Karnataka High Court
Smt Selvi Juliet vs Mr Mani on 20 August, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:33480
CRL.RP No. 1196 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
CRIMINAL REVISION PETITION NO. 1196 OF 2018
(397(Cr.PC)/438(BNSS))
BETWEEN:
SMT.SELVI JULIET
W/O UMESH
AGED ABOUT 40 YEARS,
NO 27, 2ND CROSS,
CHANDRAPPA COMPOUND,
BYRASANDRA, JAYANAGAR
BENGALURU - 560 011
...PETITIONER
(BY SMT.TAMILARASI.K., FOR SRI. VIJAYA KUMAR
K.,ADVOCATE)
AND:
MR MANI
S/O DORAISWAMY,
AGED ABOUT 44 YEARS
NO 49, SWAGATH COLONY,
Digitally signed TILAK NAGAR,
by JAYANAGAR,
GAVRIBIDANUR
SUBRAMANYA BENGALURU - 560 011
GUPTA
SREENATH ...RESPONDENT
Location: HIGH (BY SRI. PRABHUGOUD B TUMBIGI.,ADVOCATE)
COURT OF
KARNATAKA
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
SETASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 04.11.2017 PASSED BY THE LEARNED XVI
A.C.M.M., BENGALURU CITY IN C.C.NO.19347/2016 SO ALSO THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
29.9.2018 PASSED BY THE LXV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU IN CRIMINAL APPEAL NO.1683/2017.
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC:33480
CRL.RP No. 1196 of 2018
CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR
ORAL ORDER
This revision petition is preferred by the petitioner/accused challenging the judgment of conviction and order of sentence dated 29th September 2018 passed in Criminal Appeal No.1683/2017 by the LXV Addl. City Civil & Sessions Judge, Bengaluru, confirming the judgment of conviction and order of sentence dated 4th November 2017 passed in C.C. No.19347/2016 by the XVI ACMM, Bengaluru City, whereby the trial Court convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act ('N.I. Act' for short) and sentenced her to pay a fine of Rs.2,00,000/- within one month and out of the fine amount, Rs.1,90,000/- was ordered to be paid to the complainant as compensation and balance Rs.10,000/- was ordered to be adjusted towards costs to the State Exchequer; in default of payment of fine, the accused shall undergo Simple Imprisonment for six months. Petitioner is seeking -3- NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 to set aside the impugned judgments rendered by the trial Court as well as the appellate Court and consequently to acquit the accused for the offence punishable under section 138 of the N.I. Act.
2. For the sake of convenience, the parties shall be referred to as per their ranking before the trial Court.
3. Brief facts leading to filing of this petition are as follows:
It is the case of the complainant that the accused is known to him since several years and there was friendship between the two, accused had sought hand loan of Rs.1,82,000/- from him during the 1st week of June-2015 for meeting some urgent family needs and business commitments. He paid a sum of Rs.1,82,000/- by way of cash to the accused, which the accused agreed to repay within six months. Towards repayment of the loan, the accused had issued post dated cheque bearing No.889125 dated 25.6.2016 for a sum of Rs.1,82,000/- in favour of -4- NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 the complainant assuring that the same would be honoured on its presentation.
3.1 Complainant presented the said cheque to the bank for encashment. To his shock and surprise, the said cheque was dishonoured with an endorsement that "kindly contact Drawer/Drawee Bank and please present again", on 28.6.2016. Complainant intimated this fact to the accused, who did not respond to the same and has not paid the amount. Hence, left with no other alternative, the complainant got issued a legal notice dated 11.7.2016 by way of RPAD calling upon the accused to repay the dishonoured cheque amount within 15 days from the date of receipt of the said notice. However, despite receipt of notice, the accused did not repay the amount, but gave untenable reply. Since the amount was not paid pursuant to the legal notice, complainant filed the complaint against the accused under Section 200 of the Code of Criminal Procedure for the offence punishable under Section 138 of the N.I. Act.-5-
NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 3.2 Upon presentation of the complaint, the trial Court took cognizance of the offence under Section 138 of the N.I. Act and issued summons to the accused. In response to the same, the accused appeared before the Court and represented through an advocate. The accused pleaded not guilty and claimed to be tried.
3.3 In order to substantiate his case, the complainant examined himself as PW.1 and got marked Ex.C1 to Ex.C10. After conclusion of evidence of the complainant, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he denied the incriminating evidence against him and pleaded not guilty. The accused also adduced evidence as DW.1 and got marked the documents as per Ex.D1 and Ex.D2.
3.4 On the basis of evidence adduced by the complainant and the accused and the documents produced in the form of Ex.P1 series and Ex.D1 series and upon hearing arguments of learned counsels for the parties, the -6- NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 trial Court finding that the offence under Section 138 of the N.I. Act has been made out, convicted the accused for the said offence and sentenced her to pay a fine of Rs.2,00,000/- and out of which Rs.1,90,000/- was ordered to be paid to the complainant as compensation and Rs.10,000/- was ordered to be paid to the State Exchequer towards costs.
3.5 Being aggrieved by the said judgment of conviction and order of sentence, the accused preferred an appeal before the appellate Court in Criminal Appeal No.1683/2017. On re-appreciation and re-analysation of the oral and documentary on record and the arguments advanced by learned counsels for both the parties, the appellate Court did not find favour with the accused and accordingly dismissed the appeal confirming the judgment of conviction and order of sentence passed by the trial Court. Aggrieved by the same, the petitioner/accused is before this Court challenging the legality, correctness and propriety of judgments passed by both the Courts. -7-
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4. I have heard learned counsels for petitioner as well as respondent.
5. It is the vehement contention of learned counsel for petitioner that the impugned judgments rendered by both the Courts are illegal, arbitrary and there are patent irregularities and errors committed by both the Courts. Learned counsel further contends that both the Courts have not appreciated the evidence and the material placed on record in proper perspective. It is also contended that the amount of Rs.30,000/- was taken as loan by the accused from 'Samasta Micro Finance' and in the said organization one Mary Rita (sister of the accused) was employed as a Team Leader. While taking the said loan, a blank cheque was given as security to the said Mary Rita, which was misused by the complainant to defraud and make unlawful gain. It is also contended that there is no privity of contract between the accused and the complainant and absolutely there is no legal liability or debt, hence there was no need for the petitioner to give -8- NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 the cheque or execute a cheque in favour of the complainant.
5.1 Learned counsel contends that the cheque in question at Ex.C1 has been misused by the complainant having secured the same from Mary Rita, to make unlawful gain. According to the petitioner, the respondent is a stranger and not at all known to the petitioner. The petitioner has produced Ex.D1 and Ex.D2 in support of her case to show that she obtained loan from 'Samasta Micro Finance'. Therefore, she contends that the cheque/Ex.C1 which was given as security was misused by the complainant to make unlawful gain. Hence, same would not amount to legal debt/liability as per the provisions of the N.I. Act.
5.2 It is also vehement contention of learned counsel for the petitioner that there was no reason for the petitioner to secure any loan from the complainant and so also the complainant did not have necessary financial capacity to give loan to the petitioner. The -9- NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 respondent/complainant has admitted in the cross- examination that he is a plumber by profession earning annual income of Rs.8,000/-, which clearly goes to show that he was not having necessary source of income and financial capacity to give an amount of Rs.1,82,000/- to the petitioner as loan. This aspect has been ignored by the trial Court as well as the appellate Court and both the Courts have not considered the financial capability and capacity of the respondent/complainant to give hand loan of such huge amount, when he was merely working as plumber. He further contends that no document is placed on record by the respondent to show that he had necessary financial capability and capacity to give loan of Rs.1,82,000/-.
5.3 It is also contended by learned counsel for petitioner that the cheque that was presented to the bank came to be dishonoured with an Endorsement, "kindly contact Drawer/Drawee bank and please present again". When such an endorsement is given, he could have
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 presented the cheque once again as per the endorsement. But, instead of doing so, he has initiated legal action by issuing a notice to the accused under Section 138 of the N.I. Act. Learned counsel contends that there was no financial capacity for the respondent/complainant to give hand loan of such huge amount and there is no legal liability or debt as contemplated under the Act and accordingly he seeks to allow the petition and consequently set aside the impugned judgments rendered by the trial Court and the appellate Court and acquit the accused for the offence punishable under Section 138 of the N.I. Act.
5.4 In support of his contentions, learned counsel relies on the judgment of the Hon'ble Supreme Court in the case of Sri Dattatraya -vs- Sharanappa in Criminal Appeal No.3257 of 2024 decided on 7th August 2024 (paragraphs 27 to 30).
6. Per contra, learned counsel - Prabhugoud B. Tumbigi representing the respondent/complainant
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 vehemently contends that there is no illegality, perversity, arbitrariness or patent error in the judgments rendered by the trial Court as well as the appellate Court. He further contends that the complainant has given loan to the petitioner/accused, for which petitioner has given the cheque in question at Ex.C1 to the complainant. He contends that the complainant has admitted issuance of the cheque and so also signature on the cheque. However, in the reply to the legal notice, petitioner/accused has not stated anything with regard to the loan having been taken from 'Samasta Micro Finance' and in fact in paragraph-4 of the reply notice, it is mentioned that the cheque was given to her relative - Mary Rita for security purpose. Apart from that, nothing much is stated in the reply to the legal notice. The petitioner has subsequently created the concocted document at Ex.D1 with regard to the loan having been taken from 'Samasta Micro Finance', for which she handed over the cheque to Mary Rita and in fact it as an after thought.
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 6.1 It is contended by learned counsel for respondent that issuance of the cheque, holding of account and signature on the cheque having been admitted, ingredients of Section 138 of the N.I. Act are satisfied and therefore, there is a presumption in favour of the complainant and the said presumption is not rebutted by the accused. On these grounds, learned counsel seeks to dismiss the petition and consequently affirm the impugned judgments rendered by the trial Court and the appellate Court.
6.2 In support of his contention that return of the cheque by the bank with an endorsement 'referred to drawer' also constitute an offence under Section 138 of the N.I. Act, learned counsel for respondent places reliance on the judgment of the Hon'ble Supreme Court in the case of Laxmi Dyechem -vs- State of Gujarat and others reported in (2012)13 SCC 375, wherein it is held at paragraph-16 as under:
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 "16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in Magma case [(1999) 4 SCC 253 : 1999 SCC (Cri) 524] that the expression "amount of money ... is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act."
7. Having heard learned counsel for petitioner as well as learned counsel for respondent, the points that would arise for consideration in this revision petition are:
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018
i) Whether the petitioner/accused has made out any valid ground to show that there is illegality, perversity or patent error in the impugned judgments rendered by the trial Court and the appellate Court ?
ii) Whether the impugned judgments rendered by both the Courts are liable to be set aside ?
8. On careful perusal and examination of materials placed on record, both oral and documentary and on hearing the submissions of learned counsels for petitioner as well as respondent, it is seen that Ex.C1 dated 25.6.2016 was issued in the name of the respondent/ complainant for a sum of Rs.1,82,000/-. The complainant presented the said cheque for encashment and the same was returned with an endorsement, 'kindly contact Drawer/Drawee bank and please present again' on 28.6.2016. This was intimated to the petitioner, who did not respond or make payment of the dishonoured cheque amount. Legal notice came to be issued on 11.7.2016 to the petitioner calling upon her to make the payment within 15 days towards the dishonoured cheque. Despite this,
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 no payment was made. However, reply was sent by the petitioner denying the contents of the legal notice.
9. Therefore, it can be inferred that the petitioner/accused has received the legal notice and is aware of dishonour of cheque. It is also seen that the petitioner/accused has admitted issuance of the cheque and holding the account and so also the signature on the cheque at Ex.C1. But, however has taken a plea that the said cheque was not issued for any legal debt or liability. Be that as it may, after issuance of the legal notice as contemplated under Section 138(b) of the N.I. Act, since the petitioner did not repay the dishonoured cheque amount within 15 days, the complaint came to be filed by the respondent.
10. On fulfillment of necessary ingredients required under the provisions of Section 138 of the N.I. Act, the cause of action for filing complaint under Section 200 of the Code of Criminal Procedure is technically made out. On filing complaint, Section 139 of the N.I. Act comes into
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 play, which would show a presumption in favour of the complainant. Section 139 of the N.I. Act reads as under:
"139. Presumption in favour of holder: It shall be presumed, unless the contrary is proved, 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."
11. It is also necessary to state that under Section 118 of the N.I. Act, once a cheque has been drawn, indorsed, accepted by the accused, there is a presumption that it is drawn for a consideration. Therefore, when this presumption is ingrained in the statute itself, it is for the petitioner/accused to rebut the said presumption and establish that there was no such transaction or that it is a frivolous case or a concocted story, by way of cogent material evidence before the Court. Though Section 139 of the N.I. Act casts a presumption in law, it is a rebuttable presumption. It is only when the petitioner/accused rebuts the presumption by means of cogent evidence either oral or documentary, the onus
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 would shift on the respondent/complainant to satisfy such rebuttal of the accused.
12. In the present case on hand, learned counsel for petitioner/accused has made valiant efforts to disprove the case of the respondent/complainant and rebut the presumption by stating that petitioner has no relationship with the respondent and that the cheque was not issued to the respondent and it was merely given as a security to one Mary Rita, who is sister of petitioner/accused for the loan having been taken from 'Samasta Micro Finance', wherein Mary Rita was working as a team leader. The petitioner/accused also stepped into the witness box, adduced the evidence and produced the documents. It is also stated by the petitioner/accused that the respondent/complainant did not have necessary financial capacity and capability to lend loan to the petitioner. But, in her cross-examination, petitioner has admitted issuance of cheque, holding of the account, signature on the cheque and it is also stated that the cheque was issued as a
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CRL.RP No. 1196 of 2018
security to Mary Rita, but not to the
respondent/complainant.
13. I am afraid the theory putforth by the petitioner cannot be accepted by merely making such a statement, but the same has to be corroborated by oral and documentary evidence. Nothing worthwhile is placed on record to believe the version of the petitioner. Infact even in the reply to the legal notice, petitioner/accused has not stated anything with regard to the loan having been taken from 'Samsta Micro Finance'. Merely by making the statement that there was no relationship or no legal debt would not satisfy the requirement of rebuttal under Section 139 of the N.I. Act. To prove such rebuttal, the petitioner will have to depose and place on record other oral or documentary evidence, which would be believable rather than a mere suggestion and the statement.
14. As stated earlier, there is a presumption in favour of the respondent/complainant under Section 139 of the N.I. Act and even if the petitioner has taken up the plea
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 that the cheque has been issued for the purpose of security, the same cannot be accepted. Once the instrument is issued or given, whether it is blank or duly filled, the presumption has to be drawn in favour of the complainant under Section 139 of the N.I. Act and further under Section 118 of the N.I. Act, the holder is a holder in due course and the consideration would be valid consideration for legally recoverable debt. The presumption in favour of the complainant has not been rebutted. Nothing has been placed before the Court to disbelieve the oral evidence produced by the respondent/complainant.
15. All these aspects have been carefully examined by the trial Court. On examination of materials placed on record, there being no rebuttal of evidence of presumption putforth by the complainant, the trial Court appreciating the materials placed on record rightly convicted the accused for the offence punishable under Section 138 of the N.I. Act. On re-appreciation and re-evaluation of the
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 oral and documentary evidence on record, the appellate Court rightly confirmed the judgment of the trial Court.
16. On perusal of the oral and documentary evidence on record, it is seen that there was no need for the petitioner to hand over cheque to her sister - Mary Rita, who was working as a team leader in company and so also her name is not forthcoming in the complaint to show that she is the proper authority for having given loan to the petitioner and even according to the petitioner, her sister - Mary Rita is working only as a team leader. Petitioner has also failed to examine proper authority from the 'Samasta Micro Finance' from where the petitioner alleged to have obtained the loan and handed over the cheque. Therefore, there is lack of materials to disprove and rebut the presumption cast in favour of the complainant.
17. The scope of revision under Sections 397 and 401 of Cr.PC is very limited to the extent of examining the legality, correctness or propriety of any finding, sentence or order and
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 also to see whether there is any patent error committed by both the Courts. It is not for this Court to re-evaluate and re-analyse the entire evidence on record as this Court is not sitting in the arm chair of an appellate Court to consider the matter afresh. However, having perused the materials placed before the Court and the reasoning and finding of both the Courts, I do not find any material irregularity or perversity or patent error in the judgments of conviction and orders of sentence passed by both the Courts. The reasons assigned and the conclusion arrived at by both the Courts are just and proper. The petitioner/accused has not made out any ground to interfere with the well reasoned judgments rendered by both the Courts. Therefore, I answer the points (i) and (ii) raised in this revision petition against the petitioner/ accused.
18. In view of the discussion made hereinabove, I pass the following:
ORDER
i) Criminal Revision Petition is dismissed.
ii) The impugned judgment of conviction and order of sentence dated 4th November, 2017 passed by the trial Court in C.C.
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NC: 2024:KHC:33480 CRL.RP No. 1196 of 2018 No.19347/2016 confirmed by the appellate Court in Criminal Appeal No.1683/2017 dated 29.09.2018, is hereby upheld and affirmed.
Sd/-
(PRADEEP SINGH YERUR) JUDGE GSS