wherein it has been observed and held that once the issuance and signature on cheque is admitted, there is always a presumption in favour of complainant that there -5- NC: 2023:KHC:43176 CRL.RP No. 513 of 2017 exist legally enforceable debt or liability. Plea by accused that cheque was given by view of security and same has been misused by complainant is not tenable.
7. It also profitable to refer another judgment of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and another reported in 2022 SCC OnLine SC 1131, wherein it has been observed and held that:-
" Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability. The presumption under Section 139 of N.I. Act is statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case it is for the accused to prove the contrary."-6-
NC: 2023:KHC:43176 CRL.RP No. 513 of 2017 In view of the principles enunciated in the aforementioned two judgments of Hon'ble Apex Court, it is evident that when once issuance of cheque with signature of accused on the account maintained by him is admitted or proved, then statutory presumption in terms of Sections 118 and 139 of N.I. Act will have to be drawn.
8. It is now up to the accused to prove by way of rebuttal evidence to displace the statutory presumption available in favour of complainant. In this context of the matter it would profitable to refer the judgment of Hon'ble Apex Court in Basalingappa Vs. Mudibasappa reported in 2019 Cr.R. page No. 639 (SC), wherein it has been observed and held that:
"Presumption under Section 139 is rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence laid by him or accused can also rely on materials submitted by complainant in order to raise a probable defence. Inference of -7- NC: 2023:KHC:43176 CRL.RP No. 513 of 2017 preponderance of probabilities can be drawn not only from materials brought on record by parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Section 139 imposed an evidentiary burden and not a presumptive burden".
9. The Hon'ble Apex Court in the latest decision in Rajesh Jain Vs. Ajay Singh reported in 2023 SCC online 1275, wherein it has been held that burden of placing rebuttal evidence to displace the statutory presumption available in favour of complainant is on accused.
In view of the principles enunciated in both these judgments, it is evident that the accused to probabilise his defence can rely on his own evidence or also can rely on material submitted by complainant. It is not necessary for the accused to step into the witness box to probabilise his defence.
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10. It is the specific defence of accused that she has lost the cheque book containing cheque leaves and pass book and accordingly she intimated to the bank Ex.D.2. She further claims that on receipt of demand notice issued by the complainant she came to know that signed cheque of accused has been misused and as such she filed complaint before the Police on 14.12.2012 Ex.D.3. In support of such contention of accused, reliance is placed on material produced by complainant and also her own evidence as DW.1 with documents Exs.D.1 to D.3.
11. Accused has not disputed her signature on cheque Ex.P.1 drawn on State Bank of Mysuru, Sagar branch where she maintained an account. It is the contention of accused that she lost the cheque book containing cheque leaves and also pass book. As such she has given intimation to the Bank accordingly on 14.09.2012 Ex.D.2. DW.1 during the course of her evidence has reiterated the said contention that she has lost the cheque book containing the cheque leaves and the pass book. On careful perusal of Ex.D.2, the date and time -9- NC: 2023:KHC:43176 CRL.RP No. 513 of 2017 is separately written and on the top of the application there is writing "stop payment" "294001-294025". Accused during the course of her evidence nor in the reply given by her to the demand notice Ex.D.2 has offered any explanation as to who has made such endorsement. It is for accused to place rebuttal evidence and to offer explanation as to who made the said endorsement. Accused could have examined the Bank officials who has acknowledged Ex.D.2 regarding the endorsement found at Ex.D.2. If at all those endorsement were made by the bank officials then on presentation of the cheque by complainant, it should not have been endorsed as "Funds Insufficient". On the other hand there is a specific written reason code "No.20 Payment stopped by drawer'". The bank authority could have refused to honour the cheque, since payment was stopped by drawer. Accused in Ex.D.2 claimed that out of the cheque leaves in the cheque book only one cheque was signed and remaining cheque were unsigned. If at all accused has lost the entire cheque book itself then what happened to the remaining cheque, no
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NC: 2023:KHC:43176 CRL.RP No. 513 of 2017 any explanation has been offered by accused nor examined any bank officials that any of the cheque leaves found in the lost cheque book were not at all used either by accused or the person who found the cheque book lost by accused.
12. Accused filed Police complaint Ex.D.3 on 14.12.2012 admittedly after receipt of demand notice issued by complainant alleging that accused found the cheque book and sought for return of the cheque. This assumption of accused that complainant is in possession of the cheque book and pass book lost by her is without there being any basis and the possibility of taking after thought contention cannot be ruled out. It is also pertinent to note that accused having given reply to the demand notice dated 20.12.2012 with Ex.D.1 has not referred about complainant before the Police Ex.D.3. Therefore, the allegations made in the reply notice Ex.D.1 dated 20.12.2012 and the one made in the Police complaint Ex.D.3 dated 14.12.2012 cannot be relied to substantiate the contention of accused. In so far as the document
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NC: 2023:KHC:43176 CRL.RP No. 513 of 2017 Ex.D.2 said to be an acknowledgement obtained by complainant having intimated the bank about loss of cheque book and pass book is not free from the cloud of doubt regarding the endorsement found on Ex.P.2. According to the evidence of accused, complainant is known to her and he is said to have arranged the marriage of her daughter and she claims to have given his commission charge of Rs.10,000/-. Therefore, even according to her own evidence complainant is known to her. The accused has not brought any circumstances on record regarding the occasion as to how complainant came in possession of cheque Ex.P.1. If for the sake of argument, even if it is assumed that one signed cheque in the cheque book which she has lost was found by complainant and if he had intimation to misuse the same, he would not have mentioned only Rs.80,000/-, he could have claimed higher amount also. Therefore, the contention of accused that accused came in possession of her signed cheque Ex.P.1 which was in the cheque book lost by her does not stands to any sound reasoning. Thus,
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NC: 2023:KHC:43176 CRL.RP No. 513 of 2017 the accused has failed to probabilise her defence, so as to displace the statutory presumption available in favour of the complainant.
13. When once issuance of cheque is admitted and proved by complainant out of the evidence of PW.1 and the documents Exs.P.1 to 4, then statutory presumption in terms of Sections 118 and 139 of N.I.Act will have to be drawn in the absence of any rebuttal evidence of accused or the rebuttal evidence placed by accused cannot be legally sustained, then statutory presumption will continue to operate in favour of complainant. The Courts below have rightly appreciated the oral and documentary evidence placed on record in holding that complainant has proved that accused has committed an offence punishable under Section 138 of N.I.Act. The said findings recorded by both Courts below are based on legal evidence on record.
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14. Now coming to the question of sentence imposed by the Trial Court which is confirmed by the First Appellate Court would go to show that the Trial Court has sentenced accused to pay fine of Rs.80,000/-, out of the fine amount Rs.50,000/- was ordered to be paid to the complainant as compensation in terms of Section 357 of Cr.P.C. and remaining Rs.30,000/- is defrayed as prosecution expenses, in default of payment of fine shall undergo simple imprisonment for 6 months. On the face of it, the imposition of sentence as ordered by the Trial Court which is confirmed by the First Appellate Court cannot be legally sustained.
15. The offence punishable under Section 138 of N.I.Act is punishable with imprisonment for a term which may extend to 2 years or with fine which may extend to twice the amount of cheque or with both. In the present case, the Trial Court did not exercise to impose sentence of imprisonment. However, while awarding the sentence of fine, the Trial Court has imposed fine less than the cheque
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NC: 2023:KHC:43176 CRL.RP No. 513 of 2017 amount to be paid to the complainant as compensation and remaining Rs.30,000/- is ordered to be defrayed as prosecution expenses. It appears that said error has also lost sight by the First Appellate Court. Therefore, in order to impose appropriate punishment, the interference of this Court is required. Looking to the facts and circumstances of the case, accused is sentenced to pay a fine of Rs.85,000/- and out of the fine amount in exercise of power under Section 357 of Cr.P.C. an amount of Rs.80,000/- is ordered to be paid to the complainant as compensation and remaining Rs.5,000/- is ordered to be defrayed as prosecution expenses, in default of payment of fine amount shall undergo simple imprisonment for 3 months. Only to this extent the order of the Trial Court which is confirmed by the First Appellate Court is required to be modified accordingly. Consequently, proceed to pass the following:
ORDER Revision Petition filed by the Revision Petitioner/accused is hereby partly allowed.
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NC: 2023:KHC:43176 CRL.RP No. 513 of 2017 The judgment of the First Appellate Court on the file of V Addl. District and Sessions Judge, Shivamogga sitting at Sagar, in Crl.A.No.10004/2017, dated 20.03.2017, in confirming the judgment of Trial Court on the file of Addl.Civil Judge and JMFC, Sagar in C.C.No.367/2013, dated 06.02.2017is ordered to be modified as under:
Accused is sentenced to pay a fine of Rs.85,000/-, out of the fine amount Rs.80,000/- is ordered to be paid as compensation and remaining Rs.5,000/- is defrayed as prosecution expenses, in default of payment of fine amount shall undergo simple imprisonment for 3 months in exercising of powers under Section 357 of Cr.P.C.
Registry to send back the records to Trial Court with a copy of this order.
SD/-
JUDGE GSR:List No.: 1 Sl No.: 16